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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Circular Facilities (London) Ltd v Sevenoaks District Council [2005] EWHC 865 (Admin) (10 May 2005) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2005/865.html Cite as: [2005] EWHC 865 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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CIRCULAR FACILITIES (LONDON) LIMITED |
Appellant |
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- and - |
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SEVENOAKS DISTRICT COUNCIL |
Respondent |
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Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Meyric LEWIS (instructed by Sevenoaks District Council) for the Defendant
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Crown Copyright ©
Mr Justice NEWMAN :
"an appropriate person within the meaning of the 1990 Act by reason of [having caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land to which this Notice relates is contaminated land, to be in, on or under that land]…".
The Council had, at an earlier date, served a notice identifying the contaminated land and the Council had concluded that the contaminated land was in such a condition, "by reason of substances in, on or under the land", that there was an immediate danger of serious harm being caused.
"(2) 'Contaminated land' is any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that–
(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;
and, in determining whether any land appears to be such land, a local authority shall, subject to subsection (5) below, act in accordance with guidance issued by the Secretary of State in accordance with section 78YA below with respect to the manner in which that determination is to be made".
The Essential Facts
Soil Investigation Report
"black organic layer beneath this fill is believed to be the silt and vegetable matter in what was a waterlogged area prior to filling. There were indications that iris plants grew in the area prior to filling and it is said that there were also some poplar trees which were knocked down prior to filling. The clay stratum below the black organic layer appeared to be firm but friable".
So far as each trial pit was concerned, they were found to contain, in addition to the fill, black organic matter including branches, iris leaves and ashes and in one trial pit, trial pit 3, water entering excavation at this level and gases bubbling through it.
"… generally in accordance with our Drawing No. 78/844 and the soils information made available to us".
"I called on site to meet the architect but he was not there. A recall will be made in the afternoon".
The entry for 27th March 1980 p.m. is as follows:
"I met the architect on site and discussed the arrangements for the rainwater disposal. It was agreed to provide beech filled soakaways about 1 metre cube with a polythene and concrete top. If it is subsequently found they do not function properly consideration will need to be given to allow connection to the foul sewer".
The Case for the Council
"A person who has caused or knowingly permitted any substance ("substance A") to be in, on or under any land shall also be taken for the purposes of this section to have caused or knowingly permitted there to be in, on or under that land any substance which is there as a result of a chemical reaction or biological process affecting substance A."
The Hearing in the Magistrates' Court
"Sometime in 1978 I met Mr Scott who was in the process of purchasing the property from Mr Kinchin-Goldsmith. I agreed that the Company would assist him to purchase the site from Mr Kinchin-Goldsmith … with a view to the Company subsequently acquiring the site from Mr Scott who would continue to organise and supervise the entire project as I was fully employed managing a motor business 50 miles away in north west London". (paragraph 16).
"I was not aware at the time of the Company's purchase of the site in 1979 nor indeed until seeing the Weeks Report in 2003 that any infilling had taken place". (paragraph 19).
"I understood from Mr Scott that the nature of the ground would require the houses to be constructed on deep driven piles upon which concrete rafts would then be placed so as to provide strong foundations for the houses".
He then records that Mr Scott instructed a firm of builders who proved to be unsatisfactory which led Mr Ketteringham to instruct another firm to build the houses under the supervision of the architect, Mr Whitehead of HW Designs.
"… I was not even aware of the infilling. Neither was I aware of any Pit investigations. My only knowledge at the time would have been in respect of soil samples that were submitted to and presumably passed by the Kent County Council in or about February 1980".
Cross Examination of Mr Ketteringham
"It seems clear from the evidence that Mr Ketteringham was the "controlling mind" of Circular Facilities… He was either in an "informal" partnership with Mr Scott or he used Mr Scott as an agent of the company.
He relied on Mr Scott and Mr Whitehead but his company bought the land and developed the site for housing. A commercial venture upon which he hoped to make a profit.
The soil investigation Report of 7th July 1978 referred to the presence of "black organic matter" in the trial pits dug on the land and referred to "gas bubbling through water in trial Pit 3".
This report was available on the planning register and must have been available to Circular Facilities. I believe that Circular Facilities must have considered the Risks of investing in land for development which had consisted of old clay pits and in assessing the Risk the soil inspection Report must have been considered. The company, in my view, must have been aware of the organic material and the gas and ought to have been aware of the Risk posed by landfill sites such as this".
"Mr Scott was responsible for arranging development of the site and Mr Whitehead was the architect employed by Circular-Facilities …
He said that he relied on Mr Scott and that he did not know of the organic material which was revealed by the "test pit" results. Mr Scott got planning permission on behalf of Circular-Facilities to develop houses".
"The scheme of the Act is to make the developer of a site such as this responsible for the harm resulting from the contaminants on the site. Circular Facilities could have commissioned a report on the risk from the gas on the site and could have taken measures to remove the risk as Sevenoaks Council has now done.
I accept that the failure of Circular Facilities to deal with the escaped gas is the same as permitting its presence.
I find that Circular Facilities is a responsible person for the purposes of section 78F of the Act."
The Issues on the Appeal
(1) The validity of the Judge's finding that CFL knew of the presence of buried organic material or gases between 1979 and 1985.
(2) Whether, assuming that there was knowledge of the contents of the report, such knowledge was sufficient for CFL to be found to have knowingly permitted the substances to be in or on the land.
(3) Whether the Judge was right to conclude that the policy of the Act was to make developers liable.
"The Appellant "knowingly permitted" the "substance" (the organic material and gas) to be "in .. or under" the land at Well Close, The Appellant completed its purchase of the land at Well Close on 12 November 1979, see para 16 of Mr Ketteringham's evidence at page 78 of Bundle A. Contrary to what Mr Ketteringham asserts at para 19 of his evidence on page 79 of Bundle A, the Appellant knew of the presence of the organic material and the generation of gas, having submitted to the Council (or having had submitted on its behalf by Mr Scott, Mr Ketteringham's "agent" or "unofficial partner") the soil investigation report (dated 7 July 1978) on 28 March 1980, see date stamp at page 103 of Bundle A. The presence of "black organic matter" in the trial pits dug on the land is confirmed on pages 104 to 106 of Bundle A and the report refers to "gases bubbling through" water in Trial Pit 3 on page 105. The report dictated the use of piled foundations for the houses constructed by the Appellant on the land and those foundations were duly provided. It is implausible to suggest that Mr Ketteringham did not have personal knowledge of the contents of the report. In any event, it is clear that his relationship with his agent/partner Mr Scott was such as to fix him with knowledge of the contents of the report."
"… shall also be taken for the purposes of this section to have caused or knowingly permitted there to be in, on or under that land any substance which is there as a result of a chemical reaction or biological process affecting substance A".
In my judgment there is no basis for limiting the ambit of the section to exclude responsibility to those who do not know of the potentiality for the chemical reaction or biological process which can affect substance A. The knowledge of the substance is taken to be the knowledge of the substance generated by the process.