Interpreting the Contaminated Land Regime: Should the ‘Polluter’ Pay?

Abstract

The contaminated land regime is not as effective as it could be. It is suggested that part of the reason for this is that enforcing authorities cannot afford to clean up land at a faster rate. Yet they are reluctant to recover their costs from Class B persons. There is evidence that local authorities believe that ‘innocent’ homeowners ought not to face the cost of remediation. This is, at least in part, because of a focus on the ‘polluter pays' principle. There seems to be a belief that, as they are not polluters, homeowners should not have to pay. Unfortunately this conclusion does not follow, leading to a misinterpretation of the ‘hardship test’ in section 78P of the Environmental Protection Act 1990. Instead, there should be a more explicit recognition that there are other principles in the background framework to the regime. In particular, the principle of stewardship provides a justification for homeowners to pay to remediate their land. If this is recognised, it is hoped that both local authorities and the Environment Agency will be encouraged to recover at least some of their costs from Class B persons which should free up funds to survey more land to determine levels of contamination, and to allow a clean-up of truly orphan sites.