Combined sites, adjacent land, liability – EPA 1990 s.78X
Combined contaminated sites treated individually; authority can act on adjacent land; insolvency practitioners not personally liable unless unreasonable.
Where it appears to a local authority that two or more different sites, when considered together, are in such a condition, by reason of substances in, on or under the land, that— significant harm is being caused or there is a significant possibility of such harm being caused, or significant pollution of controlled waters is being caused or there is a significant possibility of such pollution being caused, this Part shall apply in relation to each of those sites, whether or not the condition of the land at any of them, when considered alone, appears to the authority to be such 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 it appears to a local authority that any land outside, but adjoining or adjacent to, its area is in such a condition, by reason of substances in, on or under the land, 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 within its area— the authority may, in exercising its functions under this Part, treat that land as if it were land situated within its area; and except in this subsection, any reference— to land within the area of a local authority, or to the local authority in whose area any land is situated, shall be construed accordingly; but this subsection is without prejudice to the functions of the local authority in whose area the land is in fact situated. A person acting in a relevant capacity— shall not thereby be personally liable, under this Part, to bear the whole or any part of the cost of doing any thing by way of remediation, unless that thing is to any extent referable to substances whose presence in, on or under the contaminated land in question is a result of any act done or omission made by him which it was unreasonable for a person acting in that capacity to do or make; and shall not thereby be guilty of an offence under or by virtue of section 78M above unless the requirement which has not been complied with is a requirement to do some particular thing for which he is personally liable to bear the whole or any part of the cost. In subsection (3) above, “ person acting in a relevant capacity ” means— a person acting as an insolvency practitioner, within the meaning of section 388 of the Insolvency Act 1986 (including that section as it applies in relation to an insolvent partnership by virtue of any order made under section 421 of that Act); the official receiver acting in a capacity in which he would be regarded as acting as an insolvency practitioner within the meaning of section 388 of the Insolvency Act 1986 if subsection (5) of that section were disregarded; the official receiver acting as receiver or manager; a person acting as a special manager under section 177 or 370 of the Insolvency Act 1986; the Accountant in Bankruptcy acting as trustee or interim trustee in a sequestration (within the meaning of the Bankruptcy (Scotland) Act 2016 ); a person acting as a receiver or receiver and manager— under or by virtue of any enactment; or by virtue of his appointment as such by an order of a court or by any other instrument. Regulations may make different provision for different cases or circumstances.
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
If two or more pieces of land together cause significant harm or water pollution, even if each alone would not, the law treats each site as contaminated land. This allows the local authority to require remediation of each site individually.
A local authority can treat land just outside its boundary as if it were inside its area, if that land is causing significant harm or water pollution within its area. The other authority still keeps its own powers.
People acting as insolvency practitioners, official receivers, court-appointed receivers, or similar roles are not personally liable for remediation costs unless the contamination results from their own unreasonable act or omission. They also cannot be convicted under section 78M unless they are personally liable for the cost. Regulations may make different rules for different cases.
When it applies
- Two neighbouring industrial sites each have low-level chemical spills that together contaminate the underlying groundwater.
- A farm just outside a local authority's boundary leaches nitrates into a river flowing into the authority's area.
- An insolvency practitioner managing a bankrupt company's assets receives a remediation notice for contaminated land on the site.
- A court-appointed receiver continues operations on a factory site where soil is contaminated from past activities.
- A local authority investigates a cluster of old landfills that together cause methane emissions exceeding safe levels.
What this section does not say
- Appeals against a remediation notice (dealt with under section 78L).
- Offences for failing to comply with a remediation notice (dealt with under section 78M).
- Recovery of remediation costs from the appropriate person (dealt with under section 78P).
- Determination of who is the appropriate person to bear remediation costs (covered by section 78K and guidance).
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This page reproduces the text of EPA 1990 s. 78X 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.