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A fuzzy contaminated land issue comes into sharp focus

08/09/2017

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United Kingdom

In this Court of Appeal decision a local authority in Wales has side-stepped liability for land contaminated by its predecessor – and left the landowner with the bill

Brecknock Borough Council operated a landfill site from the 1960s until 1992, when the site became part of a farm owned by the landowners, and thereafter it undertook remediation works to bring the site back into agricultural use. 

In 1996, Brecknock was merged into Powys County Council, and Powys assumed that it inherited Brecknock's liability for the site.  Powys continued to carry out monitoring and remediation activities on the site.

In 2013, Powys undertook a review of this liability, questioning whether the strict statutory liability for contamination introduced by Part IIA of the Environmental Protection Act 1990 had in fact been passed on to it when that legislation took effect in Wales in 2001.

It concluded that the relevant legislation did not operate retrospectively.  Brecknock did not exist in 2001, and therefore it was not under any liability in respect of Part IIA which was capable of passing to Powys.  The Court agreed.

While the case did turn on the interpretation of particular legislative provisions in Wales, it highlights the need for caution in circumstances where there has been a local authority re-organisation - a not uncommon occurrence over the long timeframes involved in contamination of land. 

This case should be of interest to prospective purchasers, developers or lessors of landfill sites or local authority land or of land purchased or leased from all successor local authority bodies, former statutory undertakers or companies. 

It is a tough reminder to undertake thorough professional due diligence on a site, particularly where the local authority has undergone a re-structure in the past.

Landowners and occupiers, including residential ones, of former local authority land may also wish to review their position as we expect this decision will impact on redevelopment value as local authorities seek to rely on it to re-evaluate their contaminated land liabilities.   



The case is Powys County Council v Price and another [2017] EWCA Civ 1133; [2017] PLSCS 168.
The legislation considered is Part IIA of the Environmental Protection Act 1990

 

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