Stephen Tromans QC and Rose Grogan win Court of Appeal case on liability to remediate contaminated land

Stephen Tromans QC and Rose Grogan acted for the appellant, Powys County Council, in a successful appeal about the liabilities of local authorities for the acts of their predecessors under the contaminated land regime in Part 2A of the Environmental Protection Act 1990.

In Powys County Council v. Price and Hardwicke [2017] EWCA Civ 1133, Powys appealed against a decision of HHJ Jarman QC that it was liable for the acts of its predecessor authority for contaminated land arising out of a disused landfill site. The predecessor councils to Powys had operated a landfill site from the early 1960s until 1993 on farm land owned by the Respondents under a series of leases. The Respondents had sought a declaration from the High Court that the "liabilities" transferred to Powys included liability for acts of its predecessor so that Powys was a Class A appropriate person, should the site ever be identified as contaminated land.

The issue was whether "liabilities" included a liability which arose for the first time only by subsequent legislation. The High Court (HHJ Jarman QC [2016] EWHC 2596) found that under the Local Government (Wales) (Property, etc) Reorganisation Order 1996 (Article 4), liabilities arising out of the Environmental Protection Act (which was not yet in force at the time of transfer) vested in the successor authority. The Court of Appeal reversed the decision, relying on the decision in : R (National Grid Gas) v. Environment Agency [2007] 1 WLR 318.

Cases on contaminated land are rare. This case is of interest to local authorities, particularly given the fact that local authorities operated landfill sites until the Environmental Protection Act 1990 required this to be done by arm's length companies.