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Remediation notices served on polluters

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 already kicked off actions, according to Environment Agency head of land quality Mark Kibblewhite. The first legal actions, or remediation notices, could be served by the end of next month, he predicted.

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

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

The onus is 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 underresourced and so struggle to produce the necessary weight of evidence. By contrast, appellants will hire consultants to deliver specialist, technical counter arguments, 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 barrister with law firm Simmons & Simmons environment department Justine Thornton predicted that appealing on technical grounds would make for 'a nightmare in court'.

As most cases will 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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