The framework for environmental liability is based on the principle that the "polluter pays".

However, landowners should be aware that under the contaminated land regime established by part IIA of the Environmental Protection Act 1990, a polluter is not just a person who causes pollution, but also someone who "knowingly permits" it.

The defendant in Circular Facilities (London) Ltd versus Sevenoaks District Council acquired a site for residential development where fly-tipping had taken place in the past.

Prior to work starting, clay pits on the site were filled with inert matter.

Years later, when the houses had been sold, the council investigated the site and discovered significant emissions of methane and carbon monoxide caused by decomposing organic matter in the land, which posed a significant health risk.

The council served notice on the defendant for the clean-up costs.

The council said Circular Facilities bore responsibility for the contamination as it had knowingly permitted the environmental harm to occur.

Before Circular Facilities' purchase of the site, the previous owner had commissioned a soil investigation report that revealed the presence of black organic matter and gases bubbling through groundwater. The report was placed on the planning register.

In upholding the council's claim, District Judge Kelly held that Circular Facilities must have been aware of the report and of the risks posed by former landfill sites.

The case was appealed, and a retrial has been ordered on the grounds that the district judge had not sufficiently explained his reasoning for determining that the defendant had knowledge of the contamination.

This case demonstrates the risks where information is available but not acted upon.

When selling land, it is important to disclose any information relating to potential or actual contamination in order to shift liability to the buyer.

Buyers, meanwhile, need to ensure that all information received is reviewed and acted upon.

* Rachel Williams is a commercial property and planning solicitor at Blackett Hart and Pratt, in Darlington. For more information, contact her on (01325) 466794.

Published: 15/11/2005