TIJDSCHRIFT VOOR MILIEUAANSPRAKELIJKHEID

(Environmental Liability Law Review), 2003, 3 (June), p. 63-70

F.C.S. Warendorf

Summary

Developments in the case law in respect of article 75, paragraph 3 of the Wet bodembescherming (Soil Protection Act)

The author reviews several developments in the case law in cases in which the State attempted to recover the cost of soil clean up from the owner of the cleaned up land.

By virtue of article 75, paragraph 3 of the Wet bodembescherming the State may recover such cost according to the law on unjustified enrichment from the person who is unjustifiedly enriched by the clean up. Article 21, paragraph 2 of the Interimwet bodemsanering (Interim Soil Clean up Act), which had been in force until 15 May 1994, provided that recovery of the cost from owners of land was possible "to the extent they are enriched by the clean up of such land". In 1988 the question arose whether the State could already institute an action for recovery based on unjustified enrichment when the enrichment still had to take place. The State had made a pre-judgment attachment on a site that would be cleaned up. The owner contended in interim injunction proceedings that, according to the text of article 21, paragraph 2 of the Interimwet bodemsanering, the enrichment must first have occurred before a claim for recovery of the cost of clean up could be made. However, the President of the District Court in The Hague held that the State already had the right to institute the proceedings as it could be safely assumed that the clean up and consequently also the enrichment would already have taken place at the time when judgment would be given. Although the President's judgment had proved the State's contention to be correct, an appropriate adjustment to the law was made: article 75, paragraph 3 of the Wet bodembescherming, which entered into force on 15 May 1994, now provides that the State may recover the cost from a person who will be unjustifiedly enriched as a result of the clean up.

In a case decided by the District Court at Zutphen, the State v Schotsman case, the wording "will be enriched" was used as regards the question when the prescription period for a claim based on article 75, paragraph 3 would commence. By virtue of article 310, paragraph 1 of Book 3 of the Civil Code there is a prescription period of five years from the time when the person who incurred a loss became aware of such loss and who was liable therefor. The Zutphen District Court held that the obligation to pay damages based on unjustified enrichment arises, in principle, at the time when a person will be enriched at the expense of another. The Court decided that the prescription period commenced at the time when the clean up in actual fact started. According to the Court the State could at that moment have been aware of the person who was liable. According to the author this decision is incorrect. The obligation to pay damages when a claim is based on unjustified enrichment should commence only once a party is financially enriched at the expense of the financial position of an other party. This appears from the parliamentary history of the statutory provisions in respect of unjustified enrichment in the Civil Code, see article 212 of Book 6 of the Civil Code. Payment of the claim may be demanded only when the enrichment took place. The prescription period for a claim commences as from the date following the date on which payment may be claimed. This also applies for claims based on unjustified enrichment. The Zutphen Court failed to take into account that the sole ground why the words “will be enriched” were laid down in article 75, paragraph 3 was to ensure that the State is entitled to institute the proceedings once it may be expected that payment of a claim could be demanded at the time when the judgment would be rendered. The author further draws attention to the practical consequences if the reasoning of the Court were to be accepted. The State would then need to keep track of all changes in title during the clean up in order to ensure that a prescription period would not apply in respect of any possible claims during or shortly after the clean up. Moreover, the State cannot always establish which person will be enriched by the clean up. Sometimes beneficial title is transferred prior to the clean up which then will only appear from an instrument executed after the clean up.

The author further reviews the date which must be maintained as the commencement date of the prescription period. The time at which the increase in value has occurred he regards as decisive. Mostly, the increase in value will occur only once the competent authority had determined, on the basis of an evaluation report, that the clean up was successful and whether any follow up obligations will still apply in respect of the site. In this connection reference is made to a decision of the District Court in Arnhem in the State v Groothuijse case where one of the issues was at which time the State was aware of the person who had caused the pollution. From a report made by an inspection bureau it appeared in this case that the pollution was probably caused by a firm established on the adjacent land. This report was made to the Province of Gelderland, the competent authority for clean upss which had given instructions for the inspection. The court held that any knowledge which was available to the Province had to be imputed to the State. Moreover, the Court held that the prescription period could have commenced when officials of the Province were present at the inspection or when they received interim oral or written reports. According to the author it is correct that presentation of the report to the Province is imputable to the State when it is so presented. However, he considers it to be out of bounds to impute to the State draft reports and information given to officials of the Province. For, the criterion "having become aware" in article 310, paragraph 1 of Book 3 of the Civil Code must be construed subjectively. Also the clean up report, the evaluation report, should be decisive, mutatis mutandis, when considering the question when the enrichment occurred and not the draft reports or the oral information given to officials of the Province.

The decision of the Netherlands Supreme Court in the case State v Daams of 15 March 2002 is also reviewed. As a result of this decision it is established that claims based on unjustified enrichment relating to clean ups executed prior to 1 January 1988 shall not be statute-barred on 1 January 1993. There was a danger that claims connected with environmental damage would be statute-barred on that date as a result of the entry into force of the five year prescription period in the New Civil Code (article 310, paragraph 1 of Book 3 Civil Code) instead of the previous thirty years prescription period. In the transitional provisions of the Act it was provided in time that there would be an extension of the date until 1 January 1997 for such claims. The Supreme Court decided that such an extension also applied to claims based on unjustified enrichment. As a result of this decision it is also established that persons involved in causing the pollution who did not act culpably may be unjustifiably enriched. The case related to a clean up in 1986 of contamination of land near a petrol station exploited by Daams until 1 August 1967. Daams contended not to have acted contrary to any statutory provisions or the standards of care that applied at that time. Daams also contended that he had acquired title to the site in 1949 without any aim of speculation and that in 1983 the provisions on unjustified enrichment in the Interimwet Bodemsanering were enacted to counteract speculation. According to Daams the enrichment that had occurred was not unjustified for these reasons. The Supreme Court held that the scope of the term "unjustified" according to Daams was too narrow. When construing article 75, paragraph 3 of the Wet bodembescherming, not only the wording and parliamentary history of this provision are of importance according to the Supreme Court but also the system of the soil clean up provisions embodied in 1994 in the Wet bodembescherming of which the said article forms part. According to the author this is an indication that the Supreme Court will not accept a contention that the paid purchase price must be deducted from any increase in value based on the presumption at the acquisition that recovery proceedings would only follow when there was speculation. By referring to the system for the soil clean up provisions embodied in 1994 in the Wet bodembescherming the Supreme Court has indicated that article 75, paragraph 3, insofar as this relates to the requirements for application, may be considered as a pendant of the clean up order included in the provisions for soil clean up. Also in the case of a clean up order the purchase price is irrelevant.

The decision of the Supreme Court of 13 September 2002 in the case State v Geveke is also discussed. This decision confirmed that article 75, paragraph 3 also applies to the beneficial owner who, according to the Supreme Court, will, generally, be fully entitled to any increase in the value resulting from a clean up.

Finally, an important decision of the Court of Appeal at Leeuwarden is reviewed, the decision of 29 May 2002 in the case State v Roman. The author deduces from this decision that the Court of Appeal in Leeuwarden no longer follows the view that the extent of the enrichment must consist of the difference between the historical purchase price and the post-clean up value. The Court of Appeal had so decided in 2001 in the well-known Tolsma-case, the first decision of a Court of Appeal in a case involving acquisition with the knowledge of the contamination. As a result of the decision in the case of the State v Roman it has become clear that also an acquisition after allocation on the division of joint property when a marriage contract is executed must be considered to be an acquisition and that a transferee who was or ought to have been aware of the contamination does not become a culpable owner only for one-half because of her already having owned one-half of the land on account of her marriage. In the case of State v Roman it was also confirmed that the criterion "knowledge of the contamination at the time of acquisition" does not require, aside from knowledge of the contamination, also knowledge that a clean up would be necessary. The author who represents the State in soil pollution cases points out that there are several cases pending on appeal at this time which deal with acquisition with knowledge and that it has to be awaited whether also the other Courts of Appeal will pursue the line in the Roman case.