The Circular Facilities case involved an action brought by a LA against a developer who had built a housing development on a former brickworks site. The LA required remediation work to be carried out after the buildings had been completed. As we noted previously, the original magistrates court decision against the developer was overturned at the High Court and a retrial ordered. However, the parties then agreed to settle out of court – with the general understanding being that the LA has, for financial reasons, simply abandoned the proceedings by withdrawing its remediation notice.

As such, the saga illustrates the patent inability of LAs to enforce the statutory regime. The lack of resources and technical expertise makes it difficult for LAs to identify land that is contaminated, and even more difficult to then ascertain who caused or knowingly committed the contamination (especially when it may have occurred decades before). Apart from those practical problems, there are the great uncertainties faced by LAs over recovery of costs expended in carrying out remediation works themselves. In practical terms there is a great unwillingness by LAs to use the regime at all (the potential financial risks can be enormous). And, moreover, how many LAs really want to take on expensive litigation with well-funded developers?

In practice, what seems to be happening is that many LAs are now moving their attention away from the contaminated land regime and instead focusing on the planning regime when brownfield sites are redeveloped. The practical consequences of the collapse of the Circular Facilities litigation is that other LAs will be more wary of taking formal action under the regime than they were already; any encouragement aimed at relevant appropriate persons to carry out voluntary remediation in order to avoid the stigma and blight associated with their land formally designated as contaminated, and having a remediation notice served, may consequently stop. If land is not designated as contaminated and remediation notices are not served, then voluntary remediation will surely fall away. See note in [2006] 172 Property Law Journal 6. © Practical Lawyer