Contaminated Land - Saving Sid
Helen Mahy, Group Secretary & General Counsel, National Grid plc, UK
The 'gas industry' has been in existence now for almost 200 years. In common with many of the major industries of today, it started with the establishment of a small number of privately owned undertakings in the early 1800s which grew exponentially during the years of the industrial revolution. The focus of industry during this period was of course ambitious industrialisation and expansion, with little or no contemplation of the future environmental ramifications. Part 2A of the Environmental Protection Act 1990 (EPA) was introduced by the Conservative Government in 1995 partly to deal with the contaminated land legacy that has been bequeathed to us from industry operating during these years and implemented an improved system for the inspection, identification and remediation of contaminated land. The legislation focuses on the 'appropriate person' to clean up contaminated land and defines this as the person who 'caused or knowingly permitted' contaminating substances to be in on or under the land. The recent House of Lords' decision in R (on the application of National Grid Gas plc) v. Environment Agency1 is the first time that the courts have considered where liability will lie when pollution has been caused decades ago by private undertakings which were subsequently nationalised and then privatised. In their decision, the Lords have clarified the scope of the phrase 'appropriate person' in this context and explored the boundaries of the polluter pays principle. The Lords recognised that whilst there may well be policy arguments for and against liability in this situation falling on the privatised successor company, the role of the courts is to interpret the relevant statutory provisions enacted by Parliament. In this case the Lords decided that those provisions were abundantly clear.
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