Displacing Remedies from Environmental to Planning Law: The Enforcement of Contaminated Land Legislation in Britain

Abstract

Abstract This chapter examines issues relating to the enforcement of Part IIA, Environmental Protection Act 1990, which represents one of a number of regulatory regimes established in Europe and North America since the 1980s, aimed at protecting health and the environment from land pollution. Much of the extensive literature relating to the British regime contained in Part IIA has focused on the regime’s ‘strict and retroactive’ rules for apportioning liability among ‘appropriate persons’. Liability within this framework is clearly of considerable interest in theory, yet it is dependent in practice on effective administration by local environmental health authorities (the principal enforcing agents), who are responsible for inspecting land in their area, identifying land falling within Part IIA and issuing remediation documentation by which liability for remedying contaminated land is apportioned. As the regime enters its fifth year in force, it is timely to reflect on how these pivotal aspects of what is a public law approach to environmental remedies are being enforced in practice. The historical emphasis placed by the British Legislature on controlling pollution to air and water has bequeathed a substantial legacy of land contamination in need of attention today. Part IIA tackles this legacy through the obligations that are imposed on local authorities to identify and secure the remediation of the sites which present the most immediate and pressing risks to health and the environment. Reports emerging from the environmental consultancy sector suggest that this legacy is being addressed on a potentially major scale. What is in need of closer analysis, however, is the contribution to this clean-up effort that is being made by regulatory law and Part IIA in particular. Is land being remediated in spite of, rather than because of, the enactment of a specialist regime?