Council had no Contaminated Land Register for 28 years meaning buyers of property couldn’t know if their land was contaminated.

On the 1st Nov 1990 the then Tory Government led by Margaret Thatcher brought in the Environmental Protection Act 1990. This piece of legislation made it clear that every local council such as ours – Folkestone & Hythe District Council – had to keep a contaminated land register under Part IIA of the Act.

In April 2000 the Contaminated Land (England) Regulations 2000 came into force. These regs imposed a duty on the Council to inspect land in its District for the purpose of identifying contaminated land and keep a public register as per schedule 3. So in effect the Council had to proactively look for contaminated land in our district.

However, according to documents put before the Audit & Governance Committee Report Number AuG/17/15 on the 7th March 2018, the Council had not set up a public register twenty eight years after it legally had to do so. The report produced by East Kent Audit Partnership (EKAP) states at Annex 1 Para 2.5.2:

• The Council needs to set up a public register for contaminated land and for environmental permitting in order to fully satisfy legislative requirements.

This means for twenty eight years – 1990 to 2018 – our council, led by the Lib Dems until 2003/4, then the Tories from 2004 onwards, ignored the law and did NOT set up a contaminated land register, nor proactively sought out contaminated land in the district.

Also the Tories failed to set up an Environmental Permitting Register, two years after the Environmental Permitting Regulations 2016 came into force. We wrote about this in mid March

From 2014 onwards, the responsibility for the Contaminated Land & Environmental Permit registers  belonged to the Solicitor to the Council  – Amandeep Khroud – it was here responsibility that the council complied with all its legal and statutory duties. She received £60,000 in 2015 which rose to £78,000 in 2018, yet failed to keep the Council compliant with the law.

The irony here is the Council between 2002 and 2016, produced three Contaminated Land Strategy documents, all three are reproduced below, for the sake of transparency:

2002 Contaminated Land Strategy

2011 Contaminated Land Strategy

2016 – 2021 Contaminated Land Strategy

In them they mention contaminated land sites across the district and the 2011 document mentions the words “public register” 8 times. At page 32 of the document it states:

5.5 The Public Register

• Under the regulations, the Council is required to maintain a Public Register. The register will be held by the Environmental Health team at the Council’s principal office at Folkestone. It will be electronic (using the GIS) and be accessible on request by members of the public during office hours, Monday to Friday.

In the 2016 document it mentions “public register” ten times. At Page 8 it states:

The Public Register

• The Council must maintain a public register containing certain information about the sites it has dealt with under the Part IIA regime. Sites are only included on the register once a declaration has been made.

But as we said there was no Contaminated Land register according to the Annex 1 Para 2.5.2 of the East Kent Audit Partnership, report given to the Audit & Governance Committee on March 7th 2018.

Then there is the Environment Permitting Register which we wrote about just last month.

On the 13th March we made it clear the council were breaking environmental law with regards to the Environmental Permitting (England and Wales) Regulations 2016.

In 2018 EKAP made it clear the Council were failing to fulfill it’s legal requirements and three years on, so have the Shepway Vox Team.

In fact the EKAP report goes onto say:

• Management need to review the contractual arrangements in place with a contractor appointed in 2004 to carry out the Council’s environmental permitting processes in order to ensure it satisfies Contract Standing Orders; and

• Procedures should be reviewed to capture more detail of the process.

To put that into English, what it means is, if the Council had complied with its own Contract Standing Orders/Procurement Regulations, it would NOT have been recorded as a finding in the report.

In short, the council could not produce any evidence regarding compliance with the CSOs/ procurement regs. Which is politely damning to put it mildly.

So before moving on, it’s important to remember  when purchasing a property/land, there are two parts to a local authority search – a LLC1 and a CON29. It is the CON 29 part which is important as it informs the buyer whether the house stands on contaminated land or in a Radon gas affected area for example.

And between 1990 and 2018, the council had NOT SET UP a contaminated land register. As such, it would have been impossible for the council to inform any buyer if the land/property – via a local authority search – if there house was situated on contaminated land.  This would appear to potentially make the council liable in law, as no buyer could know if there land/property was on contaminated land. 

Moving on,  given the land at the former Officer’s Mess Aerodrome Rd Hawkinge is contaminated with LETHAL levels of arsenic, other land around that site, could/might also be contimanated. But as there was no Contaminated Land Register between 1990 and 2018, so how could one know if the land your house sits on in the district is contaminated? It’s simple, the council couldn’t tell you as they had no Contaminated Land Register.

Of course, one can make a complaint to the council if you’ve purchased a home between 1990 and 2018 in the district and you can do it ⇒ here

Or even better still one can complain to the solicitor to the Council -Amandeep Khroud – who was responsible for ensuring that the Council complied with its legal and statutory obligations by contacting her on:

amandeep.khroud@folkestone-hythe.gov.uk

Finally, you can make a formal complaint to the Council’s Environmental Protection Team about the former Officer’s mess at Aerodrome Rd Hawkinge, for example. All reporters may expect:

• their complaint or enquiry to be logged and recorded

• to be contacted by an officer regarding their complaint or enquiry within 48 hours of receipt

• to be kept informed of progress towards resolution of the problem

• every effort will be made to resolve complaints or enquiries quickly and efficiently.

Any complainant must send:

• (i) Proof of a viable pollutant linkage before any formal determination as contaminated land is permissible, which might only be possible with detailed investigation

• (ii) Prior consultation with interested parties before determination as contaminated land

• (iii) A minimum of a three month period between determination and serving of a remediation notice.

• (iv) The requirement for the enforcing authority to make every effort to identify the original polluter of the land (or “Class A” person) The Regulations allow conditions (ii) and (iii) to be waived in extreme cases but not conditions (i) and (iv).

For the former Officer’s mess site Aerodrome Rd, Hawkinge, everything you need can be found ⇒ here.

The information, materials and opinions contained in this blogpost are for general information purposes only. They are not intended to constitute specific legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. The Shepway Vox Team does not accept any responsibility for any loss which may arise from reliance on information or materials published in this blogpost.

The Shepway Vox Team

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