Contaminated Land Appeal - Important lessons that can be learnt from decision in the Willenhall case
10 July 2017
Since the contaminated land regime came into force 17 years ago, only two determinations have been made by the Secretary of State for Environment, Food and Rural Affairs. The most recent of these was concerning the Willenhall gasworks contaminated land remediation notice appeal.
The appeal site is a residential development in Willenhall that was previously occupied by Willenhall Gas Company and later the West Midlands Gas Board. It was during its time as a gasworks that the land became contaminated with polyaromatic hydrocarbons (PAHs), in particular a carcinogen known as benzo-a-pyrene.
Between 1965 and 1972 the site was owned by Walsall District Council’s forbear, the Urban District Council of Willenhall, who had purchased it under Part V of the Housing Act 1957. During its ownership of the land the council granted itself outline planning permission.
The site was purchased by Jim 2 Ltd (at the time Maclean Homes), who then went on to sell part of the land to E.Fletcher. Both developers were granted detailed planning permission for residential developments and the houses were built in the early 1970’s.
In 2008 investigations began which resulted in the council determining the site as contaminated land for the purposes of s78A(2) of the Environmental Protection Act 1990 and highlighted Jim 2 and E Fletcher as potential Class A persons under Part 2A of the Act. However, in 2014 E Fletcher was dissolved and could not be ‘found’ for the purposes of the Act. On the basis that Jim 2 had either caused or knowingly permitted contamination present on the site, a remediation notice was served by the local authority in March 2015.
Jim 2 appealed. The notice was quashed by the State Secretary on the recommendation of the inspector after a public enquiry. Almost 90 homes are affected by the contamination and it has previously been claimed that the clear-up could cost around £2.5 million.
Several lessons can be learnt from the outcome of this case;
Local Authorities - It is paramount that they carry out thorough investigations that align with the statutory guidance which determines whether land is contaminated or not. In the Willenhall case, tests had not been satisfied by the consultants and conclusions that were drawn needed to backed up with evidence.
Developers - They need to be aware there are risks involved during land redevelopment. This is because knowing that a contaminant is present, but not acting to address it whilst the redevelopment takes places can cause the developer to become part of the liability group.
Previous Owners - Finally, though in this particular instance the outcome was favourable to the original polluters, this may not always necessarily be the case. The Willenhall case has highlighted the need for current land owners to be knowledgeable about the risks involved with contaminated land and the importance of these being suitably addressed in corresponding divestment plans.
VHE Construction are one of the UK’s leading land remediation contractors with over 30 years of experience in the sector including maintaining a record as the UK`s most prolific gasworks remediation contractor. During this time we have established ourselves as an industry pioneer working under Part 2A work of the Environmental Protection Act 1990 has involved working within the curtilage of occupied residential properties to remove contaminated materials including, in some cases, the partial removal and re construction of property extensions and out buildings prior to full reinstatement of existing gardens by professional hard and soft landscaping teams including the occasional pond and garden gnome replacement! You can view our previous work here.
To find out more about the services we provide or to work with us, please get in contact today on 01226 320150.