Increased Risk of Clean-Up Liability for Owners of Closed Council Landfill Sites in England and Wales
A recent Court of Appeal case, Powys County Council v Price and Hardwick, has addressed the issue of liability of successor public authorities under the UK contaminated land regime (Part 2A Environmental Protection Act 1990) (“Part 2A”).
The case related to a landfill site that had been operated by local authorities of the county of Powys until the early 1990s. It has subsequently been restored and returned to private landowners for agricultural use. Powys County Council (Powys) was created in 1994, and in 1996 it took over responsibility for a number of boroughs.
From 2001, Powys County Council carried out monitoring and treatment work at the site on the basis that it would be responsible under the Part 2A regime for any potential contamination caused by its predecessors. However, in 2015 Powys stopped all activity on the grounds that the 2007 case of R (National Gas Grid (formerly Transco plc)) v Environment Agency (“Transco”) meant it was not responsible for landfilling operations that has ceased prior to 1996. In Transco, the UK House of Lords held that National Grid Gas (formerly Transco) – the privatised gas utility company that was a statutory successor to the publicly owned British Gas – was not liable under Part 2A for the acts of its predecessors. The rationale for this decision was that the statutory scheme of transfer did not specifically include such contingent/future liabilities.
The Powys landfill site has not actually been designated as contaminated land under Part 2A, but the landowners brought this case because of concerns that it might be identified as such in the future.
The High Court ruled that Powys would be an ‘appropriate person’ under Part2A, but Powys appealed and the Court of Appeal disagreed.
The Court of Appeal held that Powys was not liable for the acts of its predecessor council(s). Following the reasoning of the Transco case, the Court could not find anything in the statutory scheme of transfer which was capable of transferring future liabilities (Part 2A did not come into force until 2001).
Local government in the UK has seen many structural changes over the last century, but many Councils have been operating under the assumption that they would be an ‘appropriate person’ in relation to the acts of predecessor authorities. However it now appears that this will not always be the case (it will depend upon the specific terms of the underlying enabling legislation in each case).
In cases like to Powys one, if the Council is not an ‘appropriate person’, remediation responsibility under Part 2A is likely to instead fall upon the current land owner. This could have significant ramifications for current owners of land which has historically been operated by a local authority (landfill sites being the most likely example).