Environmental Protection Act 1990 - Part IIA Contaminated Land: statutory guidance edition 2

10 - Limits on Costs to be Borne by the Appropriate Person

10.1 When the ENFORCING AUTHORITY has APPORTIONED the costs of each REMEDIATION ACTION between the various APPROPRIATE PERSONS, and before proceeding to serve any REMEDIATION NOTICE on that basis, the authority must consider whether there are reasons why any of the APPROPRIATE PERSONS on whom that notice would be served should not be required to meet in full the share of the cost of carrying out the REMEDIATION ACTIONS which has been APPORTIONED to him. The importance of this question is that it may preclude the ENFORCING AUTHORITY from serving a REMEDIATION NOTICE in respect of those actions on any of the APPROPRIATE PERSONS at all (see paragraph 10.5 below).

10.2 To decide this question, the ENFORCING AUTHORITY needs to consider the hypothetical circumstances which would apply if the authority had carried out itself the REMEDIATION ACTION or actions for which each APPROPRIATE PERSON is liable. Specifically, the authority needs to consider whether, in these hypothetical circumstances, it would seek to recover from each APPROPRIATE PERSON all of the share of the costs which has been APPORTIONED to that person

10.3 In making its decision on whether to carry out remediation itself and recover costs from an appropriate person, the authority must have regard to:

(a) any hardship which may be caused to the person in question (see paragraphs 10.8 to 10.10 below); and

(b) the statutory guidance in Chapter E of Annex 3 ( section 78P(2)).

10.4 If the ENFORCING AUTHORITY decides that, in these hypothetical circumstances, it would seek to recover from each APPROPRIATE PERSON all of the share of its reasonable costs APPORTIONED to that person, the authority can proceed to serve the necessary REMEDIATION NOTICES on the basis of its apportionment.

10.5 However, if the ENFORCING AUTHORITY decides, with respect to any REMEDIATION ACTION, that it would seek to recover from any APPROPRIATE PERSON none, or only a part, of that person's apportioned share of the authority's reasonable costs:

(a) it is precluded from serving a REMEDIATION NOTICE specifying that action both on the APPROPRIATE PERSON in question and on anyone else who is an APPROPRIATE PERSON in respect of that action ( section 78H(5)(d)); and

(b) the authority has the power to carry out the REMEDIATION ACTION in question itself ( section 78N(3(e); see also paragraphs 11.7 to 11.11 below).

10.6 Where, in a case of this kind, the ENFORCING AUTHORITY does then decide to exercise its powers and carry out particular REMEDIATION ACTIONS, the authority will be entitled to recover its reasonable costs of doing so when it has completed the work. In deciding how much of those costs it will seek to recover, the authority will need to work on the basis of circumstances as they exist at that point. In practice, however, the decision that the authority has taken on the hypothetical basis described in paragraph 10.2 above will normally settle the questions of limits on the actual recovery of costs. Nevertheless, if there is evidence that the circumstances of the APPROPRIATE PERSON have changed in some relevant respect after the ENFORCING AUTHORITY has made its initial decision on this question, it will need to reconsider its decision as to how much of its reasonable costs it will seek to recover.

10.7 Further details about actual cost recovery are given in section 16 of this Annex.

The Meaning of the Term "Hardship"

10.8 The term "hardship" is not defined in Part IIA, and therefore carries its ordinary meaning- hardness of fate or circumstance, severe suffering or privation.

10.9 The term has been widely used in other legislation, and there is a substantial body of case law about its meaning under that other legislation. For example, it has been held appropriate to take account of injustice to the person claiming hardship, in addition to severe financial detriment. Although the case law may give a useful indication of the way in which the term has been interpreted by the courts, the meaning ascribed to the term in individual cases is specific to the particular facts of those cases and the legislation under which they were brought.

10.10 In deciding whether there would be hardship, and its extent, the matters considered in Chapter E may well be relevant.