Determination of appropriate person: EPA 1990 s. 78F
Determines who must pay for contaminated land cleanup: the person who caused or knowingly permitted the pollution, or if none found, the current owner/occupier.
This section has effect for the purpose of determining who is the appropriate person to bear responsibility for any particular thing which the enforcing authority determines is to be done by way of remediation in any particular case. Subject to the following provisions of this section, any person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land is an appropriate person. A person shall only be an appropriate person by virtue of subsection (2) above in relation to things which are to be done by way of remediation which are to any extent referable to substances which he caused or knowingly permitted to be present in, on or under the contaminated land in question. If no person has, after reasonable inquiry, been found who is by virtue of subsection (2) above an appropriate person to bear responsibility for the things which are to be done by way of remediation, the owner or occupier for the time being of the contaminated land in question is an appropriate person. If, in consequence of subsection (3) above, there are things which are to be done by way of remediation in relation to which no person has, after reasonable inquiry, been found who is an appropriate person by virtue of subsection (2) above, the owner or occupier for the time being of the contaminated land in question is an appropriate person in relation to those things. But where the contaminated land is owned or occupied by the Crown by virtue of its having vested as bona vacantia in the Crown, or its having fallen to the Crown as ultimus haeres , the Crown is not an appropriate person under subsection (4) or (5) for the purposes of this Part. Where two or more persons would, apart from this subsection, be appropriate persons in relation to any particular thing which is to be done by way of remediation, the enforcing authority shall determine in accordance with guidance issued for the purpose by the Secretary of State whether any, and if so which, of them is to be treated as not being an appropriate person in relation to that thing. Where two or more persons are appropriate persons in relation to any particular thing which is to be done by way of remediation, they shall be liable to bear the cost of doing that thing in proportions determined by the enforcing authority in accordance with guidance issued for the purpose by the Secretary of State. Any guidance issued for the purposes of subsection (6) or (7) above shall be issued in accordance with section 78YA below. A person who has caused or knowingly permitted any substance (“substance A”) to be in, on or under any land shall also be taken for the purposes of this section to have caused or knowingly permitted there to be in, on or under that land any substance which is there as a result of a chemical reaction or biological process affecting substance A. A thing which is to be done by way of remediation may be regarded for the purposes of this Part as referable to the presence of any substance notwithstanding that the thing in question would not have to be done— in consequence only of the presence of that substance in any quantity; or in consequence only of the quantity of that substance which any particular person caused or knowingly permitted to be present.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
Section 78F of the Environmental Protection Act 1990 determines who is the "appropriate person" – the person who must bear the cost of cleaning up contaminated land. The enforcing authority (usually the local council or the Environment Agency) uses this section to decide who to hold responsible.
The primary rule is that anyone who "caused or knowingly permitted" the harmful substances to be in, on, or under the land is an appropriate person. This includes both the person who originally put the substances there and anyone who allowed them to remain. If the contamination results from a chemical reaction or biological process from a substance that someone caused or permitted, that person is also treated as having caused the resulting substance.
If no such person can be found after reasonable inquiry, then the current owner or occupier of the land becomes the appropriate person. However, if the land is owned by the Crown as bona vacantia or ultimus haeres, the Crown is not liable. When there are multiple appropriate persons, the enforcing authority must follow government guidance to decide whether to exclude any of them and how to apportion costs among them.
When it applies
- A chemical factory spills solvents on its land, and the factory owner is the appropriate person for remediation.
- A homeowner discovers that an old underground fuel tank left by a previous owner is leaking, but the previous owner cannot be traced, so the homeowner is liable.
- A farmer knowingly allows waste to be dumped on his field, and later the waste contaminates the soil; the farmer is the appropriate person.
- A company that merged with the polluter is found to have caused contamination through a chemical reaction of its waste.
- Two landowners both contributed to the same contamination, and the council decides their shares of the cleanup cost according to guidance.
What this section does not say
- This section does not define what 'contaminated land' means; that is in section 78A.
- It does not set out the procedure for appealing a remediation notice; that is covered by section 78L.
- It does not apply to radioactive substances; see section 78 for the exclusion.
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This page reproduces the text of EPA 1990 s. 78F in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.