Does the contaminated land regime impose stewardship obligations on owners of land?

Abstract

This thesis attempts to examine one element of land regulation, the regulation of contaminated land, to determine whether stewardship can, and does, form the basis of this regulation and what this can tell us about the place of stewardship as a legal principle. The thesis then examines the nature of stewardship, as both a legal principle and an ethical one, and its manifestations in law, in order to determine the shape of a regime based on stewardship. The second stage of the thesis is then to look at the contaminated land provisions to determine how the aim of improving the state of land for the future is reflected in the regime and where stewardship fits into this picture. The thesis does not deny that the regime has other aims and guiding principles, specifically the polluter pays principle, but it does deny that this is the only philosophy which motivated and colours the regime. In order to demonstrate this, the thesis makes a detailed discussion of the sorts of obligations and duties that come into play under the contaminated land provisions and the place of the owner of the land within this. It should become clear that the contaminated land provisions were implemented on the back of (amongst others) an aim of improving the state of land for future generations. This aim is at the very heart of stewardship, but the contaminated land regime does not perfectly mirror what we might expect from a regime based on principles of stewardship. This can be seen when the hallmarks of stewardship are compared to the reality of the contaminated land provisions. This lack of fit can however be explained, and does not mean that the argument presented here cannot be sustained. The reason, it is argued, is the content of the principles of stewardship themselves, and the difficulty of framing regulation on the back of these principles. Specifically uncertainty as to the future and the problem with regulation of decision-making processes pose problems for such regulation. As a result, even though there is this lack of fit, and to this extent the regime presents a compromise position, it is argued here that the contaminated land provisions are an example of land ownership regulation based on stewardship, and an often-overlooked example at that. As a result of this, the current interpretation and application of the regime, both in the courts and at local authority level, are mistaken in their reluctance to impose some form of liability onto owners of land where the owner did not cause or knowingly permit the contaminating substance to enter the land. The paper concludes by suggesting that an alteration to this interpretation, following recognition of the place of stewardship within the regime, would allow local authorities to carry out more remediation works and to recover the costs for doing so. This would mean that the regime would be better able to tackle the problem of historical contamination such that we can indeed pass land on in a better state than that in which we received it.

Date of Award	2011
Original language	English
Awarding Institution	University of Dundee
Supervisor	Colin Reid (Supervisor) & Gordon Cameron (Supervisor)