Environmental Protection Act 1990 - Part IIA Contaminated Land: statutory guidance edition 2

This document promulgates revised statutory guidance for the operation of the contaminated land regime following implementation of the Contaminated Land (Scotland) Regulations 2005. It replaces the earlier 2000 version.

PART 6: Specific Considerations Applying to Class B Persons

E.37 The statutory guidance in this Part sets out specific considerations relating to cost recovery decisions where the appropriate person is a Class B person, as defined in Chapter D (that is, a person who is liable by virtue of their ownership or occupation of the contaminated land, but who has not caused or knowingly permitted the significant pollutant to be in, on or under the land).

Costs in Relation to Land Values

E.38 In some cases, the costs of remediation may exceed the value of the land in its current use (as defined in Chapter A) after the required remediation has been carried out.

E.39 The enforcing authority should consider waiving or reducing its costs recovery from a Class B person if that person demonstrates to the satisfaction of the authority that the costs of remediation are likely to exceed the value of the land. In this context, the "value" should be taken to be the value that the remediated land would have on the open market, at the time the cost recovery decision is made.

E.40 In general, the extent of the waiver or reduction in costs recovery should be sufficient to ensure that the costs of remediation borne by the Class B person do not exceed the value of the land. However, the enforcing authority should seek to recover more of its costs to the extent that the remediation would result in an increase in the value of any other land from which the Class B person would benefit.

Precautions Taken before Acquiring Ownership of Land

E.41 In some cases, the appropriate person may have been reckless as to the possibility that land he has acquired may be contaminated, or he may have decided to take a risk that the land was not contaminated. On the other hand, he may have taken precautions to ensure that he did not acquire land which is contaminated.

E.42 The authority should consider reducing its costs recovery where a Class B person who is the owner of the land demonstrates to the satisfaction of the authority that:

(a) he took such steps prior to acquiring ownership of the land, as would have been reasonable at that time to establish the presence of any pollutants;

(b) when he acquired ownership of the land, he was nonetheless unaware of the presence of the significant pollutant now identified and could not reasonably have been expected to have been aware of their presence; and

(c) it would be fair and reasonable, taking into account the interests of national and local taxpayers, that he should not bear the whole cost of remediation.

E.43 The enforcing authority should bear in mind that the safeguards which might reasonably be expected to be taken will be different in different types of transaction (for example, acquisition of recreational land as compared with commercial land transactions) and as between buyers of different types (for example, private individuals as compared with major commercial undertakings).

Owner-occupiers of Dwellings

E.44 Where a Class B person owns and occupies a dwelling on the contaminated land in question, the enforcing authority should consider waiving or reducing its costs recovery where that person satisfies the authority that, at the time he purchased the dwelling, he did not know, and could not reasonably have been expected to have known, that the land was adversely affected by presence of a pollutant.

E.45 Any such waiver or reduction should be to the extent needed to ensure that the Class B person in question bears no more of the cost of remediation than it appears reasonable to impose, having regard to his income, capital and outgoings. Where the appropriate person has inherited the dwelling or received it as a gift, the approach in paragraph E.44 above should be applied with respect to the time at which he received the property.

E.46 Where the contaminated land in question extends beyond the dwelling and its curtilage, and is owned or occupied by the same appropriate person, the approach in paragraph E.4 above should be applied only to the dwelling and its curtilage.


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