The Circular Facilities case involved a landmark action being brought by an LA against a developer who had built a housing development on a former brickwork site. The LA required remediation work to be carried out after the buildings had been completed. However, after lengthy and bitterly fought litigation, the case was settled out of court with the LA withdrawing the remediation notice. Reports indicate that the LA withdrew because of financial considerations; indeed, the LA has reckoned that it was easier to deal with necessary remediation work itself rather than press on with the unknown costs of yet more litigation. In addition, the rules on disclosure of evidence can make it difficult for an LA to prove that a developer had the requisite knowledge (especially if over 20 years have elapsed) and thus the outcome of legal action will often be uncertain. In short, an attempt to follow up a remediation notice by legal action has failed – and this in litigation was largely seen as trail-blazing. Accordingly, the retreat by the LA is being interpreted by many as an admission that the remediation regime is unenforceable.

As a counter-balance to the collapse of that litigation, it is also worth noting that the High Court has found National Grid Gas liable under the contaminated land regime for contamination caused by its predecessors (a liability that could cost £1bn in total, and which will be relevant to other industries and organisations that had been nationalised or privatised). But, whatever the success of that litigation, the fact remains that the remediation regime in respect of local developments (as with the housing estate, above) is proving to be toothless and ineffective. In simple terms, LAs generally do not have the technical expertise, or financial resources, to take on the larger developers. Source: www.practicallaw.com/4-202-3960 (subscription service). © Practical Lawyer