The Big Question

Article Contaminated Land Loss Prevention by

Q&A:  Liabilities of The Qualified Person Arising from Definition of Waste:

Development Industry Code of Practice

Introduction
The Definition of Waste: Development Industry Code of Practice was published by CL:aire in 2008 (www.Claire.co.uk).  It was prepared by the development and remediation industry in consultation with the Environment Agency.  The Code of Practice (CoP) was designed to allow the development industry to demonstrate that wastes (derived from/ during remediation etc) have been “fully recovered” and therefore are no longer “waste”.  This self regulation relies upon the professional integrity of all of the parties involved, but particularly upon the “Qualified Person” – a term which the CoP introduces.  The CoP requires the Qualified Person to sign off a Declaration that all of the appropriate lines of evidence are in place to demonstrate compliance with / adherence to the Code.
Concerns have been raised by some in the industry that the Qualified Person could face potential liabilities in signing off the Declaration which are not compensated by the level of fee – for example, in the event of subsequent activities by third parties.

The response from the Loss Prevention Group’s legal advisor (Zita Mansi) to two of the most commonly raised concerns is set out below.

The Qualified Person’s Declaration

The CoP sets out an auditable system to demonstrate that the CoP has been adhered to on a site by site basis.  This system includes a Declaration by a Qualified Person (“QP”).  The Environment Agency (“EA”) will audit a certain number of Declarations at random, to check that the CoP is not being abused.

The QP’s Declaration (which is set out in full at Appendix 6 of the CoP) includes confirmation:

  1. That he/she has reviewed the relevant documents set out in the checklist (these include the Materials Management Plan (“MMP”), the Risk Assessment and the Remediation Strategy/Design Statement);
  2. The MMP contains all the information required by Appendix 4 of the CoP;
  3. The Risk Assessment concludes that the objectives of preventing harm to human health and pollution of the environment will be met if materials are used in the proposed manner; and
  4. the relevant regulatory bodies have not objected to the proposed development on the basis that the use of any material is likely to cause harm.

The Declaration is addressed to the person commissioning the works (likely to be the person employing the QP) but must be sent to the EA.

Q&A

Questions have been raised by an AGS member regarding the potential liabilities of the QP to his/her client and/or to the EA in the following scenarios:

  1. The QP provides a Declaration and subsequently the MMP is not followed by those carrying out the works.
    Paragraph 3.17 provides that the responsibility of the QP is limited to review of the documentation detailed in the Declaration.  Responsibility for carrying out the development in an appropriate manner, and the duties pursuant to waste legislation, remain with the person commissioning the excavation works and those executing the works.

    After providing his/her Declaration, the QP has no further involvement in the project and has no inspection, monitoring or auditing duties.  Hence he/she has no control over whether or not the MMP is adhered to and cannot be held responsible for any adverse consequences of the works deviating from it.

    Paragraph 3.12 of the CoP allows deviations from the original MMP provided they are recorded and subsequently detailed in the Verification Report.  The QP has no involvement in or responsibility for the Verification Report.

  2. The QP provides a Declaration and subsequently the EA audits the project and decides that the MMP and Risk Assessment are inadequate or inappropriate because, for example, the materials were not suitable for re-use, were used or planned to be used in excessive quantities, or were likely to cause harm.
    Paragraphs 3.17 and 3.18 of the CoP suggest that the QP’s role is limited to “review” of the documentation detailed in the Declaration.  Paragraph 3.18 of the CoP states that the QP is not required to re-work or check the Risk Assessment or Remediation Strategy/Design Statement.  The precise nature of the QP’s obligations when “reviewing” the documentation is not entirely clear.  The wording of the Declaration (as set out above) is key.  The QP confirms that the MMP contains all the information required by Appendix 4 of the CoP but this is not the same as confirming that the information is correct.  In addition, the Declaration includes a statement that the QP has advised the person commissioning the works that if materials are not used in accordance with the MMP or Risk Assessment or if it is discovered that materials were not suitable for use, were used in excessive quantity or in such a manner as to harm human health or pollute the environment, the EA may conclude that those materials were discarded and were waste.  This appears to place responsibility for these matters upon the person commissioning the works, which is consistent with the wording of the CoP.

    In any event, the question of whether a particular material is waste is ultimately a decision for the Courts and the fact that the EA do not agree with the conclusions of the Risk Assessment and MMP does not necessarily mean that those documents have been negligently prepared or that the QP was negligent for providing the Declaration.  (Paragraph 3.17 of the CoP provides that a QP who “recklessly” or “falsely” completes a Declaration may be subject to prosecution under waste legislation, but this requires more than mere negligence on the part of the QP.)

    If, for any reason, the QP is held to have been negligent, he may be liable to his client for any losses that result from the client’s reliance on the Declaration.  The extent of the QP’s liability to the client will ultimately be governed by the terms of his/her appointment.  The QP should therefore ensure that none of the terms of the appointment place him/her under any higher obligation than to use reasonable skill and care in carrying out his/her duties under the CoP (he/she should not, for example, warrant that the Declaration will satisfy the EA) and it should be made clear in the appointment that he/she is not responsible for the information provided to him/her or liable for defects in it.