Environmental Law
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CONTAMINATED LAND
ENVIRONMENTAL PROTECTION ACT 1990
PART IIA
(INTRODUCED BY ENVIRONMENT ACT 1995)
Contaminated Land
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 Statutory regime defines contaminated land and
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regulates allocation of liability/compensation/cleanup
Part IIA Environmental Protection Act 1990
Contaminated Land (England) Regulations 2006
DEFRA Circular 01/2006 Contaminated Land
DEFRA Guidance on legal definition of CL, 2008
Radioactive Contaminated Land (Modification of
Enactments) (England) Regulations 2006
Contaminated Land
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 Difficulties in regulating contaminated land:
 1. Uses of land are diverse and diffuse, eg agriculture
Savage v Fairclough [2000] EnvLR 183 CA
 2. Potential consequences:
Harm to human health Hancock and Margereson v
JW Roberts [1996] EnvLR 304 CA
Environmental harm Cambridge Water [1993]
 3. Nature of contamination
Contaminated Land
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 4. Stigma/blight Blue Circle v Min. of Defence [1999]
 5. Clean-up standards ‘Suitable for Use’
 6. Strict liability
 7. Retrospective liability/historic contamination
 8. Ascertaining who is/who are liable and how to
apportion liability
Definition of Contaminated Land
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 S78A(2) EPA 1990 Any land which appears to the local
authority in whose area it is situated to be in such a
condition, by reason of substances in, on or under the
land, that:
(a) significant harm is being caused or there is a
significant possibility of such harm being caused; or
(b) significant pollution of controlled waters is being
caused or there is a significant possibility of such harm
being caused
Contaminated Land EPA 1990
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 S 78A(4) ‘Harm’ means harm to the health of living
organisms or other interferences with the ecological
systems of which they form part and, in the case of
man, includes harm to his property.
 S78A(5)‘Significant’ harm or ‘significant possibility
of such harm being caused: Statutory guidance
issued by Secretary of State [in accordance with
s78YA]
Contaminated Land
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 Local Authorities and Environment Agency =
enforcing authorities in relation to land identified as
contaminated land and special sites (Reg 2),
respectively
 Duty to act in accordance with guidance issued by SS
(a) Significant pollutant linkage must exist between:
(i) contaminant/pollutant and
(ii) Receptor or target (humans/property) by a
(iii) Pathway
(iv) Significant
Contaminated Land
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 (b) Receptor/targets
 (c)Nature of harm
 (d) Significant possibility of significant harm
 (e) Pollution of controlled waters s 78A(9) EPA 1990
Identification of contaminated land
 Duty to inspect s78B(1) EPA 1990 Local Authority
 Acting in accordance with statutory guidance
 (a) contaminated land LA (B) special sites s78C EA
Contaminated Land EPA 1990
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Notice and Consultation
 s78B(3)
 s78H(1) Exceptions s78H(7) s78H(4)
 Remediation Statement s78(H)7 Remediation
Declaration s 78H(6)
 Duty to serve Remediation Notice
 s78E(1) (4) Having regard to guidance
 Precluded from serving RN
 (a) other statutory provision
Contaminated Land EPA 1990
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 (b) unreasonable s78H (5)(a) Remediation
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Declaration s78H(6)
(c) voluntary remediation
(d) hardship s78N(3)(e) s78(H) (5)(d)
(e) enforcing authority is appropriate person
s78H(5)(c)
(f) imminent danger of serious harm or pollution
s 78N(3)(a)
(g) pollution of controlled waters. Owners/occupiers
s 78J
Contaminated Land EPA 1990
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 (h) reasonable enquiry. No appropriate person
s 78(3)(f)
 Under statutory regime enforcing authority may
carry out clean-up works and seek to recover costs
from appropriate person
Contaminated Land EPA 1990
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 s78A(7) ‘Remediation’ means:
(a) the doing of anything for the purpose of assessing the
condition of (i) the contaminated land in question; (ii) any
controlled waters affected by that land; or (iii) any land
adjoining or adjacent to that land;
(b) the doing of any works, the carrying out of any operations or
the taking of any steps in relation to any such land or waters
for the purpose (i) of preventing or minimising, or
remedying or mitigating the effects of, any significant harm,
or any significant pollution of controlled waters, by reason
of which the contaminated land is such land; or (ii) of
restoring the land or waters to their former state; or
(c) the making of subsequent inspections from time to time for
the purpose of keeping under review the condition of land
or waters
Contaminated Land EPA 1990
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 s78A(9)(b) ‘Appropriate person’ means any
person who is an appropriate person, determined in
accordance with s78F, to bear responsibility for any
thing which is to be done by way of remediation in
any particular case
 s78F(2) ... ‘any person, or any of the persons, who
caused or knowingly permitted the substances, or
any of the substances, by reason of which the
contaminated land in question is such land to be in,
on, or under that land is an appropriate person
Contaminated Land EPA 1990
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 Circular Facilities (London) Ltd v Sevenoaks
District Council [2005]
 R (National Grid Gas PLC (formerly Transco) v
Environment Agency [2007] HL
Contaminated Land EPA 1990
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 Class A Persons s 78K Class B persons s78F(4)
 Allocating Liability (a) liability groups (b) exclusion
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tests
Apportionment of liability
Service of Remediation Notice s78E(1) and Regs 4&5
Appeal s78L(1) Regs 7 & 8
Non-compliance offence s78M
Enforcement agency works s78N Cost recovery s78P
Public Register s78R Reg 13