Developer liable for pollution it didn't create

A developer acquired a former chemical works. The site had previously been used in connection with the manufacture of industrial products for a number of years. The developer subsequently developed the site for housing.

A number of years passed and a local water company became concerned about elevated concentrations of bromate (a suspected human carcinogen) and bromide (which can be toxic at high concentrations) in groundwater. The levels were in excess of acceptable drinking water standards, and a 20 km plume was traced back to the site.

The site was subsequently designated as “contaminated land” by regulators and the regulator identified both the developer and a former owner as the “appropriate persons” under Part IIA of the Environmental Protection Act 1990.

Both companies were found liable, and both unsuccessfully appealed. The former owner on the basis that they have not fully disclosed all information (and therefore had not passed on all liability to the developer). The developer for exacerbating the preexisting pollution conditions during its site ownership.

The consequences

Nine public supply boreholes were closed as a result of the pollution, costing millions of pounds for the water company. The water companies also indicated the cost of future remediation work could run into millions, and last up to 10 years. The possibility exists for the water company to seek to recover damages.

This case demonstrates how owners and developers can attract liability for pre-existing pollution conditions that they may not have originally created. It also demonstrates how significant environmental liabilities can arise, post-sale and development