This document discusses two recent court cases related to contaminated land: 1) Jim 2 Limited v Walsall Metropolitan Borough Council, which examined whether Jim 2 was an "appropriate person" responsible for remediation of a former gasworks site. Key issues included what constitutes "knowingly permitting" contamination. 2) Powys County Council v Price, which considered whether Powys CC was an "appropriate person" responsible for a former landfill site. A key issue was whether liabilities transferred to Powys CC in 1996 included Part 2A EPA 1990 liabilities. The implications are that the Part 2A contaminated land regime may no longer be functional, and there will be increased focus on the planning system and

1. RECENT APPEAL DECISIONS AND CASE LAW ON
PART 2A
ANGUS EVERS
PARTNER
angus.evers@shoosmiths.co.uk
+44 (0)20 7 205 7038
+44 (0)7912 476 129
www.shoosmiths.co.uk

2. CONTAMINATED LAND
Jim 2 Limited v WALSALL METROPOLITAN
BOROUGH COUNCIL (APP/CL/15/3)
1902-1948:
Willenhall Gas
Company
operates
gasworks
1965: Willenhall
Urban District
Council acquires
site for housing
development
1971: Council
applies for
outline
planning
permission for
residential
development
1948-1957: West
Midlands Gas
Board operates
gasworks
1972 (June):
Jim 2 sells
part of site
to E. Fletcher
Builders Ltd
1972 (Feb): Jim
2 Ltd buys site
with benefit of
planning
permission
1972 onwards: Jim 2
and Fletcher obtain
reserved matters
approvals and build
approx. 90 homes
2012: Walsall MBC
determines site as
contaminated land
under Part 2A EPA
1990; Identifies
Fletcher as Class A
appropriate person
and serves remediation
notice
2014: Fletcher
liquidated
2015: Walsall
MBC serves
further
remediation
notice on Jim
2; Jim 2
appeals

3. CONTAMINATED LAND
Jim 2 Limited v WALSALL METROPOLITAN
BOROUGH COUNCIL (APP/CL/15/3)
Was Jim 2 an “appropriate person” with responsibility for carrying out
remediation works in respect of the former gasworks?
If not, who else was an “appropriate person”?
Issues
• To “knowingly permit” contamination, does a person need to knowingly permit:
• the specific substance that leads to the land being designated as
contaminated land; or
• contamination generally?
• What amounts to “knowingly permitting”?
• What amounts to “causing”?
• Was an acknowledgment in the sale contract between Walsall MBC and Jim 2 that
certain parts of the site might be unsuitable for building sufficient to give Jim 2
knowledge of the contamination, so that the site was “sold with information”?
• Had Jim 2 and Fletcher “introduced pathways or receptors” onto the site?

4. CONTAMINATED LAND
Jim 2 Limited v WALSALL METROPOLITAN
BOROUGH COUNCIL (APP/CL/15/3)
If the site had been “contaminated land” in the first place, would Jim 2 have
been an “appropriate person” with responsibility for carrying out remediation
works in respect of the former gasworks?
If not, who else was an “appropriate person”?
Issues
• To “knowingly permit” contamination, does a person need to knowingly permit:
• the specific substance that leads to the land being designated as
contaminated land; or
• contamination generally?
• What amounts to “knowingly permitting”?
• What amounts to “causing”?
• Was an acknowledgment in the sale contract between Walsall MBC and Jim 2 that
certain parts of the site might be unsuitable for building sufficient to give Jim 2
knowledge of the contamination, so that the site was “sold with information”?
• Had Jim 2 and Fletcher “introduced pathways or receptors” onto the site?

5. CONTAMINATED LAND
POWYS COUNTY COUNCIL V PRICE
[2017] EWCA CIV 1133
Early 1960s:
Builth Wells
UDC opens
landfill site on
Mr Price’s farm
1993: landfill
site closed
1996:
Brecknock BC
abolished;
functions taken
over by Powys
CC
1974: Builth
Wells UDC
abolished;
functions taken
over by
Brecknock BC
2001 (Sept):
Part 2A EPA
1990 comes
into force
2001 (Aug):
Powys CC
granted lease
for leachate
treatment
plant
2007: House
of Lords’
‘Transco’
judgment
2013: Powys
CC
reconsiders
assumption
of liability
under Part
2A EPA 1990
2015: Powys
CC terminates
lease; ceases
monitoring
and
mitigation
2016: High
Court grants
declaration
that
liabilities
transferred
to Powys CC
in 1996
included
liabilities of
Brecknock
BC under
Part 2A EPA
1990

6. CONTAMINATED LAND
POWYS COUNTY COUNCIL V PRICE
[2017] EWCA CIV 1133
Was Powys CC an “appropriate person” with responsibility for
carrying out remediation works in respect of the former landfill
site?
Issues
• Did the “liabilities” transferred to Powys CC in 1996 include
liabilities under Part 2A EPA 1990?
• Could this case be distinguished from the ‘Transco’ case?

7. IMPLICATIONS OF WILLENHALL AND POWYS CC V
PRICE DECISIONS
• Part 2A Environmental Protection Act 1990 contaminated land
regime no longer functional?
• Increased focus on planning system as a means of remediating
contaminated sites
• Don’t assume that the “polluter pays” principle applies
• Increased emphasis on reliance from consultants and contractors?
• Increased risks for current owners and occupiers?