By: Moksha Grover
INTRODUCTION
In today’s world, where the environment is being exhausted day by day because of certain human activities which are directly or indirectly impacting the globe, environmental law enforcement agencies have been grappling with a million-dollar question: what responsibilities in connection with the environment and sustainability, if any, should the law assign to owners and to occupiers of land? This paper emphasizes the extent to which owners and occupiers of land should be held accountable for contamination of land, thereby, highlighting the importance of holding them responsible. This paper also addresses various questions that can arise in relation to and in contradiction to the writer’s idea and postulates the importance of re-defining the concept of property and ownership in the context of environmental concerns.
LIABILITIES AND PENALTIES
Every individual has a vital role to play in preserving the environment and guaranteeing its long-term viability. Land contamination is currently a big concern in several nations, including the United Kingdom and India. Contaminated lands pose unacceptable risks to human health, property and protected species. It can also result in considerable deflation of other natural resources such as water and air. This necessitates reducing land pollution and enacting environmental legislation, as well as certifying sustainability. However, the biggest question that arises is, who are the people who are liable to clean up the contaminated land and ensure their commitment to the prevention of land contamination?
The writer believes that the person who has first caused harm to the land should be penalised. The person should first be sent a remediation notice directing the person to pay a certain amount of charge and clean up the land within 10 days. Any non-compliance of notice and violation of legal rules committed by the person should be addressed through strict action. The following measures can be taken in case of violation.
- Imprisonment of up to 5 years and a fine of $1,50,000 or both
- In case of any other violation followed after the above clause or any sort of failure, an additional amount of $500 can be charged for each day.
However, what if such a person is nowhere to be found? Will then the owners or the occupiers of land be considered liable? Why do the owners have to be considered liable even when they have not caused any harm to the land? Let us know and look for the answers to all such questions.
If a person belonging to class A (class A includes people who have initially caused harm to the land and contaminated it) is nowhere to be found and no one can be located in his hierarchy then the owners or the occupiers of the land should be considered liable as the land belongs to them and they have the prime obligation of maintaining their land. Such a liability enforced upon them will make them warier of their land as well as the environment and will also alarm them about the increasing rates of pollution and the need for protection and conservation. Such liability, however, should be limited to the extent of only the cleaning up of the land and no fee should be charged from the owner in case the owner is proved to be innocent. The owner will clean up the land initially and if the person who initially caused the harm is found then the owner will be paid for the damages to his land by the person of class A.
The presence of malafide intention or actus reus is important to hold a person liable in the case of the owner.
QUESTIONS FOR AND AGAINST THE MOTION
While, to many, the writer's strategy can be a skyrocketing one, however many will oppose this idea and many will be sceptical of this strategy.
Let’s take up the following questions for more lucidity and transparency
- Is historical deflation included in the purge-up liability? If not, who will be responsible for the clean-up?
History contamination of land should be included in the clean-up liability. In such a case, the owner might transfer the liability or responsibility of the clean-up of land to the accused who might have committed the offence in the history or hierarchy.
- Is the contamination of land a criminal offence?
Contamination of land will not be considered a criminal offence only if the person liable cleans up the land within the time period of the notice and does not prohibit any law. In the pretext of owners, there shouldn’t be any sort of malafide intention or actus reus.
In case of non-compliance, the contamination of land will be treated as a criminal offence.
- Any defences?
A person has defences if he/she proves that they are innocent. A person can be proved innocent only if the person had taken precautionary measures to prevent the contamination and if he proves that the defilation of land is due to causes over which he had no control.
- Is it legally compulsory to perform investigations of defilation in relation to the sale of the property?
No, it is not legally necessary to perform investigations of defilation in
relation to the sale of the property. However, it is highly recommended.
In Western Australia, any transaction that will involve the sale, lease or mortgage of a site that has been classified as contaminated or possibly contaminated under the relevant legislation must include formal disclosure of the contamination at least 14 days before completion[1].
In Queensland, it was recently held that a vendor is required to give written notice to any buyer or lessee of land that has been recorded on the Contaminated Land Register[2].
- Can the party responsible for the clan up of the land transfer his liability to the purchaser of the land?
This is possible only through a contractual agreement. If the buyer agrees to take up the clean-up work of the contaminated land through a contract agreement only then can the responsibility be transferred? However, if the owner has caused harm to the land and if he is transferring his liability, he still ought to pay the fee charged for the offence.
- If the polluters are both the owner and the occupier (e.g., the landlord and a tenant), how is the liability apportioned between them?[3]
In such a case, the liability can be apportioned based on the degree of participation of the owner and the occupier in the polluter’s operation[4].
- How do determine whether the clean-up is required or not and the level of purge-up that is required?
Pesticides, petroleum products, radon, asbestos, lead, chromate
copper arsenate and creosote. If any of the following substances are found in the land exceeding the relevant limits, then this means that there is an unacceptable risk to human health and the land requires immediate clean-up. In such a case, the person who is liable to purge the contaminated land has to first notify the legal body/authority/governor in his area. Any development on the land which has not been fully contaminated and does not pose any risk to human health should also be notified to the governing body.
When it comes to the level of purge-up required, the level can differentiate in accordance with different lands. It depends on a variety of factors like the amount and the type of substances found in the land, whether such substances can be proved to be hazardous for humans and what’s the present use of land. The prime importance of cleaning up contaminated land is to protect humans and their health. During the process of clean-up, the liable person can take the help of the governor/ officer to ensure that the land is purged up to the mark.
WHAT IF THE OCCUPIERS OR THE OWNERS OF LAND ARE NOT ASSIGNED ANY RESPONSIBILITY?
If the holders of land are not assigned any responsibility then how will they realise their duties towards the environment? It’s a human’s virtue to make mistakes. However, if humans are not made to realise their mistakes how will they improve upon them? The prime objective of the laws relating to the liabilities of the possessors of land and its occupiers is to make these people realize their responsibilities towards the environment and the importance of sustainability. When coming to the practical approach, if the person who initially caused harm to the land is nowhere to be found, who will clean up the land? Will the land be left for showcasing its hazardous effects on humans and depleting the environment? Therefore, it is important to enforce and implement such laws for the welfare of the people as well as to conserve the environment.
THE IMPORTANCE OF RE-DEFINING THE CONCEPT OF PROPERTY AND OWNERSHIP IN THE CONTEXT OF ENVIRONMENTAL CONCERNS
Research shows that property rights can actually help in saving the environment. Garrett Hardin identified private property (or something formally like it) as a solution to the "tragedy of the commons," and suggested that this sort of approach has been under-utilized in modern environmental policy[5]. However, in many countries, absolute rights over the land have led to its ecological impoverishment, as land is cleared for economic benefits and put to “productive use”[6]. It is now being essential that new obligations be imposed on landowners, to ensure that environmental considerations are applied before the land is transformed for productive use[7]. The conventional idea of ownership of land and the landholder’s unlimited rights to do whatever he wants with his land must clearly lead to broader concepts of stewardship today. Supervision concepts like these are based on a deeper insight into the worth of land and its physical operations, which comes with new scientific knowledge.
In several common law countries, the Roman notion of public trust has been adopted, owing to the necessity to safeguard the environment. The generational trust was born out of the understanding that future generations may have locus standi to take action for environmental conservation. Both are encroachments on conventional concepts of "absolute" ownership, imposing, as they do, a new standard of "absolute" ownership.
CONCLUSION
To sum up, the writer would like to conclude that we human beings share the earth with billions and trillions of other species. Therefore, it gives us no right as human beings to sabotage the environment around us in any way either through direct or indirect actions. As a result, the law must take rigorous measures to safeguard the environment's safety and long-term viability for future generations. For the last few decades, land pollution has been a major issue that the world has been grappling with. The article discusses several countermeasures and penalties that may be used to stop individuals from defiling land and ensuring due diligence. This essay also emphasises the relevance of indicating such obligations and the value of implying such responsibilities.
[1] ‘Contaminated Land 2015’, Baker & McKenzie (2015) < https://www.bakermckenzie.com/-/media/files/insight/publications/2015/10/international-contaminated-land-guide/qrg_environmental_contaminatedlandguide_oct15.pdf?la=en> accessed 12th April,2022.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Megan McArdle, ‘How Property Rights Could Help Save the Environment’, The Atlantic (May 29, 2012) < https://www.theatlantic.com/business/archive/2012/05/how-property-rights-could-help-save-the-environment/257756/> accessed 12th April,2022.
[6] LYE Lin Heng, ‘Land Law And The Environment’, JournalsOnline (2010) < journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal-Special-Issue/e-Archive/ctl/eFirstSALPDFJournalView/mid/513/ArticleId/370/Citation/JournalsOnlinePDF> accessed 12th April,2022.
[7] Ibid.
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