Making People Pay

Questions of liabilities were critical to the development of Part IIA, not only to ensure that the resulting regime delivered an effective enforcement mechanism for regulators to use, but also to reassure stakeholders that any liabilities they might face would be reasonable, fair and predictable. 

The existing statutory regimes dealing with land contamination problems had a variety of different liability tests, each of which presented there own difficulties in practice when applied to land contamination, and were not integrated in their approaches  

29 This new section was inserted by paragraph 162 of Schedule 22 of the Environment Act 1995. 

The effect of these concerns about liabilities had wide potential impacts. Fears about residual liabilities were acting as a significant break on private sector investment in brownfield redevelopment projects. There were also threatening severe dislocations in the property market more generally. A further issue was the potential impact on credit-worthiness of small businesses, which might have bank overdrafts and other loans secured against land assets whose value was potentially compromised. 

A core policy requirement for the development of the Part IIA regime was that it should reflect the polluter pays principle . This is internationally accepted as the basic paradigm for environmental liabilities and responsibilities. However, implementing the polluter pays principle for historic contamination is not a simple task. There may, for example, have been a considerable chain of custody for different contaminants over the time they have been in the ground. 

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Rock, P. (1973) Making People Pay, London Routledge Kegan Paul. 

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