Former Landfill Contaminated Land Responsibility

In every part of the country there are former landfill sites, with potentially significant liability for land contamination and clear up, a liability that can extend beyond the landfill to neighbouring land. The risks are illustrated by a recent case.

Once upon a time a local authority ran a landfill, there was a local government reorganisation so the site came within the boundary of a new local authority, so obviously they would be held responsible? Apparently not always!

The case under consideration concerns a landfill which Brecknock Council in Wales ran on a farm from the 1960’s to 1993. In 1996, following a local government re-organisation, Powys County Council took over responsibility for the area and the Council assumed it has taken over liability for the site.  Because of concern about leakage of pollution into a nearby river it entered into a lease with the landowners in 2001 for the installation of a treatment plant and carried out monitoring until 2015.

The contaminated land regime which sets out the legal framework for identifying contaminated land and allocating responsibility for clean-up  was introduced in the Environmental Protection Act 1990 (EPA). Under the Act those who have caused or knowingly permit contamination are responsible for clean-up. However, if they cannot be traced or no longer exist, then the responsibility becomes that of the current owner or possibly the occupier of the land.

In this instance the landowner brought a case seeking a declaration that the contaminated land liability had transferred to Powys County Council. The Court of Appeal held that Brecknock Council could not have had any liabilities under the EPA as it only came into force in 2001 and the Act did not operate retrospectively. There was therefore no liability to transfer to Powys County Council.

Landowners cannot therefore assume that the local authorities retain responsibility for these sites, something to consider if you own or are thinking of buying land containing a landfill.

Powys County Council v Price & Anor, Court of Appeal – Civil Division, July 27, 2017, [2017] EWCA Civ 1133