I think your last comments are very relevant to this case, the site
is most likely in a state that it may pose a Public Nuisance to visitors.
The owner/resident has been offered very generous compensation and the
property is hazardous to health, but they refuse to leave. Our concerns are,
are we neglecting our duty to protect health or does Human Rights override
those, assuming the resident is aware of the risks? We'd have to put some
measures in place to protect visitors (health workers, utilities, relatives)
at least make them aware of the risks (a big sign outside the house!?).
This is a very interesting, though headache generating case, and the
LA, the EA and the Class A person are struggling to come up with a solution
Will Watson
Sent: 12 June 2002 10:02
> To: [log in to unmask]
> Subject: OWNER REFUSING TO ALLOW REMEDIATION
>
> There are a couple of cases of this going around for questions at present.
> The basic process as envisaged in Part IIA is set out below.
>
> In the case where the Class A person is OK to do the remediation, but the
> owner needs to give permission is covered in the primary legislation.
> S78G of Part IIA EPA 90 requires an owner (or occupier) to grant rights to
> the appropriate person. (This may also apply on land not actually
> contaminated, but needed for example for access).
>
> The person granting rights is entitled to compensation (covered by
> Regulation 6 in the contaminated land regulations). The LA must also
> have "reasonably" endeavoured to consult with the person. Some people
> have suggested turning an owner into a Class A person if and when they
> were aware of the land being contaminated but failed to remediate.
> However, testing whether this really meant both knowledge and ability to
> do something would be new ground.
>
> This is not quite the same as an owner who is also the appropriate person
> who refuses to participate in a remediation scheme. Then they can be
> served a notice and prosecuted for failure to comply. And as Eric
> Shearer says, the land is blighted until sorted.
>
> The debate on whether it is a human right of someone to live peacefully on
> a poisonous site will be interesting (the same would apply to an unsafe
> building). In an extreme case I wonder if they would run the risk of
> civil liability for any damage (harm to health) to anyone visiting the
> site, this would certainly mean they got an uninterrupted enjoyment of
> this right.
>
> JMLowe
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