Contaminated land—excluding liability
Contaminated land—excluding liability

The following Environment practice note provides comprehensive and up to date legal information covering:

  • Contaminated land—excluding liability
  • Determining liability
  • Class A persons
  • How to apply the tests
  • Related companies
  • Test 1: Excluded activities
  • Test 2: Payments for remediation
  • Test 3: Sold with information
  • Test 4: Changes to substances
  • Test 5: Escaped substances
  • More...

Determining liability

Enforcing authorities should follow the five step procedure set out in the statutory guidance for determining liability under the Environmental Protection Act 1990, s 78F (EPA 1990). Not all stages of the procedure will be relevant in all cases. See Practice Note: Contaminated land—process for determining liability.

Step four in the procedure requires the enforcing authority to determine whether any members of a liability group should be excluded from liability.

Exclusion issues may arise where the history of a site is complex. For example, a succession of different occupiers or different industries may all have contributed to the presence of pollutants and it may be fair for some of them to be excluded.

Importantly, an appropriate person cannot be excluded from a liability group if they are the only person in that group. Similarly, where there are two or more appropriate persons not all of them can be excluded from a liability group.

Different exclusion tests apply to Class A liability groups and Class B liability groups. The six complicated exclusion tests apply to Class A liability groups only.

Class A persons

How to apply the tests

The exclusion tests for Class A persons are subject to the following overriding guidance:

  1. they must be applied to each significant contaminant linkage (SCL) and, therefore each liability group, separately, eg exclusion from one SCL/liability group does not result in automatic exclusion from

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