Failure to Comply with Remediation Notice EPA 1990 s. 78M
Failing to obey a remediation notice is an offence under EPA 1990 s. 78M, punishable by fines up to £20,000 for commercial land or level 5 fines.
If a person on whom an enforcing authority serves a remediation notice fails, without reasonable excuse, to comply with any of the requirements of the notice, he shall be guilty of an offence. Where the remediation notice in question is one which was required by section 78E(3) above to state, in relation to the requirement which has not been complied with, the proportion of the cost involved which the person charged with the offence is liable to bear, it shall be a defence for that person to prove that the only reason why he has not complied with the requirement is that one or more of the other persons who are liable to bear a proportion of that cost refused, or was not able, to comply with the requirement. Except in a case falling within subsection (4) below, a person who commits an offence under subsection (1) above shall be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale and to a further fine of an amount equal to one-tenth of level 5 on the standard scale one-tenth of the greater of £5,000 or level 4 on the standard scale for each day on which the failure continues after conviction of the offence and before the enforcing authority has begun to exercise its powers by virtue of section 78N(3)(c) below. A person who commits an offence under subsection (1) above in a case where the contaminated land to which the remediation notice relates is industrial, trade or business premises shall be liable on summary conviction to a fine not exceeding £20,000 or such greater sum as the Secretary of State may from time to time by order substitute a fine and to a further fine of an amount equal to one-tenth of that sum for each day on which the failure continues after conviction of the offence and before the enforcing authority has begun to exercise its powers by virtue of section 78N(3)(c) below. If the enforcing authority is of the opinion that proceedings for an offence under this section would afford an ineffectual remedy against a person who has failed to comply with any of the requirements of a remediation notice which that authority has served on him, that authority may take proceedings in the High Court or, in Scotland, in any court of competent jurisdiction, for the purpose of securing compliance with the remediation notice. In this section, “ industrial, trade or business premises ” means premises used for any industrial, trade or business purposes or premises not so used on which matter is burnt in connection with any industrial, trade or business process, and premises are used for industrial purposes where they are used for the purposes of any treatment or process as well as where they are used for the purpose of manufacturing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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
Under EPA 1990 s. 78M, a person served with an enforcing authority's remediation notice commits an offence if they fail to comply with any of its requirements without reasonable excuse. Enforcing authorities may prosecute non-compliance or bring High Court proceedings if criminal prosecution would be an ineffectual remedy.
If a notice specifies shared liability for costs under section 78E(3), the person charged has a specific statutory defence. They are not guilty if they prove that their sole reason for non-compliance was that another person responsible for sharing the costs refused or was unable to pay their share.
For non-commercial land, conviction leads to a fine up to level 5 on the standard scale, with additional daily fines calculated at one-tenth of level 5 or one-tenth of the greater of £5,000 or level 4 for continuing failure. For industrial, trade, or business premises, the fine can be up to £20,000 plus daily fines equal to one-tenth of that sum.
When it applies
- A factory owner receives a council remediation notice for contaminated ground and fails to carry out the required decontamination works.
- A site owner fails to comply with a notice because another party assigned a proportion of costs under section 78E(3) refuses to contribute.
- A local council seeks a High Court order against a non-compliant landowner because criminal fines are an ineffectual remedy.
What this section does not say
- Appealing against the serving or requirements of a remediation notice, which is covered under section 78L.
- The initial identification and designation of land as contaminated, governed by section 78B.
- The powers of the enforcing authority to perform remediation works directly and recover costs, governed by section 78N and section 78P.
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This page reproduces the text of EPA 1990 s. 78M 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.