SINGAPORE Law and Practice Contributed by: Joseph Chun, Shook Lin & Bok LLP
these parties to remove and clean up the contamina- tion. Where more than one party has contributed to land contamination, tortious liability for the damage is joint and several amongst the contributors. In the case of JTC leases, tenants/lessees are required, under the terms of the tenancy/lease, to conduct environmental site assessments before transferring/ assigning, or subletting their tenancy or lease. Each of the tenant/lessee, assignee, or sublessee’s contribu- tion to the land contamination is documented and can prima facie be apportioned accordingly (see 12.1 Key The locus standi requirements for bringing proceed- ings by those affected by contamination against pol- luters/landowners/occupiers of land depend on the nature of the claim: • for a claim in private nuisance, the claimant must have a proprietary interest in the land affected by the nuisance; • for a claim in public nuisance, the claimant must not only be a member of the public or a large group of persons affected by the nuisance, but must also be an individual who has suffered a special and particular injury that goes beyond the harm done to the public; • for a claim in negligence, the claimant must be owed a duty of care by the defendant based on: (a) a factual foreseeability of the damage or injury suffered as a reasonably foreseeable conse- quence of the defendant’s “carelessness”; (b) a sufficient legal proximity between the de- fendant and the claimant (closeness or direct- ness in the relationship, eg, physical proximity, close legal or social relationship, directness of the causal link between defendant’s actions and harm to claimant, or voluntary assumption of responsibility to claimant by defendant); and (c) the absence of any countervailing public policy considerations that should negate this duty; Laws Governing Contaminated Land). 12.4 Proceedings Against Polluters • for a claim in trespass to land, the claimant must have an immediate possession of the affected land; and
• for a claim in contract, the defendant must be a party to the contract, and the claimant must also be a party to the contract or a third-party benefi- ciary of the contract intended by the parties to have rights of enforcement. 12.5 Investigating Environmental Accidents Investigations into land contamination cases are likely to be led by NEA under the EPMA, and can be broken down into various stages. Triggering Event • Contamination may be discovered via pollution complaints from the public, reports by the occupier (eg, EPMA, FSA), or inspections (EPMA), etc. Investigation • NEA or SCDF officers may conduct a preliminary assessment based on visual inspection for signs of contamination, collect information on activities/ operations on-site, and review site history/baseline studies. • Soil, groundwater, and surface water samples may be taken for laboratory analysis to identify pollut- ants and concentration levels. • Documents and records of inventory, storage, and waste disposal may be sought from the occupier/ operator, and employees and contractors of the occupier/operator may be interviewed. • Technical consultants may be engaged to conduct a contamination assessment and risk study. Determination of Responsibility • An assessment of whether the occupier/operator or other party has committed any offences (eg, under EPMA or FSA). Regulatory Directions and Enforcement Action • Consider criminal prosecution if offences have been committed. • Consider whether remediation orders and/or recov- ery of clean-up costs are required. • If risk to human health or risk of serious environ- mental pollution is determined to exist, regulators may issue stop work orders, and/or conduct emer- gency works or order clean-up of contamination.
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