The contaminated land regime: time for a regime that is fit for purpose (Part 2)

The purpose of the article is to show that the liability system established by Part 2A of the Environmental Protection Act 1990 is unfit for purpose because its mixture of joint and several liability and proportionate liability makes it impossible to implement and enforce effectively or efficiently as well as making it expensive to administer. The article aims to analyse the liability system and its effect on the implementation and enforcement of Part 2A.

A research approach was taken to examine and analyse Part 2A and the accompanying statutory guidance, and its implementation and enforcement. This approach included researching the liability system of Part 2A in depth, liability systems in other jurisdictions to compare and contrast with the liability system in Part 2A, publications by the UK Government on the progress of Part 2A, and commentaries on Part 2A and its progress.

The paper found that the liability system introduced by Part 2A is too complex to enforce effectively or efficiently. The article concludes that the result is a contaminated land regime that has failed to achieve its purpose in identifying land that poses a risk to human health and the environment and in remediating it.

The paper is the first paper to examine and critique the liability system in Part 2A and its implementation in depth and to suggest issues to consider in its revision so as to replace the regime with a regime that is fit for purpose.