Hold-up on contaminated land

The introduction of the contaminated land regime under the Environment Act 1995 seems certain to be delayed until the autumn as the new ministerial team at the Department of the Environment (DoE) reviews its predecessor's proposals. A major issue facing them is whether to act on past Labour pledges to introduce a "foreseeability" defence against liability for contaminated sites and "completion certificates" for remediated sites which would protect land owners or occupiers against future liability claims.

The previous Government consulted last September on draft guidance on the identification of contaminated sites and ways of apportioning liability for clean-up. The DoE was ready to introduce the new regime this spring but was forced to put it on hold by the election. A response to last December's report on contaminated land from the House of Commons Environment Committee (ENDS Report 263, pp 22-24 ) was also held back.

In May, in reply to a parliamentary question about the Government's intentions from the Committee's chairman, junior Environment Minister Angela Eagle said: "we hope to make an announcement on how we propose to proceed before the summer recess and to provide a full response to the Environment Committee's report when Parliament reassembles in the autumn."1If the first step to implement the regime is not taken until the autumn, it will almost certainly not come into effect until early next year. This is because the Act requires both the guidance and the regulations to be laid before Parliament for 40 days, and the normal practice is to do this sequentially.

A major question confronting Ministers will be whether to proceed within the current statutory framework, or delay the introduction of the new regime until changes in primary legislation are made to enable Labour's policies on contaminated land to be implemented. DoE officials believe that the Government will take the former course, but Ministers have yet to get their teeth into the issue.

One feature of Labour policy, dating back to the party's environmental blueprint, In Trust for Tomorrow, published in 1994, and restated by Environment Minister Michael Meacher at a conference in March, implies a softening of the strict liability principles in the 1995 Act. Mr Meacher suggested that there should be a "defence against liability if the damage [arising from land contamination] could not have been foreseen."

A foreseeability test would please past polluters and current owners of contaminated sites, but would undoubtedly give rise to complex litigation over whether damage could reasonably have been foreseen at the time polluting activities were carried out. It would almost certainly have the effect of transferring significant liabilities to the public purse, and for that reason could be expected to run into serious objections from the Treasury.

Mr Meacher also suggested in March that, where a contaminated site had been cleaned up to the satisfaction of the environment agencies or a local authority, "any subsequent owner or occupier should not be held liable for dealing with any remaining historic contamination identified in future for which they were in no way responsible." Such sites would be eligible for a "completion certificate" attesting that official remediation requirements had been complied with.

The same scheme was recommended by the Royal Commission on Environmental Pollution in its 1996 report on soil, which argued that completion certificates would, in protecting landowners against new demands for clean-up, boost market confidence in the redevelopment of brownfield sites.

However, the recommendation was rejected by the Government in January, again mainly on the grounds that it did not wish to see public authorities acting as guarantors of the adequacy of remedial works for fear of seeing any residual clean-up liabilities transferred to the public purse (ENDS Report 264, pp 32-43 ). The Treasury can be expected to take a close interest in any attempt by the DoE to revive this idea as well.

There could, of course, be alternative means of raising finance to pay for clean-up where a past polluter or current owner or occupier is held not to be liable. In Trust for Tomorrow proposed that the cost of remediating "orphan" sites should be borne by charges on "current polluters" - but such an idea would be bound to provoke an outcry from industry.

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