Contaminated land strategy

When a significant pollutant linkage(s) has been identified, the procedure relating to the apportionment of liability must commence. This has five distinct stages as follows:

• Identifying potential appropriate persons and liability groups.
• Specifying remediation actions.
• Attributing responsibility to liability groups.
• Assessing exclusion from liability within any liability group.
• Apportioning liability between members of a liability group.

8.1 Identification of Appropriate Person(s) and Liability Groups These procedures are complex, commencing with the establishment of liability groups. All appropriate persons for any one pollutant linkage are a ‘liability group’. These may be either class ‘A’ or class ‘B’ persons.

APPROPRIATE PERSONS - Class ‘A’

These are the polluters but also include persons who “knowingly permit pollution”. This would include developers who leave contamination on a site that subsequently results in the land being determined as contaminated land. 

APPROPRIATE PERSONS - Class ‘B’

Where no class ‘A’ persons can be found, liability reverts to the owner or the occupier of the land, this may include leasholders These are known as class ‘B’ persons.

The Council will make all reasonable enquiries to identify class ‘A’ persons before liability reverts to owners or occupiers.

8.2 Specifying Remediation

The Council will specify what remediation measures are to be carried out in any Remediation Notice, with the reasonableness of the measures being an important factor. As such they will be both appropriate and cost effective, employing ‘best practicable techniques’ with the aim of the remediation being to ensure that the land is no longer contaminated.

8.3 Attributing Responsibility

Appropriate persons or liability groups must be considered for each significant pollutant linkage. Therefore, where a site has had a series of contaminative uses over time, each significant pollutant linkage will be identified separately and responsibility considered for each.

8.4 Assessing Exclusion

The Council will consider whether any members of a liability group should be excluded, in accordance with the rules for exclusion set out in Part 2A of the EPA 1990. There are numerous tests specified to identify Class ‘A’ groups who should be excluded from liability. These will be applied in sequence and separately for each pollutant linkage. The exclusion of Class ‘B’ persons is much less complex. A single test merely excludes those who do not have an interest in the capital value of the land. Tenants therefore are excluded.

8.5 Apportionment of Liability

The Council decides how to apportion liability between members of each liability group who remain after any exclusions have been made.

• The financial circumstances of those concerned have no relevance.
• The Council must consult persons affected to obtain information (on a reasonable basis having regard to the cost). If someone is seeking to establish an exclusion or influence an apportionment to their benefit, then the burden of providing the Council with supporting information lies with them.
• Where there are agreements between appropriate persons the local authority must give effect to these agreements, subject to paragraph 7.30 of the Revised Contaminated Land Statutory Guidance.

The statutory guidance also sets out considerations to which the enforcing authority should have regards when making any cost recovery decision. Therefore, the Council will consider whether any of those liable for the remediation of “contaminated land” may not be able to afford the necessary work before serving any remediation notices.

8.6 Orphan Linkages

It is possible that either no Appropriate Person(s) can be found for a pollution linkage on a contaminated land site, or that all members of a liability group benefit from one or more exemptions. In such circumstances that pollution linkage shall be treated by the Council as an Orphan Linkage and the enforcing authority will have the power to carry out the remediation action(s) itself, at its own cost.