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Who is an “Appropriate Person” for the Purposes of Remediation of Contamination?

Karen Jones

Partner Karen Jones, in our Planning and Environmental Law team, reviews the case of Powys County Council v Price [2017] involving the Environmental Protection Act 1990.

The Court of Appeal have considered again the question of who is an “appropriate person” for the purposes of remediation of contamination under the provisions of Part II A of the Environmental Protection Act 1990.  The case of Powys County Council v Price [2017] revisited the established position set out by the House of Lords in R (Transco plc) v Environment Agency [2007] where the House of Lords ruled that Transco were not an appropriate person in respect of the activities of its predecessors.

In the Powys case the predecessors of Powys (first Builth Wells Urban District Council and subsequently the Borough of Brecknock) operated a landfill site until 1993 at a farm in Builth Wells, Powys.  The Borough of Brecknock was abolished on 31 March 1996 and Powys came into existence under the Local Government reorganisation provisions with rights and liabilities transferred under the Local Government (Wales)( Property, etc) Reorganisation Order 1996 on 1 April 1996.  Powys assumed that it had taken over its predecessor’s liability for the site.  Monitoring undertaken led to concerns about leachate pollution of the local rivers. 

 On a subsequent review by the Council it was decided that, following the Transco case, Powys was not responsible for operations that had ceased before 1996.  Powys terminated its tenancy of the treatment and filtration plant and pumping station used for monitoring asserting that the Council was not liable for any contamination.  The owners challenged this interpretation of the law and sought a declaration that the transfer of liabilities from Brecknock to Powys included a contingent liability for contaminated land under part II A of 1990 Act.

The issue before the Court was whether Powys was an “appropriate person” under Section 78 (2) of the 1990 Act.  Appropriate persons consist of;  class A persons who are those who caused or knowingly permitted the contaminating substance to be present in on or under the land; or class B persons where no class A person can be found and liability passes to the current owner or occupier.  These provisions operate even where an original polluter has disposed of his interest in land and also where contamination may have occurred before Part II A came into effect.

The Court accepted that Part II A does not operate retroactively so as to deem a predecessor body to have been under a liability which only arose under legislation which came into force after the predecessor body ceased to exist.  The Court said that in such circumstances very clear words would be needed if it were intended to impose on a successor body liabilities which were non-existent at the date of succession and created later.  The succession provision under consideration stated that “all the property, rights and liabilities of the old authority shall… vest in that successor authority”. The opinion of the Court was that wording was not extensive enough in its effect and did not impose a liability on the successor body. The Court clearly recognised that the structure of Part II A might result in gaps in responsibility in the context of succession legislation.

This decision, which is undoubtedly welcome for local authorities with similar successor responsibilities, could play out harshly for individual landowners who may be liable as class B persons.  If no class A person can be found it may leave an innocent landowner plugging the gap, as liability will pass to the current owner or occupier of the site regardless of whether it was aware of the contamination.

For more information, please contact Karen Jones or a member of our Planning and Environmental Law team.

This blog article was first published in the Waste Planning Magazine.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.