Overturning a High Court judgment, the Court of Appeal has ruled that Powys County Council is not responsible for potential liabilities under the contaminated land regime that was introduced after the council was established in 1996.
Essentially, the 2001 legislation – which is part of the Environmental Protection Act 1990 – cannot be applied retrospectively to authorities established before then. The case involved land near a former landfill site operated by Builth Wells Urban District Council and Brecknock Borough Council.
“The [Powys] county council rightly appealed a High Court decision that said it could be responsible for potentially contaminated land under legislation that was introduced five years after it was established,” said Cabinet Member for Environmental Health, Councillor Jonathan Wilkinson.
He explained that the Court of Appeal’s unanimous decision confirmed that Powys County Council is not a “responsible person” because Part IIA of the Environmental Protection Act was not in effect at the time the former authorities were abolished and Powys County Council was established.
In his judgment, Lord Justice Lloyd Jones said: “Part IIA does not operate retroactively so as to deem a predecessor body to have been under a liability which only arose under legislation which came into force after the predecessor body ceased to exist… Part IIA does not operate retrospectively to create a deemed liability prior to its commencement.”
Barristers Stephen Tromans QC and Rose Grogan acted for Powys County Council. According to 39 Essex Chambers, cases on contaminated land are rare.
“This case is of interest to local authorities, particularly given the fact that local authorities operated landfill sites until the Environmental Protection Act 1990 required this to be done by arm’s length companies,” said the barristers’ chambers.
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