Land contamination—liability for migration
Produced in partnership with ELM Law

The following Environment practice note produced in partnership with ELM Law provides comprehensive and up to date legal information covering:

  • Land contamination—liability for migration
  • What causes contaminants to migrate?
  • Liability regimes that apply
  • Contaminated land regime
  • Liability of contaminator for off-site migration
  • Liability of persons onto whose land the substances escape
  • Escapes to further land
  • Subsequent owners or occupiers of the land from which the escape occurred
  • Chemical reactions or biological processes
  • Excluding liability
  • More...

Land contamination—liability for migration

What causes contaminants to migrate?

Contamination from historic uses or pollution spills can migrate off-site or on-site for various reasons:

  1. many types of contaminants are mobile and can migrate for significant distances in groundwater and surface water

  2. new contamination can interact with existing contamination and result in chemical or biological changes

  3. construction work, remediation, intrusive investigations, mining or other disturbance of the ground can mobilise existing contamination or create pathways for the pollution to escape

  4. flooding can mobilise residual contamination

Liability regimes that apply

Several regimes deal with migration of contaminants:

  1. contaminated land regime

  2. water pollution legislation

  3. environmental damage regulations

  4. environmental permitting

  5. common law claims

Contaminated land regime

Part IIA of the Environmental Protection Act 1990 (EPA 1990) contains complicated provisions dealing with the escape of contaminating substances to other land.

Liability of contaminator for off-site migration

The person who ‘caused or knowingly permitted’ the substances to be in, on or under the original land is also liable for the substances that have escaped or migrated onto other land.

For further information on causing and knowingly permitting, see Practice Note: Contaminated land—identifying Class A and B appropriate persons and Q&A: How easy is it to become a knowing permitter of contaminated land?

In Redland Minerals v Secretary of State (St Leonards Sandridge case):

  1. bromate contamination originating from a former chemical works impacted public water supplies

  2. flash flooding washed contaminants into

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