Emma Tattersdill, solicitor – Bexley Beaumont, shares Legal Update
Legal disclaimer: This update is intended for general information purposes only. It does not constitute legal
advice nor is it a complete or authoritative statement of the law in England and Wales and should not be
treated as such. Whilst every effort is made to ensure that the information is correct, no liability is accepted for
any errors or omissions. Before acting on any of the information contained herein, expert advice should always
be sought.
LEGAL UPDATE
- R (Clear the Air in Havering) v London Borough of Havering v DMC Services (Essex) Ltd [2025]
EHWC 1492 (Admin): Smoke from fires can lead to a site being “contaminated land” under Part 2A of
the Environmental Protection Act 1990.
The facts:
On 17th June 2025, a group of residents succeeded in their challenge, by way of judicial review, to
the London Borough of Havering’s decision not to designate Arnolds Field, a former landfill site, as
contaminated land pursuant to Part 2A of the Environmental Protection Act 1990.
The site had been used for sand and gravel extraction and then as a landfill site. Planning permission
was later granted for “land raising to improve agricultural quality” and, subsequently, to change the
use from agriculture to woodland. Unlawful tipping took place between 2004 and 2016, resulting in
a planning Enforcement Notice (upheld on appeal but not complied with) and Environment Agency
prosecutions.
From at least 2018, there had been fires on the site producing smoke which affected nearby homes,
a school and a golf course. The evidence indicated that fires were occurring spontaneously in hot
weather (rather than through people setting material on fire) and monitoring had identified pockets
of methane that could potentially exacerbate or sustain fires within waste on the site.
Citing 64 fires in a 12-month period in 2022, the High Court observed that “there is no doubt that the
Site is a very significant problem for local residents, the [local authority] and other statutory
agencies.”
Legal background:
Part 2A defines contaminated land as “any land which appears to the local authority … to be in such
a condition, by reason of substances in, on or under the land, that:
Significant harm is being caused, or there is a significant possibility of such harm being
caused; or
Significant pollution of controlled waters is being caused, or there is a significant possibility
of such harm being caused”.
A site is not designated as contaminated land merely due to the presence of contaminants. There
must be a “significant contaminant linkage”. Put very briefly, this requires (i) a contaminant; (ii) a
receptor – something that could be adversely affected by that contaminant; and (iii) a pathway – a
route by which the receptor is or might be affected. All three must be present for a site to be
designated as contaminated.
The decision:
There is not a great deal of caselaw dealing with Part 2A and, here, the High Court provides useful
clarification as to the meaning of a “contaminant linkage”.
In determining whether to designate Arnolds Field as contaminated land, the local authority drew a
distinction between contaminants on the site and the impact of smoke coming from the site.
It had received advice that the primary way any risk from contaminants on the site could be
managed would be to prevent access to the site “thereby breaking the source-pathway-receptor for
exposure to the contaminants on site”.
It concluded that, if smoke from the fires was causing impacts on human health, that should be dealt
with under the statutory nuisance regime (section 79 of the Environmental Protection Act 1990)
rather than under Part 2A. It served an Abatement Notice on the landowner to deal with the fires.
The classes of statutory nuisance under section 79 include “smoke emissions from premises so as to
be prejudicial to health or a nuisance” but section 79(1A) provides that “no matter shall constitute a
statutory nuisance to the extent that it consists of, or is caused by, land being in a contaminated
state”. The statute includes a definition of “land in a contaminated state”, which is close but not
identical to the definition of “contaminated land” under Part 2A.
The landowner appealed the abatement notice, which was subsequently withdrawn. Consequently,
the site was not being dealt with under either the statutory nuisance or contaminated land regimes.
The High Court found that (i) the Environmental Protection Act and statutory guidance do not make
clear that smoke from combustion should only be dealt with as a statutory nuisance; and (ii) smoke
can give rise to contaminated land.
The court explained that, when considering the contaminant linkage in such circumstances:
The contaminant is the material on the site
The pathway is combustion followed by airborne transmission of the particulates
The court also observed that the “contaminant” would not necessarily need to be harmful to human
health in an inert state – that is, in this case, before the material caught on fire. The court gave the
example of plastic bottles which, it said, are not in themselves harmful but if burnt in an unregulated
manner could lead to smoke which could cause harm to health.
Interestingly, without expanding further, the court also said that “The position might be different if
the fires were as a result of an intervening human action, but the evidence here is that these fires are
occurring spontaneously in hot weather”.
It follows that:
Smoke from fires can lead to a site being “contaminated land” under Part 2A of the
Environmental Protection Act 1990;
But, as always, cases will have to be considered on their facts – including, it would seem, the
specific circumstances that give rise, or are likely to give rise, to the fire/smoke; and
In some cases, it may still be appropriate to deal with the smoke as statutory nuisance.
A few other practical points to note from the judgement:
Statutory guidance provides that risk assessments should be considered “only in relation to
the current use of the land” and should disregard any receptors which are not likely to be
present given that current use. Current use is defined in the guidance to include the actual
current use, reasonably likely future uses that would not require new or amended planning
permission and actual or likely temporary uses “within the bounds of current planning
permission”.
Observing that the Part 2A regime is not concerned with whether the use of land is lawful,
the High Court held that an unlawful use (in this case, a use that was in breach of planning
permission) could nonetheless be considered a current use and should be taken into account
in the risk assessment. The court added “If a use was unlawful and was likely to imminently
cease, whether because the LA were taking action or because of police action, then that
would be relevant. But that is because it goes to the likelihood of the use continuing, not
because of the lawfulness or otherwise of the use”.
In practical terms, then, current or likely future uses should not be discounted from risk
assessments for the purposes of Part 2A simply because they are in breach of planning
control, or otherwise unlawful.
The court also concluded, in this case, that the local authority did not have sufficient data
and evidence upon which to base their assessment.
As the court observed, the statutory guidance provides that:
“3.4 Risk assessments should be based on information which is: (a) scientifically-based;
(b) authoritative; (c) relevant to the assessment of risks arising from the presence of
contaminants in soil; and (d) appropriate to inform regulatory decisions in
accordance with Part 2A and this Guidance.”
In this case, the local authority had recent (2023) monitoring data which, it said, did not
show any significant risk to human health from fires. The data did not, though, cover the
month of August, when most of the fires had occurred that year. There were also some
issues around monitoring locations.
The court found that “At the date the decision was made, i.e. April 2024, the [local authority]
did not have the necessary data upon which they could reach a conclusion in line with the
Guidance” and that, accordingly, the local authority’s decision had been made prematurely.
A salutary lesson, then, in ensuring the data is the right data.
A contaminated land assessment does not have to consider every possible health effect.
The statutory guidance makes a distinction between health effects such as cancer which
would always cause significant harm (listed at paragraph 4.5 of the guidance) and those that
may be considered to constitute significant harm (non-exhaustive list at paragraph 4.6 of the
guidance). For the latter, the High Court observed that it is for the local authority to decide
whether there is sufficient material for a particular effect to be taken into account in any
given case.
Finally, the case reminds us that the threshold for property damage to amount to significant
harm is that, by reason of a contaminant linkage, the building or any part of it becomes
incapable of use for the purpose for which it was intended. Part 2A is not intended to deal
with impacts on amenity, or property value. In this case, there was no evidence to suggest
that the nearby school or homes became incapable of use.
The court remitted the decision to the local authority, to be reconsidered “in the light of the proper
legal analysis and all the up to date data that has been collected”. - DEFRA Policy Paper on reforming waste carrier, broker and dealer regulation
On 22nd August 2025, DEFRA published a policy paper on reforming waste carrier, broker and dealer
regulation. It had consulted on proposed changes in 2022 and published its response in 2023.
Key changes include:
Change in terminology: Waste carriers, brokers and dealers become waste transporters
(those, including hauliers, who are instructed to move waste between locations without
input on the end destination and classification), waste controllers (those, including brokers,
dealers, consultants and waste sites, who buy or sell waste, organise its collection,
transportation or end destination, or arrange for its assessment, classification, recovery or
disposal – whether or not they take physical possession of the waste) and controllertransporters (those, such as skip companies, who act as controller but also transport the
waste).
A move from the existing system of registration to a requirement to hold an environmental
permit. There will be three types of permit: waste controller only, waste transporter only
and a combined waste controller-transport permit. As well as businesses needing a permit to
transport third party waste, in some cases they will need a permit to transport waste they
have produced themselves. The Environment Agency is to hold a further consultation on the
types of permit and permit conditions, but DEFRA says there will be 4 tiers to reflect
different levels of risk. There will also be some exemptions from the need for a permit –
some, but not all, of which will need to be registered.
Permit holders, and nominated individuals within the business, will be required to comply
with mandatory technical competence requirements.
The new system will not “go live” immediately, as regulations and relevant guidance will need to be
updated. Once it is implemented, though, those with an existing upper-tier registration will be
required to apply for the relevant permit when their registration is due for renewal. Those with an
existing lower tier-registration (where there is no requirement to renew) will be required to apply
for a permit or register an exemption, as appropriate, within 12 months of implementation.
These changes apply to England. DEFRA say they are working with the devolved administrations to
assess their options “to mitigate any risks arising from a differential approach across UK nations”. - Planning and Infrastructure Bill
My June 2025 update included a summary of the Planning and Infrastructure Bill. Part 1 of the Bill
deals with Nationally Significant Infrastructure Projects (NSIPs), electricity and transport
infrastructure. Part 2 deals with Planning including Environmental Delivery Plans and the Nature
Restoration Levy.
In July 2025, the government tabled a number of amendments to the Bill, which continues through
the legislative process and is currently at House of Lords Committee stage.
In the meantime, legal campaign group Wild Justice has applied for judicial review of the
government’s conclusion, stated on the face of the Bill, that it would “not have the effect of reducing
the level of environmental protection provided for by any existing environmental law”.
The Environment Act 2021 requires the relevant minister to make a statement to the effect that
either (i) in the minister’s view, the Bill will not have the effect of reducing the level of
environmental protection provided for by any existing environmental law or (ii) the minister is
unable to make that statement but the government nevertheless wishes the Bill to proceed.
Despite the recent amendments, the Office for Environmental Protection has said the Bill would still
“in some respects lower environmental protection on the face of the law”.
The High Court has listed a hearing for 4th November 2025, to determine whether Wild Justice
should have permission to proceed with its claim for judicial review.
NEWS FROM UKELA
UKELA has continued its usual programme of events and participation in relevant consultations.
Recent consultation responses which may be of interest (copies of which can be found on UKELA’s
website) are as follows:
Response to the Scottish Parliament (Social Justice and Social Security Committee)
consultation on the Wellbeing and Sustainable Development (Scotland) Bill.
Response to Defra consultation on BNG for nationally significant infrastructure projects.
Response to the Defra Consultation on Improving Implementation of BNG for Minor,
Medium & Brownfield Development.
Response to HM Treasury consultation on reform of Landfill Tax in England and Northern
Ireland.
Response to Department for Energy Security and Net Zero consultation on Voluntary Carbon
and Nature Markets.
Response, written and in person, to the Senedd Cymru | Welsh Parliament consultation on
the Environment (Principles, Governance and Biodiversity Targets) (Wales) Bill.
Upcoming events:
Introduction to wildlife law course
12–14 November 2025
This annual course, hosted by the Nature Conservation Group, will be held at the Nottingham
Offices of Browne Jacobson solicitors (in person, Nottingham).
Annual Garner Lecture 2025: The Baroness Young of Old Scone
25 November 2025, registration from 5.30pm, lecture at 6pm to 7pm, followed by drinks
and networking.
Join us for one of the highlights of the UKELA year. Our distinguished speaker is Baroness
Barbara Young (hybrid/London, live streaming from other cities tbc).
Junior UKELA Fireside Chat
1 December 2025, 5.45pm registration for a 6pm start to 7pm with drinks and networking
Come and share in our cosy chat with Landmark Chambers (in person / London).
Careers evening
4
th November 2025, 5pm to 6.30pm
A careers evening on training and working in environmental law. In person, in London.
More details and tickets for all events are available on UKELA’s website.