Remediation cost recovery & charges EPA 1990 s. 78P
Authorities recovering remediation costs must consider hardship and guidance. Charging notices bear interest and form land charges in 21 days.
Where, by virtue of section 78N(3)(a), (c), (e) or (f) above, the enforcing authority does any particular thing by way of remediation, it shall be entitled, subject to sections 78J(7) and 78K(6) above, to recover the reasonable cost incurred in doing it from the appropriate person or, if there are two or more appropriate persons in relation to the thing in question, from those persons in proportions determined pursuant to section 78F(7) above. In deciding whether to recover the cost, and, if so, how much of the cost, which it is entitled to recover under subsection (1) above, the enforcing authority shall have regard— to any hardship which the recovery may cause to the person from whom the cost is recoverable; and to any guidance issued by the Secretary of State for the purposes of this subsection. Subsection (4) below shall apply in any case where— any cost is recoverable under subsection (1) above from a person— who is the owner of any premises which consist of or include the contaminated land in question; and who caused or knowingly permitted the substances, or any of the substances, by reason of which the land is contaminated land to be in, on or under the land; and the enforcing authority serves a notice under this subsection (in this Part referred to as a “ charging notice ”) on that person. Where this subsection applies— the cost shall carry interest, at such reasonable rate as the enforcing authority may determine, from the date of service of the notice until the whole amount is paid; and subject to the following provisions of this section, the cost and accrued interest shall be a charge on the premises mentioned in subsection (3)(a)(i) above. A charging notice shall— specify the amount of the cost which the enforcing authority claims is recoverable; state the effect of subsection (4) above and the rate of interest determined by the authority under that subsection; and state the effect of subsections (7) and (8) below. On the date on which an enforcing authority serves a charging notice on a person, the authority shall also serve a copy of the notice on every other person who, to the knowledge of the authority, has an interest in the premises capable of being affected by the charge. Subject to any order under subsection (9)(b) or (c) below, the amount of any cost specified in a charging notice and the accrued interest shall be a charge on the premises— as from the end of the period of twenty-one days beginning with the service of the charging notice, or where an appeal is brought under subsection (8) below, as from the final determination or (as the case may be) the withdrawal, of the appeal, until the cost and interest are recovered. A person served with a charging notice or a copy of a charging notice may appeal against the notice to the county court within the period of twenty-one days beginning with the date of service. On an appeal under subsection (8) above, the court may— confirm the notice without modification; order that the notice is to have effect with the substitution of a different amount for the amount originally specified in it; or order that the notice is to be of no effect. Regulations may make provision with respect to— the grounds on which appeals under this section may be made; or the procedure on any such appeal. An enforcing authority shall, for the purpose of enforcing a charge under this section, have all the same powers and remedies under the Law of Property Act 1925, and otherwise, as if it were a mortgagee by deed having powers of sale and lease, of accepting surrenders of leases and of appointing a receiver. Where any cost is a charge on premises under this section, the enforcing authority may by order declare the cost to be payable with interest by instalments within the specified period until the whole amount is paid. In subsection (12) above— “ interest ” means interest at the rate determined by the enforcing authority under subsection (4) above; and “ the specified period ” means such period of thirty years or less from the date of service of the charging notice as is specified in the order. Subsections (3) to (13) above do not extend to Scotland.
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 78P gives an enforcing authority the right to recover reasonable costs incurred when carrying out remediation work under section 78N. Costs are recoverable from the appropriate person or divided among multiple appropriate persons in proportions determined under section 78F(7). In deciding whether and how much cost to recover, the authority must have regard to any hardship recovery may cause and to guidance issued by the Secretary of State.
Where recoverable costs are owed by a premises owner who caused or knowingly permitted the contaminating substances to be present, the authority may serve a charging notice. This notice specifies the cost claimed, sets interest, and creates a charge on the property. Copies must be served on anyone known to hold an affected interest in the premises.
The charge takes effect 21 days after service of the notice or, if appealed to the county court within those 21 days, upon final determination or withdrawal of the appeal. For enforcement, the authority holds the same powers as a mortgagee by deed under the Law of Property Act 1925. The authority may also order costs and interest to be paid in instalments over a period of 30 years or less. Subsections (3) to (13) do not apply to Scotland.
When it applies
- A council carries out clean-up work on contaminated land and seeks to recover its reasonable costs from the polluter.
- An enforcing authority serves a charging notice on a landowner who knowingly permitted industrial waste to contaminate their site.
- A landowner appeals a council's charging notice to the county court within 21 days of receiving it.
- An authority orders that recovered remediation expenses be paid in annual instalments over a period of 30 years or less.
What this section does not say
- Determining who is an appropriate person responsible for contamination (governed by epa1990s.78f).
- Issuing initial remediation notices to make landowners carry out work (governed by epa1990s.78e).
- Appeals against standard remediation notices rather than charging notices (governed by epa1990s.78l).
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This page reproduces the text of EPA 1990 s. 78P 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.