Contaminated Land Cases

On 21 November 2024, Laing J granted permission for a judicial review of Havering Council’s decision not to designate an illegal landfill site at Launders Lane in Rainham as contaminated land in proceedings brought by Ruth Kettle-Frisby, a Havering resident and co-founder of Clear the Air in Havering. The illegal landfill site is said to be affecting air quality and residents’ lives with constantly smoking underground fires. Residents also say that local GPs attribute high levels of respiratory and lung diseases in the area to the site, and there are also concerns about surface water runoff from it. Smoke from the [...]

There has been long running litigation in Scotland as regards “the Watling Street development” in Motherwell, where housing was built on land used as an iron and steel works from 1912-1939 and then during and after World War II by the Ministry of Supply to deal with clothing and surplus equipment from demobbed soldiers.  This involved use of solvents, as did later use up to the 1980s by a light engineering company.  Outline planning permission for the site was granted to the Scottish Development Agency in the 1980s.  It was suspected that the former uses of the site meant that [...]

In another claim involving the Watling Street development at Motherwell, dating back to 2013, 36 individuals brought actions against Lanarkshire Housing Association Ltd alleging personal injury due to contaminants in the soil of the development: Simon Pelosi v. Lanarkshire Housing Association Limited [2024] CSOH 56. The claim was based on the statutory requirement in section 113 of the Housing (Scotland) Act 1987 and section 27 of the Housing (Scotland) Act 2001 that houses will be kept in all respects reasonably fit for human habitation.  There was evidence that the claimants experienced a “strong, unpleasant, sweet and gassy or oil” smell and had [...]

On December 9 2024, the US Environmental protection Agency announced a ban on the solvents trichloroethylene (TCE) and perchloroethylene (PCE) for consumer use. TCE and PCE have been widely used as solvents in industrial applications, cleaners, lubricants and glues.  Notoriously these substances were involved in the seminal case in civil liability of Cambridge Water Company Limited v. Eastern Counties Leather following their use at a tannery in degreasing skins. Both substances have potential to cause various forms of cancer. PCE is somewhat less hazardous and its limited use will be permitted in, for example aviation and defence, subject to rules to [...]

In Northern Gas Networks Ltd v. Revenue and Customs Commissioners [2022] EWCA Civ 910, the Court of Appeal considered the application of the provisions of Schedule 22 of the Finance Act 2001 to compulsory replacement of iron gas pipes which had corroded and become a safety risk.  The Court held that the focus should be on the words of the Finance Act itself, not on the general principle of “the polluter pays”.  The key words were the condition that the land must not have been in a contaminated state wholly or partly as a result of anything done or omitted [...]

A future concern is likely to be PFAS, short for per- and polyfluoroalkyl substances, which are group of around 10,000 chemicals used in a very wide range of consumer products for decades. The chemicals are persistent in the environment, leading to their being called “forever chemicals” and in some cases have been linked to a range of diseases, including cancer.  In 2023 the US Environmental Protection Agency announced stringent drinking water standards for a number of these chemicals, a development which has attracted attention in the UK where contamination by these substances is thought to be widespread.  Sources of PFAS [...]

The principle in Marcic v. Thames Water Utilities Limited [2003] UKHL 66 has been held to apply also to cases where sewage is discharged into a watercourse as well as onto land: see Manchester Ship Canal Co Ltd v United Utilities Water Ltd [2022] EWCA Civ 852. Contaminated Land para. reference: 14-29, 14-30

For a case concerning assessment of damages for breach of environmental warranties, see MDW Holdings Ltd v. Norvill [2022] EWCA Civ 883, considering the effect of a loss of goodwill value in a case where it was found that the company had not been complying with the law.  The case had the added ingredient of deceit.  Contaminated Land para. reference:   19-18  

In Brian Leighton (Garages) Limited v. Allianz Insurance plc [2023] EWCA Civ 8, the Court of Appeal considered policy wording in relation to contamination of a garage forecourt area caused by the puncturing  of a pipeline.  The judgements include detailed consideration of the concepts of causation and proximate cause in that context and the principles underlying construction of such policies. Contaminated Land para. reference: 20-16

For a case considering the interpretation of a local plan policy on reuse of previously developed land and contamination, see R (Tesco Stores Limited) v. Allerdale Borough Council [2022] EWHC 2827.  It was held that the policy applied to reuse of previously developed (brownfield) sites and not to effective reuse of all vacant sites.  The officer’s report stating that the policy applied in view of the site’s immediate setting was held not to be a misdirection. Contaminated Land para. reference:  21-05