13 March 1998

Pollution – whats your duty?

In a society increasingly

aware of problems caused by

pollution, farmers would do

well to have a grasp of the

legal implications involved.

Neill Campbell of law firm,

Taylor Vinters advises

QUESTION I have recently expanded my livery yard operation and have all the necessary planning permissions. But my neighbours are now complaining about the smell and are threatening to report the matter to the local authority. If they do, where will I stand?

A Planning permission is not the catch-all you might think it is. In a similar case in 1994 (Wheeler and another v Saunders Ltd and others), it was held that even though new pig units had been erected in accordance with planning permission, that was no defence to a claim for damages for the nuisance created by the smell from the operations. Hopefully, there will be a way you can appease your neighbours by adapting your operations – and a conciliatory tack is advisable. If no agreement can be reached, it will be down to your neighbours to prove that you are causing a nuisance, in which case you may be forced to close the operation and/or damages may be awarded against you. This may prevent you continuing with your expansion project.

Q Surveys of some land I was planning to sell for development have revealed hard-core, containing asbestos waste. This was not disclosed during pre-contract enquiries when I bought the site three years ago. The cost of the site clean-up is estimated at £750,000 – who is liable?

A Under the new contaminated land legislation, responsibility for cleaning up a site such as yours may be imposed on the seller, or previous owners or occupiers. Given that you were not aware of the state of the land, the first in line would be either the person who caused the contamination or the last owner/occupier who did know about it. But if the relevant parties have, in the words of the legislation, "ceased to exist or cannot be found", the liability may ultimately come back to you.

In cases where a clean-up is not required under the law, but is necessary in order to redevelop the site, then as a matter of private law you will be left to bear the cost (whether it be the cost of the clean-up or selling the land at a price which takes the contamination into account), unless you can make a claim on the person who sold the site to you.

To do this, you would have to prove that, as a result of replies to pre-contract enquiries, you were misled as to the presence of waste or contamination, and that you relied on the misrepresentation.

Such cases illustrate the need for buyers to be extremely wary when purchasing land. Better to invest in thorough surveys at the outset, than to land yourself with a worthless asset and, potentially, a major liability.

Q I understand that pollution of a watercourse is a serious matter. But what if it happens accidentally – is that any defence?

A Obviously accidents do happen, but if they result from some kind of inadequacy on the part of the land owner, then the courts are unlikely to be swayed.

Two recent cases illustrate this. In one, an unknown person opened an unlocked tap on an oil tank and major pollution of a watercourse resulted. The owner was convicted under the Water Resources Act on the basis that the storage arrangements were clearly inadequate in terms of security, surveillance and bunding.

And in October last year, the owner of a farm milk bottling plant was sentenced to two months in prison following a similar pollution incident. In this case the oil tank tap had been opened by his young son. But the court still took a strong line because the owner had ignored previous warning relating to his failure to have a proper bund constructed.

Q What general precautions do you recommend farmers take to reduce the risk of flouting contamination and pollution laws?

A It is important that all farm workers and contractors are kept up to date with the regulations and conscientiously follow the rules on a day-to-day basis. As with areas such as health and safety, a "zero-tolerance" approach is the only answer, if standards are to be maintained.

Golden rules should include:

lAlways obey manufacturers instructions to the letter.

lFollow the MAFF codes – they should prevent you getting into trouble and will certainly help your case if you do.

lNever leave oil tank taps unlocked.

lNever bury farm waste without seeking appropriate advice first.

The above advice is given as a general guide only. For any particular case, specific advice should be sought. &#42

Farmyard smells are not without their potential legal problems.

Neil Campbell:"Farm workers and contractors should be kept up to date with regulations."