The Polluter Pays - If you can find him
15 May 2009
St David’s Day saw the introduction of the Environmental Damage (Prevention and Remediation) Regulations 2009. Aimed at the prevention of environmental damage and the remediation of such damage as has already occurred, the Regulations have potentially far-reaching consequences for landowners.
The responsible operator
The Regulations cover “activities” carried out by an “operator” which can include:
• certain discharges to inland surface water,
• the release or transportation of genetically modified organisms and
• any activity where damage is caused intentionally or negligently to protected species or on a site of special scientific interest.
The activity in question must either have caused or be threatening to cause environmental damage to water or land. If there are reasonable grounds for belief that such damage is imminent, the enforcing authority can require the “responsible operator” immediately to take all practicable steps necessary to prevent the damage occurring. So, for example, the landowner who spreads slurry on a site which, although he is not aware of it, is home to a rare species of orchid will be liable if he fails to take immediate action to prevent damage to the species and, if the damage has already occurred, if he fails to take such measures as may be required to remediate the damage. The penalty for failing to act will depend upon the severity of the case, but will involve criminal prosecution and could involve an unlimited fine and two years in prison.
Even if the landowner is not the “responsible operator” whose actions caused the problem, he may be responsible for some or all of the clean-up costs if, for example, the damage results from fly-tipping on his land.
Exemptions
There are some exemptions from liability; where, for example, the cause of the damage is an “exceptional natural phenomenon” such as severe flooding, or an act of terrorism (although activist attacks on GM crops would be unlikely to be included in this definition). However, the act or event needs to be something truly exceptional.
Enforcement
The basic rule is that the authority responsible for granting the relevant permit for the activity in question enforces, whether that is the local authority, the environmental agency or Natural England. The unlucky operator could be faced with action from all three.
In respect of prevention, the action will be by way of a notice specifying the threat, the measures to be taken and the period within which they must be taken. Failure to comply with the notice is a minimal offence.
Once damage has occurred, the enforcing authority will attempt to ensure that remediation is carried out by serving a notice in similar terms, although there is a limited right of appeal in this case.
Costs and time-limits
The Regulations provide for the recovery of costs from third parties causing damage. Where those parties cannot be traced and it is clear that the operator has not caused the damage, either directly or through negligence, then the enforcing authority will be responsible for taking action at its own expense.
Unfortunately, the time limit within which enforcement action can be taken stretches thirty years into the future, a fact which will have many landowners reaching for their insurance policies.
The above is an overview of very complex Regulations. Those involved in activities which have the potential to cause environmental damage should seek advice at an early stage.
Marita Jones
Partner
Head of Environmental & Planning
www.brachers.co.uk
01622 690691
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