“Blowin’ In The Wind” – Residents succeed in forcing local authority to take action on contaminated land

The recent High Court decision in R. (on the application of Clear the Air in Havering) v London Borough of Havering has highlighted the need for local authorities to closely adhere to legislation and guidance when deciding whether to determine land as “contaminated”. It has also demonstrated how local residents’ groups may potentially force local authorities into taking action under the contaminated land regime.

Factual background

The land in question, Arnolds Field (the Site), comprised 15 hectares and was located about 400 metres from residential buildings. It had previously been lawfully used for landfill and, since that use had ceased, had been subject to unlawful waste tipping. From at least 2018 onwards, there had been (apparently, spontaneous) fires at the Site to which the local fire service had been called. In 2022 alone, there had been 64 such fires, which produced smoke that affected the nearby homes, school and golf course. The Site, therefore, represented a very significant problem for residents, the local authority and other statutory agencies. 

In 2023, the London Borough of Havering (Havering) commissioned consultants to undertake a contamination assessment at the Site which recommended that, whilst there was evidence of unsafe levels of hazardous substances on-site, the primary way to manage the risk should be to prevent access to the Site. The consultants also advised that any risk from smoke from fires at the Site represented a health and safety concern rather than a contaminated land issue. Other consultants were appointed to carry out monitoring to assess whether particulate matter in the air near the Site contained specific substances of concern emanating from the Site. They concluded that nothing in their monitoring indicated that any limits were likely to be exceeded or give any cause for concern.  

Accordingly, Havering formally decided on 25 April 2024 not to determine the Site as being “contaminated” under Part IIA of the Environmental Protection Act 1990 (ie the statutory contaminated land regime), but, instead, to deal with it as a statutory nuisance under Part III of the Act. Havering duly served a statutory nuisance abatement notice on the owner of the Site, who appealed against it on the grounds that the Site was “contaminated” within the meaning of Part IIA. The abatement notice was revoked by Havering on 20 August 2024 after which no further action was taken under either Part IIA or Part III. The claimants, a group of local residents concerned about clean air in the area, applied to have Havering’s decision not to determine the Site under Part IIA judicially reviewed.  

Legal context

To summarise the position under Part IIA and the associated statutory guidance, for land to be determined as “contaminated”, there must be a “contaminant linkage”, which comprises:

• A “contaminant” – a substance in, on or under land which has the potential to cause significant harm to a receptor or to cause significant pollution to controlled waters
• A “receptor” – something that could be adversely affected by a contaminant (eg a person)
• A “pathway” – a route by which a receptor is or might be affected by a contaminant

Furthermore, a local authority must, by way of a risk assessment carried out in accordance with the statutory guidance, have determined that:

• Significant harm is being caused or there is a significant possibility of significant harm
• Significant pollution of controlled water is being caused or there is a significant possibility of significant pollution.

Under Part III, statutory nuisances include “smoke emitted from premises so as to be prejudicial to health or a nuisance” but sections 79(1A) and (1B) provide that no matter shall constitute a statutory nuisance to the extent that it consists of, or is caused by, land which is contaminated within the meaning of Part IIA. Hence, the owner of the Site appealed against the abatement notice served under Part III on the ground that the Site was contaminated under Part IIA.  

Grounds for challenge

Of the claimants’ five grounds that formed the basis of their application, Ground Three received the most analysis by the judge, Mrs Justice Lieven. It alleged that Havering’s conclusion as to the risk of significant harm to human health:

1. Was based on a misdirection that the off-site pollution impacts of on-site fires were not a potential “contaminant linkage”
2. Had no sufficient evidential basis and was not logically based on the evidence before Havering

In relation to limb (a) of this ground, the claimants’ contention was that Havering had been wrong to conclude that, if smoke was causing impacts on human health, it was a matter for the statutory nuisance regime under Part III and not the contaminated land regime under Part IIA. The judge agreed with the claimants that there was nothing in the legislation or guidance to support that conclusion. Therefore, Havering had misdirected itself that airborne contamination, where the pathway was combustion (ie smoke from the fires), could not give rise to the Site being contaminated within the meaning of Part IIA.

In relation to limb (b), the key issue was whether it was reasonable for Havering to make its decision based on the level of air monitoring which had taken place in 2023. The judge noted that Havering’s first monitoring location (LAL1) was in the wrong position to be able to detect smoke at the relevant time due to the prevailing wind direction, and also noted that the second monitoring location (LAL2) was not brought into operation until after the majority of fires in 2023 had already taken place. Due to these weaknesses, the judge concluded that Havering did not have the necessary data upon which they could rely to properly make the decision not to determine the Site. For this reason, the judge also agreed with the claimants’ Ground Five, which essentially alleged that Havering had acted prematurely because it had not obtained the necessary data on which to base its decision. The claimants’ other grounds were dismissed.  

Havering tried to rely on section 31(2A) of the Senior Courts Act 1981 to the effect that it was highly likely that the decision as to whether to determine the site would be the same if it were taken again.  However, the judge was sufficiently concerned by the apparent confusion demonstrated by Havering throughout the decision-making process that she did not consider that this was an appropriate case for s.31(2A) to apply.

Comment

The court’s conclusion that smoke can act as a pathway for the purposes of determining contaminated land is important. As average temperatures in the UK continue to rise, the risk of wildfires seems likely to be a recurrent threat, particularly on unlawful waste sites strewn with unmanaged combustible material. Therefore, it is possible that we may see similar cases to that of Arnolds Field in future and local authorities will need to take care to ensure that they interpret the legislation and guidance correctly, particularly when collecting data and assessing risk.  

This case also indicates that residents’ groups may potentially play an important role under the contaminated land regime in future. Local authorities have statutory duties under Part IIA to inspect land and (where appropriate) determine it as contaminated. Since central government funding for contaminated land remediation through capital grants finally ceased in 2017, local authorities have been conspicuously reticent about doing so. However, the threat of judicial review (and the associated cost and publicity) may give local authorities the impetus required to take these obligations more seriously.