Contaminated land—process for determining liability

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

  • Contaminated land—process for determining liability
  • What is the nature of the liability?
  • Retrospective liability
  • Strict liability
  • What is the procedure for determining liability?
  • General considerations when determining liability
  • Orphan linkages
  • Agreement on liability
  • Hardship considerations

Contaminated land—process for determining liability

What is the nature of the liability?

The Environmental Protection Act 1990, Pt IIA (EPA 1990) is a liability-based regime established to deal with the UK's legacy of contaminated land.

It is not a criminal offence for a person to contaminate land under Pt IIA. However, it is an offence to fail to comply with a remediation notice issued by the enforcing authority.

Retrospective liability

An 'appropriate person' may be liable for the costs of remediating contaminated land where the contamination occurred before the regime came into force on 1 April 2000, even if it was not unlawful at the time it was caused. The retrospective nature of the regime enables the enforcing authority to require remediation at historically contaminated sites which are unlikely to be remediated otherwise.

'New' contamination is generally dealt with by other regimes, such as the environmental permitting or environmental liability regimes.

Strict liability

The regime is strict for the ‘causation’ limb of the liability test, in that the enforcing authority does not need to prove that the original polluter intended to cause the contamination, or that it was negligent or otherwise at fault.

However, knowledge is required for those persons who are liable because they 'knowingly permitted' the presence of pollutants.

What is the procedure for determining liability?

Enforcing authorities should follow the five step procedure set out in the statutory guidance for

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