The Sevenoaks case is well worth reading up on but did have several twists
with complicated arrangements between a land owner and development agent
and the later land owner/developer. Such arrangements indicate the need
for a regulator to keep the initial body of persons informed of
determination broad and to be aware that a developer should be, but need
not necessarily be, aware of his agents knowledge.
Notification of determination is the opportunity for those people to
clarify their role and the knowledge of others before the enforcing
authority sets off to apply the liability tests in preparation for a
remediation notice. This point is reinforced several times in the regime.
I think its reasonable at determination for an enforcing authority to
assume a development group will have knowledge of the continued presence
of substances (knowingly permit) until it gets evidence to the contrary
(which its not obliged to believe). Later during any liability
assessment, liability Test 6 concerning the introduction of receptors or
pathways keeps developers in the frame but this comes after 5 other tests
including sold with knowledge which is often the most relevant for
developments sites. D78 and 84 of the guidance have some further
liability points regarding means and reasonable opportunity after
knowledge.
I would assume the state of industry knowledge on cont land issues at the
time of development would probably be relevant to knowledge, means and
reasonableness.
Not having looked for or acted on substances when they should reasonably
have done so approaches negligence and I would be loath for it to disapply
the strict liability principles of part IIA. Some of you may have
encountered companies or individuals who adopt ignorance as a policy.
No doubt you looked at the circular 01/2006 s9.8. One thing its not very
good at is commenting on acts of omission for example if failing to look
disapplies the principle of knowingly permitting the continued presence.
Is there a legal eagle to advise further on what the guidance s9.8 says
ie that "caused or knowingly permitted" is a 100 year old principle. I
would expect such an old principle to have been tested on the point of
ignorance of a problem before.
PS don't let the liabilities issues put you off determining the site if
necessary and then deciding if its urgent. It might even be a special
site. Remediation liability issues should come after not before
determination tempting as it is to worry about them first.
Martin Wright
Scientific Officer
Environmental Protection
Vale Royal Borough Council
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