Member Article

A successful appeal against a remediation notice has highlighted the difficulties faced by local authorities when trying to secure the remediation of contaminated land.

The appeal is only the second appeal to the Secretary of State for Environment, Food and Rural Affairs (SoS) since the contaminated land regime in Part 2A of the Environmental Protection Act 1990 was implemented in 2000.

Background

The Part 2A regime requires local authorities to identify land that meets the criteria for designation as ''contaminated land'' and, where remediation cannot be procured voluntarily, to serve a ''remediation notice'' on the person(s) responsible (who are known as ''appropriate persons''). This is usually those who have caused or knowingly permitted contamination, but where they cannot be identified, then it is the current owner/occupier. An appropriate person may escape liability through the application of a series of ''exclusion tests''. If served with a remediation notice, an appropriate person may appeal to the SoS, as in this case.

Prior to 1957 a gasworks operated in Willenhall, West Midlands. McLean Homes (subsequently renamed Jim 2 Limited) bought the site from Walsall Metropolitan Borough Council (WMBC) in 1972, with planning permission for residential development. Part of the site was sold to another developer in 1972 and the two developers built approximately 90 homes.

In 2007, WMBC investigated the site under its contaminated land strategy. In 2012 WMBC determined that land within two zones was ''contaminated land'' owing to the presence of benzo(a)pyrene (BaP), a known carcinogen that posed a ''significant possibility of significant harm''. WMBC considered Jim 2 to be the ''appropriate person'' for remediation and served Jim 2 with a remediation notice in March 2012. Jim 2 appealed against the notice and the appeal was heard at a public inquiry by an Inspector appointed by the SoS.

The SoS''s decision

The SoS issued her decision in April 2017. Agreeing with recommendations detailed in the Inspector''s report, she allowed the appeal, quashing the remediation notice. Although the parties agreed that the BaP posed a possibility of significant harm, WMBC''s risk assessment had not been based on sound science and had failed to demonstrate that there was a ''significant'' possibility of significant harm. WMBC''s identification of the land as ''contaminated land'' was therefore unreasonable.

Since the remediation notice was quashed on the first ground of appeal, the SoS did not need to consider Jim 2''s other grounds of appeal. However, she helpfully did so, in order to assist understanding of what approach should be taken towards relevant guidance and legislation. Although not binding precedent, the decision provides useful insight, given the rarity of appeal decisions.

The SoS''s key findings were:

• ''Causing or knowingly permitting'' contamination means a person must cause or knowingly permit the specific substance that causes contamination, rather than contamination generally.
• ''Knowingly permitting'' requires: knowledge of a substance''s presence, power to remove it, the opportunity to exercise that power and a failure to do so.
• The site was not ''sold with information'' by WMBC to Jim 2. An acknowledgement in the sale contract that parts of the site might be unsuitable for building was insufficient to give Jim 2 knowledge of the presence of BaP. However, Jim 2 subsequently acquired such knowledge and became a ''knowing permitter''.
• The Inspector''s report and SoS''s decision letter provide the first proper analysis of the little known ''Exclusion Test 6'' in the statutory guidance - ''introduction of pathways or receptors''. Original causers or knowing permitters can be excluded from liability where a subsequent owner introduces new pathways or receptors. The Inspector''s report and SoS''s decision letter both stated that the gasworks operators would have been excluded from liability under this test, if still in existence.

Key lessons

It is now questionable whether the site will be remediated and, if so, who will remediate it. The site is contaminated in the ordinary sense and the parties to the appeal all agreed that it poses a risk of significant harm to residents, even if the SoS concluded that it did not reach the high threshold to be classified as ''contaminated land'' under the Part 2A regime.

This decision is arguably positive for historic polluters who have sold contaminated sites that have subsequently been redeveloped, but it may be problematic for developers who have introduced new pathways or receptors onto sites. It also raises the question of whether any other local authorities will have the political will and resources to serve a remediation notice, given the strong likelihood of an appeal.

Sellers of property may also wish to revisit any ''sold with information'' wording they use in sale contracts and to consider the application of Exclusion Test 6 when selling to developers, in the light of the SoS''s findings.