The Polluter Pays ?

This article by Anton Howse draws attention to new legislation and the need for increased vigilance in relation to contaminated land.

A new law on the responsibility for cleaning up contaminated land has been introduced. It is based on the principle that the polluter pays so that ‘remediation’ will primarily be the duty of the actual polluter or the person who knowingly permits it to remain there. However, others such as the occupier of the land could become liable if the culprit cannot be found.

Local authorities are required to inspect land in their area and identify contaminated land. Land is contaminated if there are substances in, on or under it, so that it is in such a condition that significant harm is being caused or there is a significant possibility of causing such harm. Local authorities have powers to go onto land and take samples in order to perform their duties.

If a local authority identifies any contaminated land, it must give notice to the owner, any occupier and any person who caused or knowingly permitted the contamination. There is a requirement for consultation, and then the authority can serve a remediation notice specifying the remedial action. This will be served on the person who caused or knowingly permitted the contamination or, if that person cannot be found, on the owner of the land or its occupier.

Golf Clubs that are involved in the sale or purchase of a company, business assets or land must establish whether any of the land sold or included is likely to be contaminated and, if so, the risks involved. Buyers may well need to extend their due diligence of the land in the light of these new risks. Both parties could also get involved in contractual negotiations over warranties about the state of any land in question and allocating responsibilities if a clean-up is required.

Most golf courses occupy very large acreage and are consequently prone to unlawful fly tipping, some of which may be harmful to the environment. Regular inspections of these vulnerable areas are recommended to establish whether fly tipping does occur and action taken to prevent such occurrence to avoid any contamination

For further information, contact Anton Howse, Ellis Jones, Solicitors, Sandbourne House, 302 Charminster Road, Bournemouth, Dorset BH8 9RU. Tel. 01202 525333. Fax. 01202 535935. E-mail : email@ellisjones.co.uk