Liability for escaping contaminants: EPA 1990 s. 78K
You are liable for contaminants you caused or knowingly permitted to escape. Innocent owners of receiving land need not remediate unless they caused the escape.
A person who has caused or knowingly permitted any substances to be in, on or under any land shall also be taken for the purposes of this Part to have caused or, as the case may be, knowingly permitted those substances to be in, on or under any other land to which they appear to have escaped. Subsections (3) and (4) below apply in any case where it appears that any substances are or have been in, on or under any land (in this section referred to as “ land A ”) as a result of their escape, whether directly or indirectly, from other land in, on or under which a person caused or knowingly permitted them to be. Where this subsection applies, no remediation notice shall require a person— who is the owner or occupier of land A, and who has not caused or knowingly permitted the substances in question to be in, on or under that land, to do anything by way of remediation to any land or waters (other than land or waters of which he is the owner or occupier) in consequence of land A appearing to be in such a condition, by reason of the presence of those substances in, on or under it, that significant harm , or significant pollution of controlled waters, is being caused, or there is a significant possibility of such harm or pollution being caused . Where this subsection applies, no remediation notice shall require a person— who is the owner or occupier of land A, and who has not caused or knowingly permitted the substances in question to be in, on or under that land, to do anything by way of remediation in consequence of any further land in, on or under which those substances or any of them appear to be or to have been present as a result of their escape from land A (“land B”) appearing to be in such a condition, by reason of the presence of those substances in, on or under it, that significant harm , or significant pollution of controlled waters, is being caused, or there is a significant possibility of such harm or pollution being caused , unless he is also the owner or occupier of land B. In any case where— a person (“person A”) has caused or knowingly permitted any substances to be in, on, or under any land, another person (“person B”) who has not caused or knowingly permitted those substances to be in, on or under that land becomes the owner or occupier of that land, and the substances, or any of the substances, mentioned in paragraph (a) above appear to have escaped to other land, no remediation notice shall require person B to do anything by way of remediation to that other land in consequence of the apparent acts or omissions of person A, except to the extent that person B caused or knowingly permitted the escape. Nothing in subsection (3), (4) or (5) above prevents the enforcing authority from doing anything by way of remediation under section 78N below which it could have done apart from that subsection, but the authority shall not be entitled under section 78P below to recover from any person any part of the cost incurred by the authority in doing by way of remediation anything which it is precluded by subsection (3), (4) or (5) above from requiring that person to do. In this section, “ appear ” means appear to the enforcing authority, and cognate expressions shall be construed accordingly.
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 78K expands liability for contaminants that move from one piece of land to another. If you caused or knowingly permitted substances to be on your land, and they appear to have escaped to another land, you are taken to have caused or knowingly permitted them there as well.
However, the section protects innocent owners and occupiers of the land that receives the escape (land A). If you own or occupy land A and did not cause or knowingly permit the substances to be there, a remediation notice cannot require you to remediate land A or any further land (land B) to which the substances escape, unless you also own or occupy land B. This protection also extends to a person who buys land after the contaminant was put there but before it escapes: that subsequent owner cannot be required to remediate the other land unless they caused the escape themselves.
The enforcing authority may still carry out remediation itself, but cannot recover the cost from a person who is protected by these provisions.
When it applies
- A factory owner stores chemicals on site; they leak into a neighbour's soil. The factory owner is deemed liable for the contamination on the neighbour's land.
- A homeowner uses a pesticide that seeps through the ground into a neighbouring property. The homeowner is liable for the contamination on the neighbour's land.
- A landlord allowed a tenant to dump waste on the land, and the waste leaches into adjacent land. The landlord is liable for the escape.
- A person buys a house that had been contaminated by a former owner, and later the contamination spreads to a neighbour's land. The new owner is not required to remediate the neighbour's land unless they caused the escape.
- A local authority discovers contamination that has escaped from a landfill site onto nearby residential gardens. The landfill operator is liable, but the homeowners are not required to remediate their own gardens unless they caused the escape.
What this section does not say
- This provision does not govern liability for contamination that did not escape (i.e., remains on the original land); that is covered by s.78F.
- It does not apply to radioactive substances (s.78A excludes them).
- It does not set out procedures for remediation notices or appeals; those are in s.78L and s.78M.
- It does not determine who is the 'appropriate person' for remediation; that is s.78F.
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This page reproduces the text of EPA 1990 s. 78K 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.