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Derek Ching
Derek Ching,
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Court of Appeal decision on closed landfill site provides unwelcome news for developers and landowners
04 August 2017

A Court of Appeal decision on the 27 July 2017 in the case of Powys County Council v Price and another has overturned a High Court decision which held the County Council liable for contamination associated with a closed landfill site which had been operated by a predecessor Council. The lower court had decided that the statutory regime which gave effect to local government reorganisation in 1996 had passed over the liability which the old council would have held had it remained in existence. The Court of Appeal decided otherwise.

The closed landfill in question was located on farmland which had been restored following closure of the landfilling operations. The landowners wanted to ensure that it was made clear that Powys County Council remained the “appropriate person” as a result of having succeeded to the liabilities of the old council upon the local government reorganisation.

The result of the Court of Appeal’s decision is that the current County Council is not responsible for the liability under Part 2A of the Environmental Protection Act as a result of the  land being contaminated because that legislation only came into force some years after the reorganisation. The liabilities created by the introduction of the Contaminated Land Regime could not be said to have existed in 1996 when the old Council was dissolved and so the County Council cannot have inherited those liabilities.

Had the old council remained in existence the landowners would have been able to point to them as the “appropriate person” who was liable under the Contaminated Land Regime having been the person who caused or knowingly permitted the contamination to arise.

In enforcing the Contaminated Land rules the relevant enforcement bodies (the Environment Agency and local government) must first bring their claims against the appropriate persons in the statutory order starting with identifiable Class A persons (those who caused or knowingly permitted the contamination or anyone to whom those liabilities have been transferred). However if no Class A persons can be identified as being then liability as “an appropriate person” defaults to the current owner or occupier of the site.

For developers seeking to acquire land at or near closed landfill sites this case is a warning that they have to be extremely vigilant in assessing the state of the land they are interested in acquiring. It cannot be assumed that remediation and monitoring of a closed Council landfill site will be the responsibility of the local authority, as in many cases there has been local government reorganisation in the intervening years. The result in such cases will be that the owner and occupiers of the site will be in the frontline for any enforcement action if the condition of the land is sufficiently serious to qualify as “contaminated” and requiring remediation.

The Contaminated Land rules are structured so as to encourage remediation of contaminated sites through the planning process during the course of redevelopment and so the EA will be slow to take enforcement action under the Contaminated Land rules if there is a realistic prospect of development taking place.  However where land is held speculatively for a long period, the result of this case is that there is a greater exposure to liability.

Landowners with closed former Council landfill sites on their land will be doubly disappointed in that Councils which did not exist at the time when the contaminated land liability came into force will regard themselves as no longer having any responsibility for monitoring, supervision or remediation of the land, leaving it as a landowner problem. Furthermore the existence of such risks without any local government responsibility can only help to devalue the land as a redevelopment proposition.  

For further information on this issue or to discuss how the Development and Housebuilding team can help you please contact Derek Ching on [email protected].
 

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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