Whose liability is it anyway? Residual liability for historic landfill sites

Simon Colvin, Weightmans, Leicester

You might be disappointed to discover this article is not about the comedy sketch programme hosted by Sandy Toksvig in the 1990s. Instead, this article is about the rather more serious issue of residual liability for historic landfill sites operated by local government authorities or used by those authorities for the deposit of waste.

It is reported that there are approximately 21,000 historic landfill sites in the UK which date from between 1890 and 1990. Many of these landfill sites were constructed and operated using a dilute and disperse approach to contamination; essentially, bury the problem and over time it will go away.

Modern landfill sites are subject to strict controls from sources such as the EU Landfill Directive. They are constructed with impervious cells that include systems to capture and remove any leachate that is processed and to dispose of it appropriately. These systems often operate alongside landfill gas collection systems that collect landfill gas that is then burnt in generators to produce electricity.

Older sites that do not have the leachate and gas collection systems pose an ongoing threat to the environment in terms of ground water sources used for drinking water and other purposes, nearby surface water courses, nearby residential and commercial properties and development sites, and also coastal waters where some coastal landfill sites are under threat of flooding and erosion.

When such problems are uncovered, whose responsibility is it to deal with them? Is it the current site owner, the owner of the adjoining site that is impacted, those responsible for the deposit of the waste materials or those responsible for the operation of the site both now and in the past?

The answer is it depends on the circumstances. There are numerous legal avenues that need to be considered.

The common areas of potential liability associated with such sites are as follows:

  • Where permits and licences continue to exist, then liability typically attaches to those, but as the majority of sites are historic, any permits have often been surrendered and are no longer relevant.
  • In the absence of any permits, the UK contaminated land regime comes into play, alongside other regimes such as the Water Resources Act 1991 and the Environmental Permitting Regulations 2010 (as amended). These all contain offences relating to contamination and give regulators wide-ranging powers to address problem sites. It should be noted that regulators are often reluctant to exercise their powers unless environmental harm is being caused or there is a significant risk or threat of such harm.
  • Where others have suffered harm, either in terms of their property or some form of personal injury, they might pursue nuisance or negligence claims. To do so, they will need to show they have suffered some form of harm or loss as a result of something caused by the former landfill site. They will also need to demonstrate that those who operated the site owed them a duty of care, perhaps because the risk of harm to others should have been foreseen. Needless to say, bringing a nuisance or negligence claim in relation to something that has its origins many years ago can be very difficult to establish. Often there have been a number of intervening acts and events that can make it very hard to establish a causal link.

If you are unfortunate enough to face a claim or action in relation to a former landfill site, or you believe you may have responsibility for such a site and you want to take some pre-emptive action, here are some of the things you should consider.

The problem and possible solutions

As a first step, it is important to properly characterise a site and to understand the exact nature and cause of the current problems being experienced. What is the contamination, where is it coming from and why, and where is it going to and how?

Should you go looking for problems? Bear in mind you might find out more than you bargained for and then be under an obligation to take action. Undertaking works might also give rise to a cause for concern on the part of those in the surrounding area. Think carefully before you instruct any intrusive investigation work by an environmental consultant.

You need to consider the scope of any investigations – how much do you do? This will in part depend on the nature of the associated risks. The higher the risks, the more you might want to explore.

You need to determine whether you have access rights to the affected areas.

Do you need to apply legal privilege to any such investigations? If you do, what is the best way of implementing legal privilege and ensuring it continues to apply?

You will need to identify potential solutions and evaluate the associated costs.

Land ownership

Who are the current owners of the land? Who were the previous owners of the land? Have there been any leases or licences of the land? Who knew, or should have known, about the nature of the environmental issues being experienced at the site? What do the Land Registry records show?

Corporate identity

If you can identify any entities that have had an involvement with the site, what do searches of Companies House reveal about the ownership of those entities? Have they been acquired by other companies that continue to exist even if the original entity no longer does? Who were the directors? Were they directors of other companies that exist or which were acquired by companies that still exist?

Permits and planning permissions

Were any environmental permits, waste management licences or other consents in place? If so, whose name were they in and what did they allow? Are there any related records, for example waste movement documents and information?

Was planning permission granted for the site to be used as a landfill and, if so, who had the benefit of the permission and what were they allowed to do? Were there any restoration obligations and, if so, what did they require?

Commercial agreements

Are there any commercial agreements relating to the deposit of waste? What period do these relate to and what did they permit? Often landfill sites were operated by county authorities and their equivalents while other authorities deposited their waste at such sites. In the 1970s, private contractors moved into the market and began to operate landfill sites on behalf of authorities.

Strategy

The questions and actions listed above should help to unearth lots of valuable information. As you digest this information, you should start to form a strategy that will dictate how you engage with any other parties and the next steps you take.

Do you accept any responsibility, or contest the claim? Identifying any culpability at a very early stage can help to resolve disputes much more quickly. Be honest and pragmatic.

If settling a claim, consider the best way of extinguishing the associated liability. Do you need some form of settlement agreement that details the transfer of environmental liability and risk? Should any settlement money be placed into an escrow account to fund specific works to ensure the problem is dealt with and your exposure is extinguished? You also need to consider whether in reaching a settlement you are setting a precedent. Do you have other similar sites and should that be a factor in your decision-making process?

The key message is: do not be rushed into making any decisions. Where you can, allow the other party to do the running unless there are any immediate or imminent threats that dictate you should take an alternative approach.

Simon Colvin
Partner
Weightmans
0161 233 7356
simon.colvin@weightmans.com