Crest Nicholson Residential Ltd, R (on the application of) v Secretary of State for Environment, Food & Rural Affairs & Ors

For liability under the contaminated-land regime, the question is whether the claimant caused or knowingly permitted the relevant substances to be present in, on or under the land when it was determined to be contaminated land. Historical conduct may establish that causal connection, including conduct which caused contaminants to migrate deeper into the ground or prevented their removal. An inspector’s report must be read as a whole and in its factual and statutory context. A court should not infer an error of law merely because the reasoning is concise or relies on historical events, where the correct issue and the causative mechanism are clear. An unsuccessful claimant will ordinarily pay only one set of costs unless an interested party’s position justifies a departure from that rule.

The claimant sought permission to judicially review a revised remediation notice issued under the contaminated-land provisions of the Environmental Protection Act 1990. The notice identified the claimant as an appropriate person liable for remedial works concerning bromide and bromate contamination at a development site.

The claimant argued that the inspector and the Secretary of State had addressed only whether its historic activities caused contaminants to enter the land, rather than whether they caused the contaminants to be present when the site was identified as contaminated land in 2002. It also alleged that the reasoning was inadequate. The central issue was whether there was a good arguable case of legal error.

1. Permission dismissed. The claimant had not shown a good arguable case that the inspector or the Secretary of State had erred in law.
2. Sections 78A and 78F of the Environmental Protection Act 1990 required attention to the condition of the land at the date when it was determined to be contaminated land. The relevant question was whether the claimant had caused or knowingly permitted the substances which made the land contaminated to be present in, on or under the land at that relevant time. The legislation did not require the claimant to have originally introduced the contaminants to the site.
3. The inspector’s report, read as a whole, addressed that question. The historical events were relevant because they explained the causative mechanism by which the site became, and continued to be, contaminated. The claimant’s demolition of buildings and hardstanding increased infiltration and allowed contamination to migrate deeper into the ground. The inspector accepted that some contamination which would otherwise have been excavated remained beneath the site.
4. The cross-reference to the relevant submissions, together with the report’s treatment of the site-wide contamination, showed that there was no material gap in reasoning. It was reasonable to infer that contamination to which the claimant had contributed was likely still present in 2002. The Secretary of State’s decision letter adopted the same reasoning and adequately explained why the claimant’s argument failed.
5. The court declined to determine the delay objection because permission failed on the merits. Had the case been otherwise arguable, delay would not have been a reason to refuse permission. The claimant was ordered to pay certain interested parties’ acknowledgement-of-service and expedition costs, but not their general costs of the claim and hearing, applying the ordinary rule identified in Bolton.