Grant of rights of entry for remediation: EPA 1990 s. 78G
Landowners must grant rights of entry for remediation under a notice; they get compensation. Authority must consult before serving, except in imminent danger.
A remediation notice may require an appropriate person to do things by way of remediation, notwithstanding that he is not entitled to do those things. Any person whose consent is required before any thing required by a remediation notice may be done shall grant, or join in granting, such rights in relation to any of the relevant land or waters as will enable the appropriate person to comply with any requirements imposed by the remediation notice. Before serving a remediation notice, the enforcing authority shall reasonably endeavour to consult every person who appears to the authority— to be the owner or occupier of any of the relevant land or waters, and to be a person who might be required by subsection (2) above to grant, or join in granting, any rights, concerning the rights which that person may be so required to grant. Subsection (3) above shall not preclude the service of a remediation notice in any case where it appears to the enforcing authority that the contaminated land in question is in such a condition, by reason of substances in, on or under the land, that there is imminent danger of serious harm, or serious pollution of controlled waters, being caused. A person who grants, or joins in granting, any rights pursuant to subsection (2) above shall be entitled, on making an application within such period as may be prescribed and in such manner as may be prescribed to such person as may be prescribed, to be paid by the appropriate person compensation of such amount as may be determined in such manner as may be prescribed. Without prejudice to the generality of the regulations that may be made by virtue of subsection (5) above, regulations by virtue of that subsection may make such provision in relation to compensation under this section as may be made by regulations by virtue of subsection (4) of section 35A above in relation to compensation under that section. In this section, “ relevant land or waters ” means— the contaminated land in question; any controlled waters affected by that land; or any land adjoining or adjacent to that land or those waters.
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
This section deals with situations where a remediation notice requires someone (the “appropriate person”) to carry out remediation work on contaminated land, but they don’t have the legal right to enter or use the land or waters needed. It compels any person who would normally have to give consent (for example, the landowner or occupier) to grant the necessary rights of entry. In return, that person can claim compensation from the appropriate person.
Before serving a remediation notice, the enforcing authority (the Environment Agency or local authority) must try to consult with anyone who might be required to grant such rights. The only exception is when the contaminated land is in such a condition that there is an imminent danger of serious harm or serious pollution of controlled waters – in that emergency the notice can be served without prior consultation.
Compensation for granting rights is determined by regulations, and the person who granted the rights must apply within the prescribed period and in the prescribed manner. The section also allows regulations to make further provision about compensation, similar to rules under section 35A of the same Act.
When it applies
- A landowner refuses to allow contractors onto their property to dig up contaminated soil as required by a remediation notice served on the neighbouring responsible party.
- A tenant blocks access to a groundwater treatment system that must be installed on the rented land, even though the tenant does not own the land.
- The enforcing authority needs to serve a remediation notice requiring work on a site that can only be reached by crossing an adjacent field, and the field owner demands payment before allowing passage.
- A company is ordered to clean up a chemical spill on its own land but needs to enter a neighbour's land to set up monitoring equipment; the neighbour objects.
- The enforcing authority serves a remediation notice without any consultation because toxic fumes are spreading from the site and pose an immediate health risk.
What this section does not say
- This section does not cover who is responsible for paying for the remediation work itself (that is determined under sections 78F and 78P).
- It does not cover appeals against a remediation notice (appeals are dealt with under section 78L).
- It does not cover the right of the ‘appropriate person’ to refuse to carry out the remediation work (that person must comply or face penalties under section 78M).
- It does not cover compensation for damage or loss caused by the remediation work itself, only for the granting of rights of entry.
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This page reproduces the text of EPA 1990 s. 78G 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.