Late last year, appellant Jim 2 Ltd appealed against a remediation notice served to him by a local authority in respect of contaminated land. In a case that is only the second of its kind, the appeal has been called in by the Secretary of State.
The appeal site in question is a residential development in Willenhall comprising 69 houses that was previously occupied by Willenhall Gas Company and latterly the West Midlands Gas Board. It was during its time as a gasworks that the land became contaminated with polyaromatic hydrocarbons (PAHs), in particular a carcinogen known as benzo-a-pyrene.
Between 1965 and 1972 the site was owned by Walsall District Council’s forbear – the Urban District Council of Willenhall – who had purchased it under Part V of the Housing Act 1957 for the purpose of redeveloping it for residential use. During its ownership of the land the council granted itself outline planning permission for development.
Eventually the site was purchased by the appellant Jim 2 Ltd (at the time Maclean Homes), who then went on to sell part of the land to another house builder E.Fletcher. Both developers were granted detailed planning permission for residential developments and the houses were built in the early 1970’s. The inquiry heard however that it was not clear who built the houses so they proceeded on the basis that they were built by both parties.
In 2008 investigations began which resulted in the council determining the site as contaminated land for the purposes of s78A(2) of the Environmental Protection Act 1990 and highlighted Jim 2 and E Fletcher as potential Class A persons under Part 2A of the Act. However, in 2014 E Fletcher was dissolved and could therefore not be ‘found’ for the purposes of the Act.
On the basis that Jim 2 had either caused or knowingly permitted contamination present on the site, a remediation notice was served by the local authority in March 2015.
Jim 2 appealed the notice and because of its general importance the secretary of state has called it in for her own decision.
Not only is this case intriguing because it is only the second appeal of its kind, the effect it can and already has had on the residents of the 69 houses is significant – with values and likelihood of resale both negatively affected.
It is worth noting that the only other case of this kind did not reach a verdict for over two years. Due to the vast number of people involved with this case it will be interesting to see whether the decision is made sooner rather than later.
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