Between 8-18 December 2015 Stephen Tromans QC and Victoria Hutton appeared on behalf of the Appellant, Jim 2 Ltd, in an Inquiry into their appeal against a Remediation Notice. The appeal has been called in by the Secretary of State and is only the second of its kind

The appeal site is a residential development comprising 69 houses in Willenhall, Walsall. The site was formerly a gasworks operated initially by the Willenhall Gas Company and later by the West Midlands Gas Board. It was during the time of its operation that the site came to be contaminated with polyaromatic hydrocarbons (PAHs). The PAH in issue at the appeal was benzo-a- pyrene which is often used as a marker for PAHs and is a carcinogen.

The site had been purchased by Wallsall District Council’s forbear (the Urban District Council of Willenhall) under Part V of the Housing Act 1957 for the purposes of redeveloping the site for housing and was owned by them between 1965 and 1972. The Council granted itself outline planning permission for residential development.

Jim 2 (at that point named MacLean Homes) bought the site from the Council and were themselves granted detailed planning permission for residential development. They then sold part of the site to another housebuilder,E Fletcher, who were also granted detailed planning permission for their part of the site. The houses were built out in the early 1970s. Although it was not entirely clear who built the houses, the Inquiry proceeded on the basis that they were built by both Jim 2 and E Fletcher.

After investigations which began in around 2008, the Council determined the site as contaminated land for the purposes of s78A(2) of the Environmental Protection Act 1990 and identified both Jim 2 and E Fletcher as potential Class A persons under Part 2A of the 1990 Act. E Fletcher was subsequently dissolved on 21 October 2014. It therefore became a company which could not be ‘found’ for the purposes of the 1990 Act.

The Council served Jim 2 with a Remediation Notice on 17 March 2015 on the basis that it had either caused or knowingly permitted contamination present on the site. Jim 2 appealed the Remediation Notice on a number of statutory grounds. The Secretary of State called in the appeal for her own decision, in view of its general importance.

The main issues at the appeal concerned: whether the Council had unreasonably determined the land as contaminated, whether the Council had failed to have regard to the 2012 Statutory Guidance, whether the Council had unreasonably determined that the Appellant was the appropriate person to bear responsibility under the 1990 Act, whether the Council ought to have discounted itself as an appropriate person and whether the remediation requirements were reasonable or not.

Given that this appeal was only the second of its kind, it necessarily raised a number of important legal matters, not least the meanings of the terms ‘caused’ or ‘knowingly permit’ and how one should evaluate whether there is a significant possibility of significant harm (‘SPOSH’).

Quite apart from an extremely interesting legal case, the appeal was personally significant for the residents of the 69 houses. The impact of the investigations, determination and service of the Remediation Notice on them in  terms  of  loss  of  value  or  unsaleability of their homes, was abundantly clear at the appeal. Indeed, as the Appellant’s stated in opening their closing submissions, ‘There can be few more important decisions that a local authority is called upon to make in its environmental functions than the identification of land as contaminated land under Part 2A of the Environmental Protection Act 1990.’ This is not least due to the impact upon all those affected by the process. It is therefore imperative that Councils proceed on a proper legal basis informed by up-to-date and robust scientific evidence in making determinations and serving remediation notices. Whether that was the case at this appeal is now a matter for the Secretary of State.

The only other appeal of this kind is the decision in St Leonard’s Court, the decision which was published over two years after the Inquiry. Given the importance of this issue for all involved, it is very much hoped that a decision from the Secretary of State will be forthcoming rather sooner.