Environment: UK Developments

Profession:Barlow Lyde & Gilbert
 
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CASES

CONTAMINATED LAND. On 14 and 15 June, in Circular Facilities (London) Limited v Sevenoaks District Council, the Sevenoaks Magistrates Court heard the very first appeal of a Remediation Notice issued under the Contaminated Land Regime set out in Part IIA of the Environmental Protection Act 1990 ("EPA 1990").

The site in question had been a brick and tile works until the early 1900s. During the 1960s and 1970s, redundant clay pits at the site were filled in with, amongst other things, organic material. In 1978, a Mr Scott bought the site, selling it one year later to Circular Facilities, a developer. Mr Scott and Circular Facilities were an informal partnership, with Mr Scott being responsible for building nine houses on Circular Facilities' behalf.

A geotechnical report submitted to the planning authority as part of the planning process mentioned the presence of organic materials and gases resulting from their decomposition, showing that Circular Facilities must have known about their presence.

The site was determined by the Council to be "contaminated land" under Part IIA because the organic fill materials were steadily decomposing and emitting carbon dioxide and methane in quantities that posed a risk to the health of the residents and to their houses. The Council identified Circular Facilities as an "appropriate person" (ie someone who had "caused or knowingly permitted" the presence of the organic material and gases) and served a Remediation Notice on it. No other persons were served. Mr Scott had died some years previously, thus preventing his identification under Part IIA as an appropriate person. Circular Facilities appealed the Remediation Notice on the bases, among others, that it was not the "appropriate person" in respect of the contamination and that the former owner of the land, who had been responsible for filling the clay pits, ought to have been determined to be an appropriate person.

The Court determined that Circular Facilities was an appropriate person. It knew about the organic material and the gases due to the report on the planning file, which it must have considered. Failing to take appropriate steps to address the problem during its redevelopment of the site thus made Circular Facilities a "knowing permitter" of the contamination. The Court also concluded that the former owner of the site was not an appropriate person. He was, at least in part, responsible for filling the clay pits and could be said to have "caused or knowingly permitted" the presence of the organic matter. However, he satisfied a Part IIA "exclusion test" because Circular Facilities subsequently introduced people and houses to the site, thus resulting in its determination as contaminated land.

DEFINITION OF WASTE. On 17 June, in R (on the application of Paul Rackham Ltd) v Swaffham Magistrates Court (defendant) and the Environment Agency (interested party), the High Court was asked once again to consider the legal definition of "waste".

Mr Rackham contended that composted material (made at his farm in 1999 and 2000 from waste-derived material, green waste and farm manure) was not waste. The Environment Agency ("EA")...

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