Abstract
The “contaminated land regime” is the main regulatory tool from the 1990s that has been given to enforcing authorities in the UK in order to deal with phenomenon of historical pollution. Recent figures, though, demonstrate that the majority of the contaminated sites are remediated through voluntary clean-up and via the planning system. In addition, historical pollution can be also tackled through private law remedies (such as negligence and private or public nuisance) triggered by individuals claiming damages for the injuries suffered as a consequence of the contamination . In this context, criminal law plays a very limited role. Only failing to comply with a remediation notice issued by the relevant authority under the contaminated land regime constitutes a criminal offence. However, there are no legal obstacles that prevent, at least in theory, the possibility of also applying the environmental criminal law framework to cases of historical pollution.
This chapter is a co-authored publication. Prof. Mitsilegas is primarily responsible for Sects. 2–4 and Dr. Fasoli for Sects. 5 and 6.
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Notes
- 1.
- 2.
http://www.legislation.gov.uk/ukpga/1990/43/contents. A full set of documents providing technical guidance on the management of contaminated land, including how to investigate, assess, and manage the risks, is available at https://www.gov.uk/government/collections/land-contamination-technical-guidance.
- 3.
Interview with Mr. Andrew Wiseman on 6 May 2015, Solicitor and Convenor of the UKELA Working Party on Land Contamination (http://www.ukela.org/rte.asp?id=64). The views expressed constitute the personal view of the interviewee and do not necessarily reflect the position of the UKELA Working Party. Interview with Mr. Nick Marks on 5 June 2015, Regulator and Contaminated Land Officer commenting on behalf of Environmental Protection UK (EPUK, http://www.environmental-protection.org.uk/). The views expressed constitute the personal view of the interviewee and do not necessarily reflect the position of EPUK. Comments have also kindly been provided by Mr. Gordon Wignall, Barrister at Six Pump Court Chambers, expert in planning and environmental law, and by Ms. Rachel Mulheron, Professor of Law at Queen Mary University of London. The authors are also grateful to Ms. Anne Brosnan, Chief Prosecutor at Environment Agency, for the cases provided on corporate environmental crime. The authors remain solely responsible for any error or omissions contained in this chapter.
- 4.
- 5.
- 6.
All industry profiles are available at https://www.gov.uk/government/publications/department-of-environment-industry-profiles.
- 7.
- 8.
See also Planning Practice Guidance on Contaminated Land at http://planningguidance.planningportal.gov.uk/blog/guidance/land-affected-by-contamination/land-affected-by-contamination-guidance/.
- 9.
- 10.
CLARINET, Sustainable Management of Contaminated Land: An Overview (2002), p. 1. On CLARINET, see also below.
- 11.
- 12.
Ibid., p. 12.
- 13.
- 14.
The Environment Agency is an independent corporate body (Environment Act 1995, s. 1(1)) whose main aim is to minimize harm to the environment. It has a range of enforcement and other powers available. It is responsible, inter alia, for waste management, water pollution, the integrated pollution prevention and control regime, and radioactive substances.
- 15.
- 16.
- 17.
See the National Implementation Plan for the Stockholm Convention on Persistent Organic Pollutants (2012) at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/82680/consult-nip-pop-doc-20121121.pdf.
- 18.
The Regulation also contains provisions regarding the production, placement on the market, and use of chemicals, management of stockpiles and wastes, and measures to reduce unintentional releases of POPs. Furthermore, Member States must set up emission inventories for unintentionally produced POPs, national implementation plans (NIPs), and monitoring and information exchange mechanisms. For further details, see http://ec.europa.eu/environment/pops/.
- 19.
- 20.
- 21.
- 22.
- 23.
- 24.
For the history of the contaminated land liability regime in the UK, see in particularly Zhao (2013, pp. 117–150). See also https://www.gov.uk/contaminated-land/overview.
- 25.
- 26.
- 27.
Department of the Environment, “Paying for Our Past” (London, Department of the Environment, 1994).
- 28.
Department of the Environment, “Framework for Contaminated Land: Outcome of the Government’s Policies Review and Conclusions from the Consultation Paper Paying for Our Past” (London, Department of the Environment, 1994).
- 29.
See, for example, the Contaminated Land Strategy of London Borough of Hounslow (2008) at http://www.hounslow.gov.uk/contaminated_land_strategy.pdf.
- 30.
See, for example, http://www.lawsociety.org.uk/support-services/advice/practice-notes/contaminated-land/; http://www.bbc.co.uk/news/uk-england-bristol-10746865; http://www.bathchronicle.co.uk/Council-bid-government-cash-clean-contaminated/story-12982057-detail/story.html; http://www.dailypost.co.uk/news/north-wales-news/wrexham-residents-wont-pay-contaminated-8888726; http://www.bbc.co.uk/news/uk-scotland-tayside-central-26249311.
- 31.
- 32.
The funding programme for contaminated land closed on 1 April 2014. For a three-year period, a small amount of money will be still available to local authorities for ongoing remediation projects and “absolute emergency cases.” Funding will then cease completely from 1 April 2017. See http://www.environmental-protection.org.uk/committees/land-quality/policy/defra-contaminated-land-capital-grants-to-be-axed/.
- 33.
- 34.
See, for example, http://www.cli.co.uk/pages/contaminated-land.aspx.
- 35.
Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143, 30.4.2004, p. 56.
- 36.
European Commission, DG Environment, Annex—Part A: Legal Analysis of the National Transposing Legislation, Implementation Challenges and Obstacles of the Environmental Liability Directive (2013, p. 360).
- 37.
- 38.
Environment Agency, Reporting the Evidence: Dealing with Contaminated Land, p. 3.
- 39.
E.g., the Contaminated Land Inspection Strategy in the London borough of Hillingdon (2013–2018), p. 22. http://www.hillingdon.gov.uk/media.jsp?mediaid=29431&filetype=pdf).
- 40.
Department of Communities and Local Government, 2011, https://www.gov.uk/government/news/department-for-communities-and-local-government-publishes-2010-to-2011-annual-report-and-accounts. See in particular Catney 2006, p. 333.
- 41.
Land Quality Management Ltd, SP1004 International Processes for Identification and Remediation of Contaminated Land, Report no. 1023-0 (2013) 13-1, available online via the RANDD/DEFRA website, http://randd.defra.gov.uk.
- 42.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/297014/geho0512bupg-e-e.pdf. See also Planning policy Statement 23—Annex 2—Planning and Pollution Control: Development of Land Affected by Contamination, although replaced in 2012 by the National Planning Policy Framework.
- 43.
Updated figures prepared by DEFRA as to the contaminated land sector activity in England and Wales are available at http://randd.defra.gov.uk/Default.aspx?Menu=Menu&Module=More&Location=None&Completed=0&ProjectID=136.
- 44.
“Private nuisance” deals with protecting the occupier of a land in respect of unreasonable interference with the enjoyment or use of his or her land. Public nuisance is a crime that at the same time is actionable in tort law if the claimant suffers “particular damage” on top of the damage suffered by the public in general. See also (Bishop and Jenkins 2011, p. 285; Lee 2011, p. 986; Hamer 2009, p. 8).
- 45.
- 46.
- 47.
- 48.
- 49.
- 50.
- 51.
Setting Environmental Standards, 21st Report (1998), esp. Chap. 7: Articulating Values. Available at http://webarchive.nationalarchives.gov.uk/20110322143804/http:/www.rcep.org.uk/reports/index.htm.
- 52.
A Consultation Paper from the Department of the Environment and the Welsh Office, March 1994.
- 53.
- 54.
DEFRA, Public Consultation on Changes to the Contaminated Land Regime under Part 2A of the Environmental Protection Act 1990 (2010).
- 55.
By way of example, the Contaminated Land Strategy of London Borough of Hounslow reports that “[t]he Council receives a growing number of such requests each year, and has developed a standardised report, which forms the basis of the response in most cases. A report will include comments relating to the current priority group allocated to a given site under the Part 2A inspection process. The report will also confirm any formal decisions made, or action taken by the Council in accordance with Part 2A if appropriate” (Contaminated Land Strategy of London Borough of Hounslow (2008) at http://www.hounslow.gov.uk/contaminated_land_strategy.pdf).
- 56.
The policy is available online at http://www.environment-agency.gov.uk/static/documents/Business/1430_10_External.pdf).
- 57.
- 58.
- 59.
Directive 2008/99/EC on the protection of the environment through criminal law [2008] OJ L328, 6.12.2008, p. 28.
- 60.
The offence is prosecuted on summary conviction with a fine not exceeding £20,000 or on conviction on indictment, to a fine to be established and/or imprisonment for a term not exceeding two years. It constitutes a defence for the responsible person the fact that they had no reasonable grounds for suspecting that the water would be used for human consumption; or they took all reasonable steps and exercised all due diligence to secure that the water was fit for human consumption on leaving the primary water undertaker’s pipes or was not used for human consumption.
- 61.
Acting under statutory authority amounts to a defence. In addition, where the entry of discharge was made in an emergency in order to avoid danger to human health this constitutes a defence as well and the polluter has to take reasonable steps to minimize the pollution as soon as possible.
- 62.
The maximum penalty for these offences is, on conviction in the Magistrates’ Court, 12 months’ imprisonment and/or a fine of £50,000 or, on conviction in the Crown Court, five years’ imprisonment and/or an unlimited fine. It constitutes a defence the carrying out of the relevant activities in an emergency in order to avoid danger to the public (but danger to the environment is not mentioned). In addition, there is a defence if the operator took all reasonable precautions and exercised all due diligence to avoid the commission of the offences.
- 63.
The offence is prosecuted on summary conviction to a fine not exceeding level 3 on the standard scale if the chimney is of a private dwelling or to a fine not exceeding level 5 on the standard scale in any other case. It constitutes a defence, for example, proving that the alleged emission was solely due to the lighting up of a furnace which was cold and that all practicable steps had been taken to prevent or minimize the emission of dark smoke; that the alleged emission was solely due to some failure of a furnace and that the failure could not reasonably have been foreseen, or, if foreseen, could not reasonably have been provided against; and the alleged emission could not reasonably have been prevented by action taken after the failure occurred.
- 64.
- 65.
Regulatory Enforcement and Sanctions Act 2008 (Part 3). On civil sanctions, see Macrory and Woods 2003.
- 66.
For a detailed description of corporate liability in England and Wales, see Wells 2001, pp. 84 ff.
- 67.
See also (De Pret 2000, pp. 65–77).
- 68.
Emphasis in the original. House of Commons Environmental Audit Committee, Environmental Crimes and the Courts, Sixth Report of Session 2003–04, p. 16.
- 69.
- 70.
See also the case R v Day (2014) EWCA Crim 2683, para. 46.
- 71.
See also the decisions in January 2016 of Leeds Crown Court to fine Yorkshire Water £600,000 for unauthorized sewage pollution (available at https://www.gov.uk/government/news/yorkshire-water-fined-600000-after-sewage-pollution-hits-wakefield-fishery), and of St Albans Crown Court to fine Thames Water £1 million for repeated discharges of polluting matter from Tring STW (Sewage Treatment Works) into the Wendover Arm of the Grand Union Canal in Hertfordshire (available at https://www.gov.uk/government/news/thames-water-fined-1-million-for-pollution-to-grand-union-canal).
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Mitsilegas, V., Fasoli, E. (2017). Historical Pollution in the UK (England and Wales): The Residual Role Played by Criminal Law. In: Centonze, F., Manacorda, S. (eds) Historical Pollution. Springer, Cham. https://doi.org/10.1007/978-3-319-56937-6_9
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