The following Environment guidance note provides comprehensive and up to date legal information covering:
Local authorities (LAs) have sole responsibility for determining whether land is contaminated land under the Environmental Protection Act 1990, Pt IIA (EPA 1990). They cannot delegate this responsibility, other than in accordance with their statutory powers under the Local Government Act 1972, s 101.
LAs may rely on information or advice from the Environment Agency (EA), Natural Resources Wales (NRW) or a suitably qualified expert when considering whether to determine land. However, the ultimate decision must be made by the LA. In practice, the determination is likely to be made by an officer acting under delegated authority or by committee resolution.
Whoever the decision maker is, they must ask themselves whether the land is, or is not, contaminated land. At this stage, it is not relevant to consider whether it is appropriate to serve a remediation notice. That question follows the determination.
For example, in Shelley, a LA committee asked itself the wrong question when determining whether a statutory nuisance existed. It considered whether it was appropriate to serve an abatement notice, instead of whether there was in fact a statutory nuisance. In construing the committee's resolution, the court took into account the officer's report which was referred to in the minutes of the resolution. In particular, the report failed to give any clear advice to the committee
**excludes LexisPSL Practice Compliance, Practice Management and Risk and Compliance. To discuss trialling these LexisPSL services please email customer service via our online form. Free trials are only available to individuals based in the UK. We may terminate this trial at any time or decide not to give a trial, for any reason. Trial includes one question to LexisAsk during the length of the trial.
To view the latest version of this document and thousands of others like it, sign-in to LexisPSL or register for a free trial.
Existing user? Sign-in
Take a free trial
Take a free trial
0330 161 1234