Civil Liability and Statutory Causes of Action

An interesting example of a recent civil claim for contaminated land is provided by the decisions of the Outer and Inner House of the Court of Session in McManus v. City Link Development Co Ltd.  The pursuers/claimants were residents of a street in Motherwell. Their allegation was that, as the result of uses made of the site before it was developed for housing, it was contaminated with chemicals harmful to health, which remained present on the site during and after development. Remediation works took place in 1993/4 during which material was redistributed around the site. The first defenders were the developers, the second defenders were the alleged environmental consultants on the development project and the third defenders were the social housing landlords. The pursuers alleged that, during their time as tenants, they inhaled vapours given off by these harmful chemicals, they became ill, and they had suffered loss.

At first instance in the Outer House [2015] CSOH 178, the claim against the developer failed on the basis that no duty of care had been breached.  The developers had no specialist knowledge of contamination and had discharged their duty by relying on the reports of the environmental consultants.  On authority there was not found to be a non-delegable duty of care; the exception to the general rule for hazardous operations was found not to apply to the development of housing.  The case against the consultants was allowed to proceed on the basis that it was not arguable that it would not be fair, just and reasonable to impose a duty of care owed to the pursuers.  The case against the landlord was dismissed.  Insofar as it relied on the provisions of the Housing (Scotland) Acts 1987 and 2001 it was based on a misconstruction of the term implied by the Act as to reasonable fitness for human habitation, and any common law duty related only to the repair of the fabric of the property.  A contention that the developer and consultant were in breach of s. 33 of the Environmental Protection Act 1990 was rejected, on the basis that s. 33 did not apply to a continuing state of affairs whereby controlled waste was left in situ.  There was also an issue as to time limitation.

On appeal [2017] CSIH 12; 2017 Hous LR 84, there was no appeal against the findings regarding the duty of care of the developer, the focus being on the statutory provisions.   On s. 33 the argument was that the consultants had designed the proposals for remediation and knew that the measures would result in waste remaining which was redistributed over the site.  The pursuers argued that s. 33 should be given a broad interpretation and that the consultants should be responsible for having allowed the contaminated waste materials to remain in place, and that their movement even over a short distance, amounted to a deposit under s. 33 which the consultants had knowingly permitted.    The court however noted that the position was confused factually and there were no clear averments as to which companies had moved material and there were no averments to establish that the consultants had exercised such a degree of control as to bring them within s. 33. Averments as to the consultants' powers and the relationship between them and the developer were described as "entirely vague and unclear" (para. 26).  Averments simply as to knowledge of site conditions and the provision of advice were insufficient.  Accordingly the statutory claim against the consultants under s, 33 was dismissed, leaving the claim based on a common law duty of care to go forward.

On the Housing (Scotland) Acts claim against the landlord, the issue was fitness of the house for human habitation, in the light of the presence of VOCs present in the ground beneath it which could enter the house.  The first instance judge had limited that obligation to the repair of the fabric of the let property itself. Counsel for the landlord accepted before the Inner House in oral submissions that this was too narrow in scope in being limited to the "fabric", which the Inner House considered to have been an appropriate concession (para. 48).  The pleadings however did not meet the point that the relevant provisions of the Housing Acts related to the fitness for human habitation at the commencement of the tenancy. The court accepted that fumes and vapours permeating a house could in appropriate circumstances be a breach of the fitness of habitation provision, but it was not sufficient to allege that problems occurred or might occur after the commencement of the tenancy: under the words of the legislation it had to be proven that at the date of commencement of the tenancy the condition of the house was such that it was uninhabitable by reference to the statutory test.  Thus fumes might have that effect, but the pleading had to relate to the time of commencement of the tenancy.

The case therefore does illustrate the formidable obstacles involved in establishing liability in respect of injury to the residents of houses built on contaminated land, particularly where the development took place many years ago.

Text references: paras. 15-05, 16-23, 18-50