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

PART 1: Scope of the Chapter

E.1 The statutory guidance in this Chapter is issued under section 78P(2) of the Environmental Protection Act 1990. It provides guidance on the extent to which the enforcing authority should seek to recover the costs of remediation which it has carried out and which it is entitled to recover.

E.2 Section 78P provides that:

"(1) Where, by virtue of section 78N(3)(a), (c), (e) or (f) … the enforcing authority does any particular thing by way of remediation, it shall be entitled, subject to sections 78J(7) and 78K(6) … to recover the reasonable cost incurred in doing it from the appropriate person or, if there are two or more appropriate persons in relation to the thing in question, from those persons in proportions determined pursuant to section 78F(7) …

"(2) In deciding whether to recover the cost, and, if so, how much of the cost, which it is entitled to recover under subsection (1) above, the enforcing authority shall have regard -

"(a) to any hardship which the recovery may cause to the person from whom the cost is recoverable; and

"(b) to any guidance issued by the Scottish Ministers for the purposes of this subsection."

E.3 The guidance in this Chapter is also crucial in deciding when the enforcing authority is prevented from serving a remediation notice. Under section 78H(5), the enforcing authority may not serve a remediation notice if the authority exercises its discretionary powers to carry out remediation itself, by virtue of section 78N. Under that latter section, the authority asks the hypothetical question of whether it would seek to recover all of the reasonable costs it would incur if it carried out the remediation itself. The authority then has the power to carry out that remediation itself if it concludes that, having regard to hardship and the guidance in this chapter, it would either not seek to recover its costs, or seek to recover only a part of its costs.

E.4 Section 78H(5) provides that:

"(5) The enforcing authority shall not serve a remediation notice on a person if and so long as

"(d) the authority is satisfied that the powers conferred on it by section 78N below to do what is appropriate by way of remediation are exercisable..."

E.5 Section 78N(3) provides that the enforcing authority has the power to carry out remediation:

"(e) where the enforcing authority considers that, were it to do some particular thing by way of remediation, it would decide, by virtue of subsection (2) of section 78P … or any guidance issued under that subsection, -

"(i) not to seek to recover under subsection (1) of that section any of the reasonable cost incurred by it in doing that thing; or

"(ii) to seek so to recover only a portion of that cost;...."

E.6 The enforcing authority is required, in relation to cost recovery, to have regard to the statutory guidance in this Chapter.