Liability for contaminated land: Powys county council v price

11 Apr 2018

Powys County Council v Price, a follow-up to the decision of the House of Lords in R (National Grid Gas Plc) v Environment Agency (hereafter National Grid Gas), is concerned with the question of when statutory successors to public authorities will be liable as Class A persons (polluters) for having ‘caused or knowingly permitted’ the relevant substances to be in, on, or under the land, thanks to the contaminated land provisions contained in the Environmental Protection Act 1990, Part IIA. In deciding that such a body will not be liable unless the legislation establishing the succession on its wording specifically makes such liabilities pass – an outcome which is highly unlikely – the Court emphasises that corporate identity is critical to liability under the provisions but also goes beyond the earlier decision in National Grid Gas. The result is that the burden of remediating land contaminated by a public authority whose identity has changed, and where the acts were committed before the relevant provisions came into force, will almost certainly fall on the owner or occupier of the land for the time being. This note discusses the facts and reasoning in this case, before considering the questions raised by the decision: the issue of succession and the definition of polluter; the question of contingent liabilities; and the consequences of finding that the only ‘appropriate person’ is the owner or occupier of the contaminated land.