England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/05/2006

Mr Justice Forbes:

1. Introduction. The Claimant is National Grid Gas plc. However, for convenience, in this judgment I shall refer to it by its previous name, Transco plc ("Transco"), the name used in the relevant documents and correspondence. Transco itself was previously known as British Gas plc, the company which succeeded to the property, rights and liabilities to which the state-owned British Gas Corporation ("BGC") was entitled or subject upon privatisation under the Gas Act 1986. BGC was itself the product of the Gas Act 1972, which amalgamated the East Midlands Gas Board ("EMGB") and the other eleven Area Gas Boards that had been created by the Gas Act 1948, the legislation which first nationalised the gas industry in the United Kingdom.
2. By this claim for judicial review, Transco challenges a decision of the Defendant, the Environment Agency ("the EA"), dated 13^th September 2005 and communicated by letter of that date, whereby the EA decided that Transco is an "appropriate person" within Part IIA of the Environmental Protection Act 1990 ("the EPA 1990") in respect of contaminated land at Bawtry, Doncaster ("the Bawtry site"), on which a gas works formerly stood, but which was subsequently developed for housing from 1966 and now consists of eleven privately owned residential properties with gardens (i.e. the relevant contaminated part of the overall site). The effect of the EA's decision that Transco is an "appropriate person" is to make Transco liable for a proportion of the costs of remediating the contamination in question.
3. In summary, the basis upon which the EA has decided that Transco is an "appropriate person" in relation to the Bawtry site is that the contamination was caused by one or more of Transco's statutory predecessors which operated at the site until 1965, when the site was sold to a company, Kenton Homes Ltd. Those predecessors are: the Bawtry Gas Company (from the 19^th Century until 1912); the Bawtry and District Gas Company (from 1912 to 1931); the South Yorkshire and Derbyshire Gas Company (from 1931 until nationalisation in 1948) and the EMGB (from 1948 until the sale of the site in 1965). It appears that the actual production of gas at the site ceased at some point prior to 1952.
4. On behalf of Transco, Mr Gordon QC stressed the following particular peculiarities of the liability that results from the EA's decision: (i) that the liability in question is in respect of contaminating substances brought on to the land by one of Transco's predecessors, not by Transco itself; (ii) that the liability had not accrued at the time of the various relevant transfers (as to which, see below) and (iii) that the liability is imposed under a statutory regime which creates new liabilities, different from those which existed at the time the contaminating substances were brought on to the land.
5. The remediation work has now been completed. As a gesture of goodwill, Transco's sister company, National Grid Property Holdings Ltd, provided technical support and assistance to the EA in carrying out the remediation works.
6. The Issues. Stated shortly, Transco contends that it is not an "appropriate person" under Part IIA of the EPA 1990 and that the EA's decision to that effect is demonstrably wrong in law for the following three independent reasons (reflecting the particular peculiarities identified in paragraph 4 above):

(a) Transco did not itself cause or knowingly permit the contamination in question and so cannot be an "appropriate person" within the meaning of section 78F(2) of the EPA 1990 (as to which, see below) – "the Statutory Construction Issue";

(b) the evidence does not establish that the conditions for liability under the then applicable legislation were satisfied at the time of the relevant transfers from EMGB to BGC (by the Gas Act 1972) or from BGC to British Gas plc (by the Gas Act 1986); in any event, no such liability had arisen at the time of the transfers in question and thus there was none to be transferred – "the Absence of Liability Issue"; and

(c) even if there was a liability under any of the then applicable statutory regimes which was transferred under either or both of the Gas Acts 1972 and 1986, those Acts could not operate so as to transfer any liability arising under Part IIA of the EPA 1990, because the 1990 Act imposes a wholly new form of liability and the 1990 Act was not in force at the time of either of the relevant transfers – "the Transfer of Liability Issue".

7. It is common ground that the issues raised by Transco's challenge to the EA's decision are of considerable general importance in that they affect the operation of Part IIA of the EPA 1990 in relation to many sites which have been contaminated by utility companies or undertakers which have subsequently been subject to statutory re-organisation and transfer of assets and liabilities by way of nationalisation, privatisation or local government reorganisation. For example, as Mr Phillip Kirby for Transco pointed out in his witness statement, the issues concern approximately 2000 gasworks sites, about half of which were not owned by British Gas plc at the time of privatisation.
8. The Legislative Scheme: Part IIA of the EPA 1990. Part IIA (Contaminated Land) was inserted into the EPA 1990 by section 57 of the Environment Act 1995. In this part of my judgment, all statutory references are to provisions of Part IIA of the EPA 1990 unless expressly stated to be otherwise. Part IIA came into force on 1^st April 2000. It provides a detailed framework within which contaminated land is to be identified and "remediated" (i.e. cleaned up). In the ordinary way, the enforcement authority for Part IIA is the local authority for the area where the land is located – in this case Doncaster Metropolitan Borough Council.
9. However, where certain forms of contamination are concerned, the EA is the enforcing authority. Such sites are known as "special sites": see section 78C. The Bawtry site is a special site because the contaminating substances involved affect controlled waters and the substances and controlled waters in question fall within regulation 3(c) of the Contaminated Land (England) Regulations 2000.
10. Section 78B places local authorities under a duty to cause their areas to be inspected from time to time for the purpose of identifying "contaminated land" and deciding whether any land identified as such requires to be designated as a special site. "Contaminated land" for this purpose bears a special meaning under section 78A(2), that is to say land which appears to be in such a condition by reason of substances in, on or under it, that either (a) significant harm is being caused or there is a significant possibility of such harm being caused; or (b) pollution of controlled waters is being, or is likely to be, caused. In deciding what is "significant" in this context, and whether pollution of controlled waters is being or is likely to be caused, the authority must act in accordance with statutory guidance issued by the Secretary of State under section 78YA: see section 78Y(5).
11. Following identification of the land as "contaminated" (or designation as a special site, if appropriate) the enforcing authority must serve "on each person who is an appropriate person" a notice (known as a "remediation notice") specifying what that person is to do by way of remediation and the periods within which they are required to carry out the relevant action: see section 78E(1).
12. Section 78F makes provision for determining who is the appropriate person, as follows:

"78F Determination of the appropriate person to bear responsibility for remediation

(1) This section has effect for the purpose of determining who is the appropriate person to bear responsibility for any particular thing which the enforcing authority determines is to be done by way of remediation in any particular case.

(2) Subject to the following provisions of this section, any person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, or under that land is an appropriate person.

13. Ministerial guidance (the "statutory guidance") in Circular 02/2000, Annex 3, Chapter D, Part 2 refers to persons who fall within this category of appropriate persons as "Class A persons": see paragraph D.5(a).
14. Section 78F(2) is qualified by section 78F(3), which is in the following terms:

(3) A person shall only be an appropriate person by virtue of subsection (2) above in relation to things which are to be done by way of remediation which are to any extent referable to substances which he caused or knowingly permitted to be present in, on or under the contaminated land in question.

15. It is to be noted that the liability imposed by section 78F(2) on Class A persons is retrospective in the sense that the activities which constitute causing or knowingly permitting the contamination may pre-date the entry into force of Part IIA (1^st April 2000). As Mr Pleming QC observed in the course of his submissions on behalf of the EA, this is an inevitable consequence of a regime which seeks to ensure the clean up of the country's historic legacy of contaminated land, resulting from activities such as those undertaken at the Bawtry site: see paragraph 16 of Mr Pleming's written skeleton argument.
16. In cases where there are two or more Class A persons in relation to a particular remediation action, the enforcing authority is required to determine in accordance with guidance issued by the Secretary of State whether any, and if so which, of them is to be treated as not being an appropriate person in relation to that action: see section 78F(6). This refers to the so-called "exclusion tests" set out in Chapter D, Part 5 of the statutory guidance. These include, for example, Test 3 "Sold with Information", whereby a Class A person may be excluded if he disposed of land to another Class A person in circumstances where the buyer had sufficient information about the condition of the land to satisfy the requirements of the Test: see paragraphs D.57-61.
17. As I have already indicated, it is for the enforcing authority to establish whether there are Class A persons in relation to the relevant remediation action or actions. However, if after reasonable inquiry, no Class A person has been found, then the owner or occupier for the time being of the contaminated land in question is an appropriate person: see section 78F(4), which is in the following terms:

(4) If no person has, after reasonable inquiry, been found who is by virtue of subsection (2) above an appropriate person to bear responsibility for the things which are to be done by way of remediation, the owner or occupier for the time being of the contaminated land in question is an appropriate person."

18. Such persons are referred to in the statutory guidance as "Class B persons": see Annex 3, Chapter D, Part 2, paragraph D.5(b). There are restrictions on requiring Class B persons to undertake remediation in respect of problems relating to pollution of controlled waters (see section 78J(2)) but otherwise Class B persons are responsible for the remediation of the land which they own or occupy in cases where no Class A person can be found.
19. The main safeguard for Class B persons is that the enforcing authority, in deciding whether to recover all or part of the cost of remediation must have regard to (a) any hardship which such recovery would cause to that person; and (b) any guidance published by the Secretary of State for that purpose: see section 78P(2). The guidance is contained in the statutory guidance, i.e. in Chapter E, Part 3 of Annex 3, and includes guidance on cost recovery as against owner-occupiers of dwellings: see paragraphs E.44-48.
20. In cases where the enforcing authority considers that, if it were to serve a remediation notice, it would decide not to seek to recover the costs of remediation, or to seek to recover only part of the costs, then the authority is empowered to carry out the remediation itself (section 78N(1) and (3)(e)) and is precluded from serving a remediation notice (section 78H(5)(d)). In such a case the remediation is carried out at public expense.
21. Succession within the Gas Industry. In considering the liability of Transco it is necessary to identify the statutory provisions under which Transco has come to be the statutory successor of the relevant previous owners and operators of the Bawtry gasworks site. The relevant history of the gas industry is set out in Phillip Kirby's witness statement. As already indicated, until nationalisation in 1948, the site was operated by the Bawtry and District Gas Company ("B&DGC") from the early 20^th century until 1931 and then by the South Yorkshire & Derbyshire Gas Company ("SY&DGC").
22. The Gas Act 1948, as part of the process of nationalisation, transferred property, rights and liabilities from the previous gas undertakers to the relevant area board (in the case of Bawtry, the EMGB). Section 17(1) of the 1948 Act provided as follows:

"17(1) Subject to the provisions of this Part of this Act, all property, rights, liabilities and obligations which, immediately before such date …, were property, rights, liabilities and obligations of an undertaker to whom this Part of this Act applies, shall on the vesting date vest by virtue of this Act and without further assurance in such Area Board as may be determined by order of the Minister."

23. The Gas Act 1972 reorganised the Gas Industry and section 1(1) transferred property, rights and liabilities from the EMGB to the British Gas Corporation, as follows:

"1(1) As from such day as the Secretary of State may by order appoint for the purposes of this Act …, all property, rights, liabilities and obligations vested in any of the [Area Boards] immediately before that day shall vest in [the British Gas Corporation] by virtue of this Act and without further assurance."

24. The Gas Industry was privatised under the Gas Act 1986. Section 49(1) of that Act provided for the transfer of property, rights and liabilities to British Gas plc in the following terms:

"49(1) On such a day as the Secretary of State may by order appoint for the purposes of this section (in this Act referred to as "the transfer date"), all the property, rights and liabilities to which the Corporation was entitled or subject immediately before that date shall … become by virtue of this section property, rights and liabilities of a company nominated for the purposes of this section by the Secretary of State."

25. The Factual Background. From the early nineteenth century until the early 1970s, the commercial production of coal gas generated harmful residues that were often disposed of on site and were capable of leading to contamination. However, in the 1960s and 1970s, the commercial manufacture of coal gas across the UK was gradually replaced by the production of natural gas. Although those sites or parts of sites that were no longer needed were gradually remediated to the then prevailing environmental standards, potentially hazardous substances often remained.
26. The Bawtry special site now consists of 11 residential properties with gardens, located at numbers 1, 3, 5, 7, 9, 11, 15 and 17 Ivatt Close, numbers 6 and 8 Stirling Avenue and number 14 Gresley Avenue. It currently comprises approximately 0.3 hectares. The site is underlain by Sherwood Sandstone deposits which are classified as a major aquifer. It is on the boundary of the water Source Protection Zone (Zone II, outer Zone) for the Highfields No. 2 groundwater abstraction borehole, some 1.8 km to the north, which abstracts water for public supply. It is also within Zone III (Total Catchment) for other groundwater abstraction points, including the Austerfield source some 2.7 km north.
27. The Bawtry site was originally open land, presumably used for agriculture and was used as a nursery from at least 1893 onwards. The land was purchased by the B&DGC which was reincorporated as a limited liability company in December 1912. Documentary evidence suggests that the gasworks was probably operational from about 1915 onwards. The gasworks is shown to occupy the site on a 1929 OS map.
28. The B&DGC was amalgamated with the SY&DGC on 1^st January 1931. The gas industry as a whole was nationalised in 1948, after which the site was owned and controlled by the EMGB. Since the Gas Industry Directory for 1951 does not list the site as an operational gasworks, it is assumed that gas production ceased shortly after nationalisation, and that the EMGB retained the site for storage and distribution purposes. The 1962 OS map indicates that some of the main structures (e.g. the railway link and main gasholder) had been removed or were no longer in use.
29. In September 1965 the site was sold by the EMGB to Kenton Homes Ltd. In May 1966 the land was subject to an exchange with another company, Kenneth Jackson Ltd. In 1966, Kenneth Jackson Ltd applied for and obtained planning permission from Doncaster Rural District Council for the residential development of the site. On 16^th December 1967, Kenneth Jackson Ltd sold 7 of the 11 plots that now make up the special site to the Secretary of State for Defence. It appears that the houses were already under construction at that point. Subsequently, these 7 plots together with the other 4 plots have passed into private ownership.
30. It is not known exactly when the contaminating substances which in due course triggered the EA's decision in this case were generated. However, it is common ground that the activities that in all probability gave rise to those substances (i.e. the production of coal gas) ceased before 1952 (see above). It is therefore likely that the majority of those activities occurred when the site was in the ownership of B&DGC and/or SY&DGC.
31. It is not possible to say beyond doubt how the land came to be in its current pre-remediation works condition. However, the available evidence (see the witness statement of Stephen Wallace and, in particular, the paragraphs indicated below) suggests the following.

(i) In and around 1965, when the Bawtry site was first sold to private developers, the general practice of the Area Gas Boards was to decommission sites prior to sale (see paragraph 25).

(ii) At that time, it was accepted practice to draw off liquids as far as possible, leaving residues in underground containers that were either backfilled with rubble or capped and built over (see paragraph 26).

(iii) Although coal tar was known to be carcinogenic, at the time it was not considered dangerous to leave coal tar residues under the land, provided they were properly contained (see paragraph 26).

(iv) The records do not show whether EMGB decommissioned the Bawtry site prior to the sale to Kenton Homes Ltd in 1965 (see below): however, the conveyance to that company described the land being conveyed as including "the underground tanks installed on part thereof" (see paragraph 25).

(v) During the remediation works undertaken at the site in the latter part of 2005, two such tanks were discovered. Both were intact (see paragraph 26).

(vi) An expert report prepared by an independent contractor engaged by the EA suggests that, during the development of the site, the developer spread the contaminating materials around the site (see paragraphs 27 and 28).

32. It was Mr Gordon's submission that EMGB neither could nor should have done more that it did when it sold the site in 1965. He further submitted that the available evidence does not establish that, when the site was sold by EMGB, the condition of the land was injurious or likely to cause injury to health or that it would then have constituted a nuisance. He went on to suggest that, if the land became so subsequently, there is nothing to indicate that it did so as a result of any act or default on the part of EMGB or any of its predecessors. However, Mr Pleming made it clear that the EA did not necessarily accept or agree with these particular submissions.
33. In October 2001, a resident of a property in Ivatt Close discovered a pit filled with a tar-like substance in his back garden. On further investigation by Doncaster MBC, this proved to be coal tar, a by-product of the gas making process. As indicated earlier, coal tar was commonly stored or disposed of at gasworks within underground brick-walled tanks.
34. Doncaster MBC was of the view that the land might be a special site, and requested the EA to undertake a more detailed inspection. This work commenced in March 2002, and in January 2003 the EA concluded that the land round Ivatt Close and part of Stirling Avenue was contaminated land, the area following the outline of the old gasworks structures. On 2^nd June 2003, the area was formally identified as contaminated land by Doncaster MBC. Ten of the eleven properties were designated as a special site with effect from 23 May 2003. The eleventh (No. 14 Gresley Avenue) was designated in May 2005.
35. The site investigations found there to be a layer of made ground consisting of a mixture of natural sand and gravel materials, together with debris, wastes and structures derived from the former gasworks. The contaminants were present within the soil, and in particular as part of liquid coal tars found within the redundant gasworks infrastructure below ground.
36. The statutory guidance requires the identification of "significant pollutant linkages" ("SPLs"), i.e. a substance which is a potential source of harm because there is a pathway by which it may reach a vulnerable target or receptor. The Record of Determination by Doncaster MBC identified four separate such linkages, namely:

Polyaromatic hydrocarbons ("PAHs") including benzo(a)pyrene which could reach human beings through dermal contact, ingestion, inhalation of dust or ingestion of vegetables grown in contaminated soil, thereby presenting a significant risk of significant harm;

PAHs including benzo(a)pyrene which could reach property (domestic animals) through dermal contact, ingestion, or inhalation of dust, thereby presenting a significant risk of significant harm. In the event this linkage was reconsidered by the Environment Agency, which considers that there is not sufficient evidence to justify a conclusion that these risks are "significant" and that it would not be appropriate to determine the site as contaminated on the basis of this particular SPL;

PAHs including benzo(a)pyrene which has reached controlled waters (groundwater) through migration through the undisturbed saturation zone, so that pollution of controlled waters has been caused; and

Nickel, which has reached controlled waters (groundwater) through migration through the undisturbed saturation zone, so that pollution of controlled waters has been caused.

37. In its decision document the EA broadly confirmed the conclusions of Doncaster MBC in relation to the SPLs (except for the exposure of domestic animals, see above). Schedule 3 to the decision document confirms the SPL of PAHs present in soil presenting a significant possibility of significant harm to humans who might come into dermal contact with, or ingest or inhale the material. It also confirms the SPL of PAHs which are reaching the aquifer, presenting a significant possibility of significant harm through humans drinking the water or coming into direct bodily contact with it, and of nickel which is continuing to enter the aquifer and thereby causing pollution of controlled waters.
38. Remediation Actions. The EA drew up a draft Remediation Notice stating what remediation actions were considered to be appropriate. The estimated cost of these actions was considered to be in the range £400,000 to £700,000. The remediation actions in question were as follows: (i) background survey, (ii) location of underground structures, (iii) removal of structures and associated contaminated materials, (iv) removal of all contaminated soils to a depth of at least 0.6m, (v) placement of a "geogrid" type separator at 0.6m below ground to prevent future residents accidentally coming into contact with contamination at any lower depth, (vi) replacement of excavated soils with clean material capable of use for domestic gardens and (vii) restoration of the site amenity to conditions equivalent to those before the work (i.e. restoration of levels, drainage, boundaries and garden/domestic infrastructure).
39. The EA's consideration of "Appropriate Persons". The EA duly considered which persons might be regarded as Class A persons in this case. As summarised in paragraph 34 of Mr Pleming's written skeleton argument, in chronological order the identified candidates were as follows: (i) The Gas Industry (various companies), (ii) Kenton Homes Ltd, (iii) Kenneth Jackson Ltd, (iv) the Ministry of Defence, (v) the Local Planning Authority and (vi) subsequent owners and occupiers.
40. Enquiries made at Companies House revealed that both Kenton Homes Ltd and Kenneth Jackson Ltd had been dissolved (on 16^th August 1983 and 10^th May 1993 respectively). Accordingly, both companies had ceased to exist and therefore neither could be "found" for the purposes of Part IIA of the EPA 1990. Mr Pleming made it clear that, if the companies had still been in existence, then the EA would not have considered Kenton Homes Ltd to be a Class A person. However, the EA would have regarded Kenneth Jackson Ltd to be such for having knowingly permitted the continued presence of the contaminating substances on the land, on the basis that the company had knowledge that the land had been used as a gasworks, that it is improbable that it would have been unaware of the presence of the contaminating substances during the development of the site and because it had obtained planning permission and developed the site and thus had had an adequate opportunity to remediate the site (see paragraph 35 of Mr Pleming's written skeleton argument).
41. The EA did not consider either the Ministry of Defence ("the MoD") or the Local Planning Authority (Doncaster MBC as the successor to Doncaster RDC) to be a Class A appropriate person. As Mr Pleming indicated, there was no evidence to suggest that the MoD had any knowledge of the presence of the contaminating substances. The construction of the houses had been undertaken by Kenneth Jackson Ltd, with nothing to suggest that the MoD had had the opportunity and responsibility to exercise direct and active control over the activities of the developer: see paragraph 36 of Mr Pleming's written skeleton argument. So far as concerns Doncaster MBC, the EA concluded that there was no evidence to suggest that the local planning authority had sufficient knowledge of the presence of the contaminants to be a "knowing permitter": see paragraph 37 of Mr Pleming's skeleton argument.
42. Furthermore, the EA's enquiries failed to reveal any information to suggest that any of the subsequent owners and occupiers of the Bawtry site had any knowledge of the presence of contaminating substances and, therefore, none was considered to be a Class A person.
43. As Mr Pleming observed (see paragraph 39 of his skeleton argument), the end result of the EA's process of consideration was that it concluded that the liability group of Class A persons in relation to the Bawtry site consisted of only one such person, namely Transco. In the event that Transco is not a Class A person, then the current owners and occupiers would constitute a single Class B liability group for the "non water-related" SPLs.
44. Having made these findings and as required by paragraph E.35 of the statutory guidance, the EA went on to consider whether, in the light of the non-existence of Kenneth Jackson Ltd, there was any basis for reducing the liability of Transco. As indicated by Mr Pleming (see paragraph 41 of his skeleton argument), the EA concluded that, if Kenneth Jackson Ltd had remained in existence, liability would have been apportioned equally between Transco and Kenneth Jackson Ltd for all the remediation actions except the placement of the geogrid, which was considered to be solely referable to the need to protect the health of residents (who were "receptors" introduced by Kenneth Jackson Ltd as the developer of the site). On that basis, the EA considered itself unable to serve a remediation notice on Transco by virtue of section 78H of the EPA 1990. The EA therefore concluded that it was empowered to undertake the remediation works pursuant to section 78N(3)(e) and to recover an appropriate proportion of its reasonable costs in doing so from Transco.
45. As already indicated, the EA has now carried out the remediation works at the Bawtry site with funding provided by DEFRA as grant-in-aid under the Supplementary Credit Scheme. The grant awarded for the remediation of the eleven special site properties was £695,782, averaging £63,253 per property.
46. In the event that Transco is not a Class A person then, in the ordinary way, the issue of cost recovery would arise as against individual owners and occupiers of the eleven properties, as Class B persons. However, in the present case, the EA has decided that it will not seek to recover any of the costs from any of the owners or occupiers in question, given that they bought their properties in good faith and without notice of the contaminated condition of the land. This decision has been communicated to the various residents both orally and in writing: see paragraph 44 of Mr Pleming's skeleton argument.
47. Ground (a): The Statutory Construction Issue. The first ground upon which Transco claims that the EA's decision is wrong in law is that (as is common ground) Transco did not itself cause or knowingly permit the contaminating substances in question to be in, on or under the land and that, therefore, Transco does not come within the ambit of section 78F(2) and (3) of the EPA 1990 (see above).
48. Mr Gordon submitted that the word "person" is not ambiguous or unclear and that it includes "a body of persons corporate or unincorporate": see section 5 and Schedule 1 to the Interpretation Act 1978. On that basis, he contended that Transco is a different and separate legal person from each of its predecessors and that, therefore, on the facts of this case it was not a person who had "caused or knowingly permitted" the contaminating substances to be present in, on or under the land in question. Furthermore, having regard to the clear and unambiguous meaning of the word "person" and by a parity of reasoning, Mr Gordon contended that the necessary conditions justifying the Court's consideration of the Parliamentary record in order to establish its intention are not satisfied in this case: see Pepper ~v~ Hart (1993) AC 593.
49. Mr Gordon therefore submitted that for "that straightforward reason" Transco cannot be an "appropriate person" within the meaning of section 78F of the EPA 1990. He suggested that the point is put concisely and compellingly by Stephen Tromans and Robert Turrall-Clarke in paragraphs 13.51 to 13.52 of their book on Part IIA of the EPA 1990, "Contaminated Land: the New Regime", as follows:

"Privatised utilities and reorganised local authorities

Class A appropriate persons may well include utility companies such as gas, electricity and water undertakers, which may have gone through a series of transitions, possibly from private to nationalised companies, then privatisation. In the course of this process the entity which caused or knowingly permitted the relevant contamination may have ceased to exist, to be replaced by a successor. The same may well be true of local authorities which have been subject to reorganisation, and of NHS trusts. The question is whether the successor can be regarded as the Class A appropriate person. On a strict application of the rules of corporate personality, the two are separate entities and there is no reason why, for example, Railtrack plc should be treated as the appropriate person in respect of contamination caused by British Railways plc or, for that matter, Great Western Railways before it.

However, one additional factor is that in many of these situations, there will have been a statutory transfer scheme passing assets, rights and liabilities. The question is whether such a scheme could have the effect of bringing the successor company or authority within Class A. The difficulty with this argument is that at the time of transfer the liability in question would not have existed. Indeed the legislation creating that liability would not have existed. It is difficult to see how a transfer scheme could properly be said to have the effect claimed in such circumstances."

50. It was Mr Gordon's further submission that if it had been Parliament's intention that Transco should be deemed to be or treated as the same person for some or all legal purposes as any or all of its predecessors, it could have expressly so provided and that there are precedents for such a statutory provision: see, for example, section 60 of the Gas Act 1986, which provides as follows:

"60. – (1) The successor company shall be treated –

(a) for all purposes of corporation tax and petroleum revenue tax; and

(b) for the purposes of the Gas Levy Act 1981,

as if it were the same person as the Corporation."

Mr Gordon also referred to a number of other examples (such as section 12 of the British Aerospace Act 1980, section 72 of the Telecommunications Act 1984 and section 77(1) of the Airports Act 1986) and submitted that those were the type of words used by Parliament when it intends to treat one company as if it were the same legal person as another.

51. For his part, Mr Pleming maintained that the issue on this point is as to the proper construction of the word "person" as used in section 78F(2) of the EPA 1990 in its relevant factual context ("the context"). It was Mr Pleming's submission that (as is recognised, in effect, in the passage from Contaminated Land: the New Regime, quoted above) the context in question includes the commonly-encountered situation where there has been ongoing activity by an undertaking that has resulted in contaminated land within the meaning of Part IIA of the EPA 1990, but where the identity of the body carrying out the activity has changed, so that the original body or bodies whose specific act or acts actually caused the contamination no longer exist. Mr Pleming suggested that the many examples where this has occurred include public or private undertakers in fields such as utilities and railways, local authorities that have operated (for example) landfill sites for waste disposal and government departments which have been subject to statutory reorganisation.
52. Mr Pleming submitted that, in such cases, the changes in the identity of the body in question will have been effected by and/or involved the statutory transfer of its property, rights, liabilities and obligations to its successor with the important objective (inter alia) of ensuring continuity. It was therefore Mr Pleming's submission that it is in this context that the present issue as to the proper meaning of the word "person" in section 78F of the EPA 1990 falls to be considered and determined.
53. In short, Mr Pleming submitted that the question is whether (i) "person" should be construed to mean (and thus limited to) simply the "original undertaking" i.e. the body constituting the undertaking that actually caused or knowingly permitted the contaminating substances to be in, on or under the land (as Transco contends); or (ii) whether it should be construed to mean the entity comprising the original undertaking that caused or knowingly permitted the contaminating substances to be in, on or under the land and any body that has succeeded to the liabilities of the original undertaking under the relevant statutory scheme (as the EA contends).
54. Mr Pleming accepted that (as submitted by Mr Gordon) the straightforward starting point is that the word "person" will normally be construed so as to correspond to a specific legal entity, applying the strict rules of corporate personality where appropriate. However, Mr Pleming submitted that, in the present case, the context identified and outlined above requires a less constrained approach and a wider, but nevertheless permissible, construction of the word "person", in order to give effect to Parliament's clear intention that primary responsibility for the remediation of contaminated land under Part IIA of the EPA 1990 should fall on the polluter, rather than upon subsequent innocent owners or the public purse ("the polluter should pay" principle): see the summary of the relevant statutory provisions contained in paragraphs 11 to 20 above.
55. It was therefore Mr Pleming's submission that the approach adopted by the EA in the present case, of regarding the relevant entity (i.e. the relevant person) under section 78F as being the various undertakings, bodies and companies from time to time comprising the Gas Industry (rather than each such individual company or body) properly reflects "the polluter should pay" principle and thus accords with Parliament's intention. He further submitted that such an approach is entirely consistent with the statutory framework for the Gas Industry, which strongly indicates that Parliament intended that there should be a seamless transition between those companies or bodies in terms of legal liabilities, as evinced by the provisions to which I have already referred (see paragraphs 21 to 24 above).
56. In effect, therefore, it was Mr Pleming's submission that, in the present case, the term "person" must be read and construed in its proper context in accordance with Parliament's intention, that this requires a construction that is not limited to normal concepts of strict legal personality and that it is to be noted that the Interpretation Act 1978 does not purport to give an exhaustive definition of the term in question. Mr Pleming submitted further that the word "person" is sufficiently flexible in nature to achieve the result advocated by the EA; i.e. that it is a word that can be used perfectly properly to mean an entity comprised of a succession of corporate bodies that have been continuously involved in the relevant activities and in respect of which there are statutory transfer provisions to ensure legal continuity, such as "the Gas Industry".
57. I accept that Mr Pleming's arguments on this aspect of the matter are correct. I agree with his submission that the terms of the relevant statutory provisions contained in Part IIA of the EPA 1990 (in particular, section 78F) demonstrate that Parliament's clear intention is that primary responsibility for the remediation of contaminated land should rest on the original polluter ("the polluter must pay" principle), in preference to innocent owners or occupiers, who should only be liable where the original polluter cannot be "found".
58. I also agree with Mr Pleming's submission with regard to the relevant factual context within which the provisions of Part II of the EPA 1990 fall to be considered and construed in this case. Furthermore, as it seems to me, Mr Pleming's approach to the construction of "person" is entirely consistent with that suggested by Lord Selborne in Caledonian Railway Company ~v~ North British Railway Company (1881) 6 A.C. 114, when he said this (at p.122):

"The more literal construction ought not to prevail, if … it is opposed to the intentions of the Legislature, as apparent by the statute; and if the words are sufficiently flexible to admit of some other construction by which that intention will be better effectuated."

59. I also agree with Mr Pleming that the correctness of his approach and of his suggested construction of the word "person" is well illustrated and supported by the decision of the House of Lords in Income Tax Commissioners for City of London ~v~ Gibbs (1942) A.C. 402: see the speech of Lord Macmillan, where he said this (at pages 418 to 420):

"The word "person" is in the singular, but it includes the plural and also any body of persons corporate or unincorporate: Interpretation Act, 1889, s.1, sub-s.1(b), and s,19. In considering whether a partnership or a group of persons associated in partnership constitutes "a person charged" within the meaning of the rule, I think it right to lay aside any preconceptions derived either from the law of England or from the law of Scotland as to the technical legal nature of a partnership. In Scotland a firm is "a legal person distinct from the partners of whom it is "composed": Partnership Act 1890, s.4, sub-s.2, but this is not so under English law. For the present purpose this distinction should, in my opinion, be disregarded. … The important thing to ascertain is the meaning of the word "person" in the vocabulary of the Income Tax Acts. The word constantly occurs throughout the Acts, and I think that it is most generally used to denote what may be termed an entity of assessment, i.e., the possessor or recipient of an income which the Acts require to be separately assessed for tax purposes. … Having regard to the special vocabulary of the income tax legislation, I find no difficulty in interpreting the words " person charged" in r.9 to include the case of several persons associated together in partnership for the purpose of carrying on a trade in common whose profits are by the Acts made the subject of separate assessment and separate charge. "

60. Similarly, in R ~v~ Minister of Agriculture and Fisheries, Ex parte Graham (1955) 2 Q.B. 140, the Court of Appeal held that, on a true construction of section 104(5) of the Agriculture Act 1947 a sub-committee or a district committee of a county agricultural executive committee is not excluded from being "a person" who may be appointed by the Minister to hear representations, notwithstanding that it was a fluctuating body of natural persons.
61. It was Mr Pleming's further submission that, in these circumstances, the Court is justified in considering the Parliamentary record in order to establish whether its intention was that "person" within the expression "any person, or any of the persons who caused or knowingly permitted …" in section 78F(2) should bear the extended meaning contended for by the EA in this context. Mr Pleming submitted (correctly, in my view) that this was a permissible exercise on the basis that the expression of legislative intention in section 78F(2) is ambiguous or obscure in the factual context of a case such as this and that there are Ministerial statements which provide a clear indication of the result intended by Parliament in that factual context: see the speech of Lord Browne-Wilkinson in Pepper ~v~ Hart (supra) at page 640C.
62. Mr Pleming produced (as an Annex to his written skeleton argument) the various Ministerial statements, together with the relevant contextual Parliamentary history, that he contended contained "important indications on the very point in issue": see the speech of Lord Oliver in Pepper ~v~ Hart at page 620. He submitted (correctly, in my view) that the various Ministerial statements in question demonstrate that, in drafting Part IIA, the Government had expressly considered the issue of statutory successors to bodies such as British Coal and British Gas and intended that the responsibility (and thus the statutory liability) for contamination caused or knowingly permitted by statutory predecessors should be borne by their statutory successors.
63. It was Mr Pleming's submission that the only way of giving effect to that intention is that the term "person" should be construed to include not just the original polluter but also its statutory successors, where there is a regime in place to ensure legal continuity such as the Gas Acts. I agree with that submission. In my view, this is not a case of giving effect to the Minister's words in preference to the will of Parliament as expressed in the words of the statute (see Aston Cantlow and Wilmcote ~v~ Wallbank [2004] 1 AC 546, per Lord Nicholls at paragraph 37), but rather of elucidating how Parliament intended that the words enacted should operate in the factual context under consideration. I accept Mr Pleming's submission that the Ministerial statements are clear and resolve any ambiguity or uncertainty as to the position of successor companies. As Mr Pleming submitted, Parliament's clear intention was and is (as the EA contends) that, where the contamination in question has been caused or knowingly permitted by a body such as British Gas or British Coal (or, by a parity of reasoning, any of its statutory predecessors), the responsibility and thus the statutory liability for that pollution should pass to and be borne by that body's successors in title.
64. I also accept Mr Pleming's submission that this is the correct primary approach to the issues in this case, namely to ask what Parliament's intention was with regard to the responsibility (and thus the liability) for remediation works, as expressed in Part IIA of the EPA 1990, in a situation where successive statutory transfer schemes have substituted later bodies for the original polluter. As with any new statutory liability, the question of upon whom that liability is intended to fall is a matter for the intention of Parliament which enacted the relevant legislation.
65. I therefore also agree that the provisions of Part IIA of the EPA 1990 should be given a purposive construction. It is entirely understandable that Parliament's intention was that primary responsibility for the contamination should rest on the original polluter. In normal cases where the company responsible for the contamination has been dissolved and its assets sold or distributed to other persons, the original polluter cannot be "found". However, I accept that such is not the case where assets, rights and liabilities are transferred under a clear chain of statutory provisions which ensures continuity. Parliament's intention that responsibility for contamination should be borne by the original polluter and sparing the innocent owner and occupier the potentially highly onerous consequences of liability under Part IIA would clearly best be furthered by a perfectly permissible construction of the term "person" as a result of which the original polluter can be "found" in the form of its statutory successor.
66. As Mr Pleming observed in paragraph 66 of his written skeleton argument, the foregoing conclusions actually provide the answer to all Transco's grounds of review. I agree that, if I accept (as I do) that Parliament intended that section 78F(2) of the EPA 1990 should apply to and thus impose responsibility upon Transco in relation to land contaminated by BGC and/or its predecessors then that is the end of the matter and, as a result, Transco's challenge to the EA's decision is bound to fail. However, in all the circumstances of this case, I consider that it is both necessary and appropriate to go on and consider briefly the other two grounds upon which Transco rely.
67. Ground (b): The Absence of Liability Issue. In this second ground of challenge, Transco makes the point that there was no existing liability to be transferred under the Gas Acts 1948, 1972 or 1986 for the following two separate reasons: (i) that there is no evidence that the site was ever in such a condition as to constitute a statutory nuisance for which any of Transco's predecessors would have been liable and (ii) that even if the conditions for serving an abatement notice under the statutory nuisance provisions of section 93 of the Public Health Act 1936 had arisen, liability for the costs of abating any nuisance had not yet occurred (see paragraph 46 of Mr Gordon's written skeleton argument).
68. As to the first of those reasons, it should be noted that it is not accepted by the EA that the contamination at the Bawtry site would not have constituted a statutory nuisance as suggested by Transco (see, for example, the witness statement of Mr Stephen Wallace). It has always been the EA's position that the contamination would have constituted a statutory nuisance (see paragraph 71 of Mr Pleming's written skeleton argument). Quite rightly, it is common ground that the issue as to this aspect of the matter cannot be resolved in these proceedings: see paragraph 72 of Mr Pleming's written skeleton argument and paragraph 31 of Mr Wallace's witness statement.
69. In any event, I accept Mr Pleming's submission that the EA's case does not depend upon the regimes of statutory nuisance and Part IIA being entirely identical in scope, although there is inevitably a significant degree of overlap. However, it is clear from section 79(1A) of the EPA 1990, which disapplies statutory nuisance as a remedy where land is in a contaminated state, that Part IIA was intended to supersede statutory nuisance as a means of securing the remediation of contaminated land.
70. As Mr Pleming pointed out, the wording of the statutory nuisance provisions and Part IIA is different, both in the definition of "statutory nuisance" and "contaminated land" and in the terminology giving rise to primary liability. He therefore rightly accepted that the two regimes are capable of giving rise to different results on the facts of a specific case. He also submitted (correctly, in my view) that it would be a curious result if liability under Part IIA in the circumstances of this case could only follow from a retrospective consideration of whether or not there had been a statutory nuisance at some point in the past. I agree that this would be a wholly artificial and evidentially problematic exercise: see paragraph 74 of Mr Pleming's written skeleton argument.
71. I accept that the same point arises in respect of the second reason upon which Transco relies in support of this ground of challenge. It would be a very curious result if liability under Part IIA of the EPA 1990 depended on the essentially fortuitous circumstance of whether at some point in the past a Local Authority had identified contaminated land as a statutory nuisance and had served an abatement notice: see paragraph 75 of Mr Pleming's written skeleton argument.
72. I therefore accept Mr Pleming's submission that the real issue is not whether there was a liability for statutory nuisance in relation to the Bawtry site, which has been transmitted through the statutory scheme of the Gas Acts and which has, in some way, transmuted into a Part IIA liability. The issue is whether, by reason of the terms of Part IIA of the EPA 1990, Transco should bear the responsibility for the necessary remediation of the Bawtry site with regard to contamination that occurred in the past as the statutory successor to those bodies which, had they remained in existence, would have been within the Part IIA regime as Class A persons in respect of that contamination. I therefore agree with Mr Pleming that the more relevant issue is Transco's third ground of challenge, to which I now turn.
73. Ground (c): The Transfer of Liability Issue. In this third ground of challenge, Transco contends that, irrespective of any liability under the then applicable statutory regime, the Gas Acts could not operate so as to transfer a liability under Part IIA of the EPA 1990, because such a liability only arises under another statutory regime that was not then in existence and (because of the possibility of different legal outcomes under the two regimes) had no relevant analogue at the time of the relevant transfers effected by the Gas Acts: see Mr Gordon's written skeleton argument at paragraph 62.
74. Mr Pleming submitted (correctly, in my view) that, quite irrespective of what the position may or may not have been in terms of the prior statutory nuisance regime, the entry into force of Part IIA of the EPA 1990 meant that contaminated land would be identified and that, where identified, the person who caused or knowingly permitted the presence of the contaminants in, on or under the land in question would (subject to the specific provisions of the Act and the statutory guidance) be liable either to clean up the land or to pay for the cost of its clean up.
75. I accept Mr Pleming's further submission that it is self-evident that such a liability of its very nature is capable of relating to acts, omissions or activities undertaken before – potentially very long before – the Part IIA regime came into force. Such liability could relate to acts undertaken on land which the relevant person disposed of long before the advent of Part IIA. I accept the submission that, whilst the liability only develops into a legal obligation to carry out or pay for the remediation actions when a remediation notice has been served, the fact of having caused or knowingly permitted the presence of the (as yet undiscovered) contaminants is none the less a real liability, which has been incurred as the result of the acts, omissions or activities undertaken when the contaminating substances were brought on to the land or were knowingly permitted to remain there.
76. Mr Pleming submitted that such a liability (i.e. of the type indicated in the previous paragraph) is well within the ambit of the Gas Acts transfer provisions. In support of that submission, Mr Pleming referred to and relied upon the decision of Woolf J. (as he then was) in Walters ~v~ Babergh District Council (1983) 82 LGR 234 ("Walters").
77. Walters concerned an action for negligence and/or breach of statutory duty under the Public Health Act 1936. The plaintiff alleged that Melford Rural District Council ("Melford": the Defendant Council's predecessor) had failed to inspect with reasonable care the foundations of the house that he was building. However, by the time the plaintiff noticed the defects, Melford had ceased to exist as a result of local government reorganisation. The plaintiff therefore sued the defendant, Babergh District Council ("Babergh"), on the basis that "all property and liabilities vesting in or attaching to" Melford had been transferred to Babergh by virtue of section 16(3)(a) of the Local Authorities (England)(Property, etc.) Order 1973. The issue in the case was whether "liabilities" should be limited to crystallised liabilities or whether it should also include potential or contingent liabilities.
78. Woolf J. came to the conclusion that "liabilities" should be construed to include "contingent or potential liabilities" for the following reasons:

"The whole tenor of the order is designed to ensure that the reorganisation should not effect (sic) events which would otherwise have occurred further than is absolutely necessary because of that reorganisation. That the public should be able to look to the new authority precisely in respect of those matters which it could look to the old authority; that the public's position should be no better or no worse."

79. For his part, Mr Gordon referred to and relied upon the decision in the Court of Appeal in the case of Nash ~v~ Rochford Rural District Council (1917) 1 K.B. 384 ("Nash") and submitted that Walters was wrongly decided and/or can be distinguished: see paragraph 56 of Mr Gordon's written skeleton argument.
80. Nash concerned a claim against the local highway authority by someone who had suffered personal injury as a result of the defective construction of a drain on the highway. The plaintiff failed to prove that the defendant highway authority had been responsible for the construction of the drain in question. However, the plaintiff did satisfy the court of first instance that the drain had been constructed by the defendant's predecessors in title and that their liability passed to the defendant by virtue of section 25 of the Local Government Act 1894 (which transferred all rights and liabilities of the previous highway authorities).
81. On appeal, the Court of Appeal held that "liability" within the meaning of section 25 of the 1894 Act was limited to liabilities that have already accrued at the time of transfer, as opposed to "potential or contingent" liabilities. However, it is clear that the Court of Appeal also considered that the latter alternative would be inconsistent with the doctrine that highway authorities are not responsible for nonfeasance and that it was strongly influenced by this consideration: see, for example, the judgment of Warrington LJ at pages 397 to 398, where he said this:

"Would the provisions of the Act of 1894 render the district council liable for the consequences of the negligent act of the surveyor? To so hold would, I think, be inconsistent with the doctrine now well established that a highway authority is responsible for misfeasance only, and though of course it is competent to Parliament to abolish that doctrine altogether, or to make it inapplicable where the act of misfeasance is that of a preceding authority, I do not think one ought to hold that such a result has happened unless the words are clear. In the present case I cannot find either in s.25 or in the definition in s.100 any sufficient intention to pass on the responsibility for a wrongful act not their own and by itself affording no cause of action. The preceding authority was not in fact under any liability inasmuch as the damage essential to the existence of liability had not arisen."

See also the judgment of Scrutton LJ at pages 398, 400 and 401.

82. Mr Pleming stressed that Walters has been relied on and cited with approval several times in this jurisdiction and in others. He pointed out that it was relied on by the High Court in R ~v~ Newham London Borough Council (1994) R.A. 13, by the Northern Ireland Court of Appeal in Devine ~v~ Northern Ireland Housing Executive (1992) N.I. 74 ("Devine"), by the Australian High Court in Crimmins ~v~ Stevedoring Industry Finance Committee (1999) HCA 59 and by the New South Wales Supreme Court in Suvaal ~v~ The Nominal Defendant & Cessnick City Council (2000) NSWSC 10443 and Colombin ~v~ TransAdelaide & ors (2001) NSWDDT 13. Walters was also cited with approval by the Court of Appeal in R ~v~ Central Council for Nursing, Midwifery and Health Visiting, ex parte Bailey (1990) The Times 2^nd February 1990 and by the High Court in R ~v~ Secretary of State for Environment & Transport, ex parte Norfolk CC CO/1441/94, 22^nd January 1996 and in R ~v~ Secretary of State for Environment & Transport, ex parte East Riding (1999) EWHC Admin 751.
83. Mr Pleming emphasised that, by contrast, it appears that Nash has not been relied upon or applied by any court during the last 40 years. He also pointed out that, even before then, Nash has only ever been relied on in the context of claims against highway authorities, where the doctrine of immunity for nonfeasance applied: see Baxter ~v~ Stockton (1959) 1 Q.B. 441 and cf. Simon ~v~ Islington (1943) K.B. 188.
84. Mr Pleming therefore submitted that the application of Nash should be confined to cases against highway authorities, where those authorities are protected by the doctrine of immunity for nonfeasance, and that since the present case does not concern highway authorities Nash is distinguishable on that basis. I agree with that submission which, as it seems to me, is supported by the following observations of Hutton LJ in Devine (see page 92e):

" … in Nash's case the Court of Appeal was strongly influenced by the consideration that at that time a highway authority was not responsible for nonfeasance. Therefore the court considered that it was not the intention of Parliament to make a highway authority liable for an accident where that highway authority was not guilty of misfeasance but only of nonfeasance. Accordingly the court interpreted the word liabilities in such a way as not to make the rural district council responsible in damages for a danger which it did not itself create."

85. Accordingly, I accept Mr Pleming's submission that the decision in Nash does not prevent me from following and applying, as I do, the judgment of Woolf J. in Walters and I reject Mr Gordon's submissions to the contrary effect.
86. I also agree with Mr Pleming's further submission that the approach in Walters is much more consistent with the correct application of transfer provisions of the type found in the Gas Acts, when considered in relation to Part IIA of the EPA 1990. As Mr Pleming submitted, the logic of Walters suggests that potential liabilities should include potential liabilities under future legislation. If the EMGB or the earlier gas undertakers still existed today, they would be liable under Part IIA. If the legislative intent in transferring rights and liabilities under the Gas Acts 1972 and 1986 was, as Woolf J. stated to be the case in Walters, to ensure that there should be no effect on "events which would have otherwise occurred", this can only be achieved by construing the term "liabilities" to include "potential liabilities under both present and future legislation". Otherwise, as Mr Pleming pointed out (see paragraph 93 of his written skeleton argument), the transfers would have prevented "an event which would have otherwise occurred" – i.e. the remediation being paid for by a gas company that is responsible for the contamination in question, as opposed to the "innocent" individual current owners or occupiers of the Bawtry site or the government at the public expense.
87. In my judgment, the position is as suggested by Mr Pleming (see paragraph 94 of his written skeleton argument), namely that at the time of the relevant transfers the transferring company or body had undertaken activities which had resulted in a situation where contaminating substances were caused to be present on the site. That was in itself sufficient to give rise to liability on the part of that company or body under Part IIA, once those provisions were enacted and had come into force. As it seems to me, it is entirely consistent with the intention of Parliament in enacting the Gas Acts transfer provisions, that the transferee company (acquiring as it did, all the assets, rights and liabilities of the transferor) should step into the shoes of the transferor, not only in terms of current actual liabilities, but also in respect of liabilities that would come into being in the future in respect of the past activities of the transferor. In other words, the transferee would assume the exposure of the transferor (which would cease to exist under the scheme of the Gas Act in question) to future liability relating to past actions of the transferor. I agree with Mr Pleming that, for this purpose, it is immaterial whether such liability results from legislation already in force, or that which might be enacted in future. It is plainly within the power of a sovereign Parliament to enact that liability should be imposed for contaminated land, based on acts or omissions undertaken before the new legislation. I am therefore satisfied that such a liability was in the contemplation of Parliament when enacting the Gas Acts transfer provisions.
88. Accordingly, for all those reasons, Transco's third ground of challenge also fails.
89. Conclusion. As a result of the foregoing, I have come to the firm conclusion that this application must be and is hereby dismissed.