Liability
6.0 Principles of Assigning Liability
It is the intention of Part 2A that the appropriate person, ideally the ‘polluter’, pays for the cost of remediation, as a result of voluntary or formal action.
The Council will carry out inspections and assessments as set out in Chapter 5. It will then decide whether the land is statutory contaminated land and decide whose responsibility it is for managing the contamination.
As part of the process of determining that land is contaminated land the Council will have identified at least one significant pollutant linkage resulting from the presence of at least one significant pollutant: land may be declared contaminated upon the identification of one significant contaminant linkage. Full liability, therefore, cannot be decided until all significant contaminant linkages have been identified. Only then can the procedure relating to the apportionment of liability commence.
The apportionment of liability has five distinct stages as follows:
- Identifying potential appropriate persons and liability groups
- Characterising remediation actions
- Attributing responsibility to liability groups
- Excluding members of liability groups
- Apportioning liability between members of liability group
These procedures are complex and will be undertaken in accordance with the statutory guidance.
6.1 Identifying Liable Parties
The Council is responsible for identifying relevant parties who are obligated to undertake remedial works.
The legal liability for remediating contaminated land follows a hierarchy: in the first instance the person caused the contamination would be liable, for example the original operator of the site or a subsequent developer who built houses on the land. If these parties cannot be found or no longer exist then liability passes to the current landowner. In some cases this might be the owner-resident of the site.
All appropriate persons with responsibility for any one linkage are a ‘liability group’. These may be Class A or Class B persons.
Appropriate persons: Class A
These are generally the polluters who caused the contamination in the first place but also include persons who ‘knowingly permitted’ the contamination. This includes developers who leave contamination on a site which subsequently results in the land being determined as contaminated.
Appropriate persons: Class B
Where no Class A person has been identified, liability reverts to the owner or occupier of the land. These are Class B persons, who were not responsible for causing the original pollution. Class B parties are only liable for remediation of contamination within the boundaries of their property and cannot be held liable for any pollution of controlled waters.
The Council will make all reasonable enquiries to identify the Class A persons before liability reverts to the current owner or occupier.
The matter of appropriate persons must be considered for each significant pollutant linkage. Therefore, where a site has had a series of contaminative uses over the years, each significant contaminant linkage will be identified separately and liability considered for each.
6.2 Orphan Sites and Orphan Linkages
A situation may arise where there is at least one significant contaminant linkage at a site and there is no Class A or Class B person found. Then the site would be termed an “orphan site” and the enforcing authority would bear responsibility for carrying out remediation of the land and bearing the cost of that remediation.
6.3 Apportionment of Costs
Usually, the members of a liability group will have the total costs falling on the group as a whole apportioned between them. It may also be necessary to apportion the costs between liability groups. The Council will have regard to the Statutory Guidance in the application of the exclusion and apportionment tests.
6.4 Special Sites
The Council and the Environment Agency can both identify potential ‘Special Sites’ but a site cannot be designated a Special Site until the Council determines it as ‘Contaminated Land’.
If the Council requests an inspection of a potential Special Site, the Environment Agency will prioritise this site alongside its other potential Special Site inspection requests.
Once the Council is satisfied that a site has been determined as Contaminated Land and designated a Special Site, the Council will notify the Environment Agency of this fact in writing. If the Agency disagrees on the designation, it must notify the Council of that fact in writing within 21 days.
In cases where the Environment Agency and the Council disagree the matter will be referred to the Secretary of State who may confirm or reverse the Council’s decision with respect to all or part of the land. The Council will, in all cases, consult with the Environment Agency prior to giving formal notice.
If the Agency agrees or fails to inform the Council with 21 days, then the land will be designated a Special Site. The responsibility of securing remediation then passes to the Environment Agency although the Council must complete the formal notification process. This will involve the Council also notifying the owner, occupier and appropriate person with respect to that site or land.