The High Court decision in Corby Group Litigation v Corby District Council highlights the need for organisations, including local authorities and developers, to take their environmental responsibilities seriously, particularly when dealing with the reclamation of land.
The claim related to birth defects said to have been caused to a group of children born between 1986 and 1999 as a result of negligence, breach of statutory duty and public nuisance on the part of Corby Borough Council and its predecessor, Corby District Council (CBC), in connection with the reclamation of the extensive British Steel (BSC) site to the east of Corby. CBC decided to acquire the bulk of the BSC site in 1979 and initiated extensive reclamation of that whole area over a 15 year period from about 1983 to 1997.
The claimants alleged that the birth defects had been caused as the result of their pregnant mothers' ingestion or inhalation of harmful substances generated by the reclamation works and spread in various ways throughout many parts of Corby.
The judge held that the land reclamation programme was not carried out safely and in accordance with best practices at the time for the management and disposal of contaminated waste. He arrived at the following conclusions about the reclamation:
- From 1983 onwards, CBC's approach was to "dig and dump". The judge accepted the evidence of the claimants' waste management expert that it was seen by those responsible as a relatively simple engineering operation involving unknown quantities of often unknown materials rather than the highly complex reclamation process it should have been. There was no appropriate assessment of risks to the wider environment and its population.
- Very large quantities of more or less contaminated material were carried on public roads with CBC's knowledge.
- Large quantities of more or less contaminated material were dropped on public roads from 1984 to 1997 with CBC's knowledge.
- Very substantial quantities of dust were created by the reclamation and associated operations. That dust came from operations and materials actually on the site as well as from materials dropped or blown onto the road by or from the lorries transporting the material.
- The bulk of the mud and dust on the road was from the CBC former BSC site and operations.
- There were no effective wheel washing facilities for vehicles leaving the BSC site at any time and CBC was aware of that.
- The many thousands of lorries which left the BSC site with contaminated materials on them were not sheeted until the final reclamation job and even then the sheeting was manual and not particularly effective.
- CBC at no material time employed any person at senior or middle management levels who had any relevant experience or training in running or managing or supervising reclamation operations involving contaminated sites.
The judge held that CBC were in breach of a duty of care owed to the claimants and their mothers to exercise reasonable care and skill in the execution of the works to avoid injury or birth defects to them. In practice, that duty involved taking reasonable care to prevent the dispersion of mud and dust containing contaminants from the sites which they owned or operated which would lead to the airborne exposure of the claimants' mothers. He went on to say that any competent local authority should have been aware of the potential harm to members of the public from dust generated at a site such as Corby and should have taken active steps to ensure that dust was not generated either on site or by or during the transportation of materials from the site.
CBC's negligence led to the extensive dispersal of contaminated mud and dust over public areas of Corby and into and over private homes with the result that the contaminants could realistically have caused the types of birth defects complained of by the claimants (save in limited respects).
The judge held CBC liable in public nuisance, negligence and breach of statutory duty (under the Environmental Protection Act 1990) subject to it being established in later proceedings by individual claimants that their particular conditions were actually caused by the defaults identified by the judge.
In light of the judgment, organisations should take their environmental health responsibilities seriously and ensure that appropriate risk assessments and due diligence are carried out before purchasing any site or carrying out any work on it. Risks must be comprehensively identified and assessed. Thorough practical and effective methods of work should be devised as a result and measures put in place to ensure that they are followed on the ground. This may include ground or chemical investigation so as to ascertain the extent, location and concentration of contaminants.
The Corby reclamation was a "one-off" involving a very large contaminated steel work site very close to a town centre. The judge noted that while there will remain brown-field sites in the UK which are contaminated, there will be very few which are as large or as extensively contaminated as the Corby site. However, if work is to be carried out on a contaminated site appropriate precautions must be taken in light of all the circumstances. Organisations should consider both those working on site and those potentially affected off site, whether as a result of vehicle movement, wind blown contamination or ground water leaving site.
The judge also held that CBC had bitten off more than it could chew and did not really appreciate the enormity, ramifications and difficulty of what it was setting out to achieve in terms of removing and depositing very substantial quantities of contaminated material. While reclamation methods have moved on substantially since the 1990s the case is a reminder that organisations should employ individuals or consultants at senior or middle management levels with relevant experience or training in running, managing or supervising reclamation operations involving contaminated sites to ensure the works are carried out effectively and safely.
Don't forget that, in addition to the risk of having to pay damages, there are many criminal charges open to Regulators with significant sanctions available. Offences could be committed even if material is within the site. Very little of this liability will be insured.