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Brownfield pollution cases promise legal bonanza

A LEGAL bonanza is looming following the launch of the first brownfield pollution prosecution cases by local authorities.

The Government's new contaminated land regime, Part IIa of the Environmental Protection Act 1990, will see local authorities taking polluters to court if they fail to clean up contaminated land.

But while they are not obliged to take action until late next year, three local authorities have begun actions, according to Environment Agency head of land quality Mark Kibblewhite. Notices could be served soon, he said.

Remediation notices will name those responsible for site contamination, specify what kinds of clean-up is required, and set out a time scale. But lawyers warned these remediation notices could lead to huge legal wrangles as appeal is possible within 21 days.

The opportunities for contesting evidence supplied by a local authority were extensive, said Deborah Lloyd, an environmental lawyer at law firm Herbert Smith.

'Remediation notices have to be very specific, ' she said. The onus was on local authorities to prove contamination and any potential risk to the environment or human health, she added.

There is also concern that local authorities will be under-resourced and struggle to produce the necessary weight of evidence.

By contrast, appellants will be hiring consultants to deliver specialist, technical counter-evidence, Lloyd predicted.

'In a lot of instances I would probably advise my client to appeal, ' said Lloyd. 'There is a lot of scope for negotiation.'

The guidance document for Part IIa lists 19 grounds for appeal.

But a barrister with law firm Simmons & Simmons' environment department, Justine Thornton, predicted that appealing on technical grounds would make for 'a nightmare in court'.

As the majority of cases would be heard by non-specialist lay magistrates, she said, 'Arguments over whether a notice is geotechnically correct will be disastrous.

Few lay magistrates will have a clue on technical matters.'

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