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

16 - Recovering the Costs of Carrying Out Remediation

16.1 In general, where the ENFORCING AUTHORITY has carried out REMEDIATION itself, it is entitled to recover the reasonable costs it has incurred in doing so ( section 78P(1)). The ENFORCING AUTHORITY has no power to recover any costs it incurred in inspecting the land to determine whether it was CONTAMINATED LAND.

16.2 In deciding whether to recover its costs and, if so, how much of its costs, the ENFORCING AUTHORITY must have regard to:

(a) any hardship which the recovery might cause to the APPROPRIATE PERSON (see paragraphs 10.8 to 10.10 above) and

(b) the statutory guidance set out in Chapter E of Annex 3 ( section 78P(2); see also paragraphs 10.8 to 10.10 above).

16.3 However, the ENFORCING AUTHORITY has no power under section 78P to recover its costs where:

(a) the authority itself was the APPROPRIATE PERSON;

(b) the person who would otherwise have been an APPROPRIATE PERSON for a REMEDIATION ACTION could not have been required to carry out that action under the terms of a REMEDIATION NOTICE, because it related to the POLLUTION OF THE WATER ENVIRONMENT or to the escape of the POLLUTANT from other land ( section 78N(3)(d)); or

c) the authority carried out the REMEDIATION with the written agreement of the APPROPRIATE PERSON ( section 78N(3)(b)).

16.4 In the first two of these cases, the ENFORCING AUTHORITY has itself to bear the cost of carrying out the REMEDIATION (see paragraphs 16.7 to 16.9 below).

16.5 If the ENFORCING AUTHORITY carries out the REMEDIATION with the written agreement of the APPROPRIATE PERSON ( section 78N(3)(b)), reimbursement by the APPROPRIATE PERSON will be under the terms of the written agreement.

16.6 If the ENFORCING AUTHORITY decides to recover all or a part of its costs, it needs to consider whether to do so immediately (which will involve an action in the sheriff court or Court of Session, if payment is not made) or to postpone recovery.

Central Government Support to Local Authorities

16.7 The Scottish Executive have made resources available to local authorities to assist them with carrying out their duties under the contaminated land regime. This includes additional revenue support to cover the costs of drawing up strategies and carrying out site investigation work, and capital grants to cover costs incurred by local authorities in dealing with land contamination where they:

(a) own the land;

(b) are responsible for its contamination; or

(c) have other statutory responsibilities for carrying out remediation, including the use of powers to carry out REMEDIATION under section 78N.

16.8 Support under this programme is not available for work needed solely to facilitate the development, redevelopment or sale of the land. Financial support for remediation in connection with the development or redevelopment of land may be available through the Local Enterprise Companies.

16.9 The Scottish Executive also provides financial support to SEPA.