Site remediation costs may fall to developers

Developers, housebuilders and utility companies could be held liable for remediation works on their sites, even if contam-
ination occurred before they took ownership of the land, following a recent ruling in the High Court.

The case of National Grid Gas -vs- the Environment Agency (EA) ruled that the company, rather than the previous gas operating firms, should be held partly responsible for clean-up works, estimated at around £400,000 to £700,000. This follows contamination being found at a housing estate at the former gas works site at Bawtry, Doncaster.

Despite the fact that the properties were constructed by developer Kenneth Jackson in 1966, Mr Justice Forbes ruled that under Part 2A of the Environment Protection Act, National Grid was the ‘appropriate person’ – particularly as Kenneth Jackson was no longer in business.

National Grid, the new owner of the site, argued that it did not itself cause or knowingly permit the contamination in question and so cannot be the appropriate person.

However, the EA concluded that it was ‘empowered to undertake the remediation work and to recover the appropriate proportion of the reasonable costs in doing so from National Grid’ – a view shared by Justice Forbes in throwing out National Grid’s case.

This is only the second major case to be considered under Part 2A and, according to Andrew Wiseman of Trowers & Hamlins, has "major implications for
site owners and developers".

He adds: "This ruling makes it clear that if a site is determined as contaminated land under Part 2A, then the site owner or developer could be liable for cleaning up that land. It’s a significant ruling."

Richard Pawlyn, from environmental screening report provider Landmark Information Group, believes the number of cases under Part 2A are only likely to increase.

"Developments on brownfield land, such as this, carry a far greater risk of contamination. There are 418,000 past industrial sites in the UK and, given the government’s drive to build 70% of new developments on brownfield land, it would not be surprising to see an increase in such cases being brought to court."

Landmark has estimated that up to one in four commercial properties in the UK’s largest cities face exposure to potential environmental risks and urges companies to conduct environmental searches from the outset and carry out environmental screening.