Contaminated land regime

The guide will be published in instalments on the website. It is also available from ERIC in print format.

1 Background

Section 57 of the Environment Act 1995 (‘the Act’) introduced a new Part IIA of the Environmental Protection Act 1990. This attempted, for the first time, to define contaminated land, and to create specific tailormade powers to enforce remediation. But it is important to note that previous powers, although not widely used, have existed either under statutory nuisance controls nor under the Control of Pollution Act 1974. The new powers adopt a ‘suitable for use’ approach to clean-up, which require intervention only when necessary to control unacceptable risk to health or environment, reacting to pressure to bring brown land into productive use.

‘Suitable for use’ entails a site-by-site approach, bringing under the Contaminated Land Regime land that is considered to endanger human health or the environment, when taking into account the current use of the land or use for which planning permission has been granted, but not land considered contaminated for future unknown uses. The ‘suitable for use’ approach also determines the quality and quantity of remediation required once the land is found to be contaminated land or a special site.

Under the Act and in line with Statutory Guidance (‘the Guidance’), the new controls disapplied the statutory nuisance provisions of Part III of the EPA 1990, in so far as the nuisance emanates from contaminants in, on or under land as set out below. Note that this has left a gap in the available powers for clean-up. As is shown below, the clean-up powers under Part IIA of the 1990 Act by no means cover all land in a contaminated state, hence the creation of a potential regulatory gap – through the Government insist that this constitutes a misunderstanding of the framework under the Act.

Similarly, although the powers are said to complement the environmental permitting system, the guidance makes it clear that the powers ought not to be used to deal with breach of licence conditions in substitution for powers contained in Part II of the EPA 1990. Also, where power is available under s.27 of the EPA 1990 to remedy a breach of permitting controls, no remediation notice under Part IIA should be served.

Interestingly, the guidance suggests that, on the proposed redevelopment of the site, existing planning and building-control powers should primarily be used to deal with land contamination. This leaves the new powers to handle risks arising from current use only and, even here, the guidance suggests that local authorities encourage voluntary clean-up, rather than ‘by the imposition of remediation notices’.

In fact this is what has happened. On 17 February 2009 the Environment Agency published a report on progress in England and Wales on identifying and remediating contaminated land. The report concluded that the majority of contaminated land was dealt with through the planning system, with only 10 per cent being dealt with under the Contaminated Land Regime. By March 2007 local authorities had only inspected 10 per cent of their land for contaminated sites, at a cost of £30m. This inspection resulted in 781 sites being determined under Part IIA, 35 of which were classified as special sites. Data for March 2007 tells us that, so far, £25 m has been spent on remediation, with a total of £62m allocated to the remediation of currently determined sites.

The Contaminated Land (England) Regulations 2006 (the 2006 Regulations) and the Statutory Guidance, together with the provisions of the Act, contain the major duties under the regime. The Radioactive Contaminated Land (Enabling Powers) (England) Regulations 2005, the Radioactive Contaminated Land (Modification of Enactments) (England) Regulations 2006 and the Contaminated Land (England) Regulations 2006 introduced into the Contaminated Land Regime land contaminated by radioactivity.

2 Statutory duties

This complementing of the existing planning functions and statutory nuisance powers is reflected in the regulatory duties imposed by the Act. At local authority level, it is be the district councils or unitary authorities who are charged with a duty to cause their local areas to be inspected in order to identify contaminated land. The purpose of doing so is to determine (after consultation) any required remediation and to oversee the necessary work. All local authorities hold a register of contaminated land in their borough.

Though this activity is to be conducted by local authorities, the Environment Agency (EA) will take control of certain ‘special sites’. In addition, the EA provides site-specific guidance to local authorities and must maintain a register of special sites. The EA acts as a repository of specialist knowledge in relation to contaminated land, sponsoring technical research as a consultee to local authorities on matters of land contamination.

Broadly, responsibility for clean-up falls upon ‘appropriate persons’. Primarily, under the ‘polluter pays’ principle, this is the person who caused or knowingly permitted the presence of the contaminants (a Class A person). Where it is impossible to find a person to bear responsibility, then this may pass to the current owner or occupier of the land (a Class B person). The precise manner and form of this responsibility is, in large part, the subject of the statutory guidance. This guidance is crucial. Its description as ‘statutory guidance’ is intended to offer some flavour of its significance. It fleshes out much of the detail on what is thought of as contaminated land, how and by whom it should be remediated, and what local authorities can do to recover costs of enforced remediation.

3 Defining contaminated land

For land to be classed as contaminated there must be substances on, in or under the land that cause or threaten serious harm to health, or pollution of controlled waters. In terms of the threats of harm, there must be a significant possibility of significant harm being caused.

In 2006 the definition of contaminated land was expanded to include land contaminated by radioactive substances where harm is being caused or there is a significant possibility of harm being caused. Although the harm emanating from radioactivity does not have to be significant (unlike the possibility of harm) it does not include all harm but only harm to human health specifically resulting from lasting exposure to a radiological emergency or past practice or past work activity.

In making such determinations, local authorities must follow guidance as to what constitutes unacceptable risks in the context of the current use of the site and in the light of ‘suitable for use’ criteria. However, it is clear that an environmental risk will be present only if there exists a source (a pollutant), a receptor (a target that can be harmed) and a pathway (a means of exposing the target to the pollutant).

For land to be contaminated the pollution linkage (potential harm to a receptor by a source through a pathway) must exist. However, it is also necessary for all other requirements of the guidance to be met in relation to the harm or water pollution in question. In particular, it will be necessary to have regard to risk in terms of the probability or frequency of occurrence and the magnitude of any adverse consequences.

Whether and how the harm is to be considered ‘significant’ is a matter for guidance. The guidance chooses greatly to limit the types of harm that will be regarded as significant. In order for harm to be significant, it would have to have one of the following effects:

• serious injury, death, disease, genetic mutation, birth defects, cancer or impairment of reproductive functions and mental dysfunctions attributable to the effects of a pollutant on the body. All of these in humans (only);
• an irreversible or substantial adverse change in the functioning of any protected habitat;
• substantial damage to or structural failure of buildings;
• substantial loss in value of livestock, owned animals, wild animals subject to hunting or fishing, or of crops on account of death, disease or physical damage (NB: 20 per cent threshold).

The possibility of significant harm being sufficient to require intervention depends upon possibility itself being significant (ie: a significant possibility of significant harm being caused). Whether or not the possibility is itself significant will depend on a number of factors, including:

• the nature and degree of harm;
• the timescale over which it might occur; and
• the vulnerability of the receptors.

It is important to note that even a relatively low possibility of harm can be treated as significant, and thus provide the basis for intervention, where:

• the receptor is significant in size;
• the harm is likely to be irreversible; or
• even a single incident would create significant exposure.

In terms of harm attributable to radioactivity, harm is caused when lasting human exposure gives rise to doses that exceed one or more of the following:

• an effective dose of 3 millisieverts per annum;
• an equivalent dose to the lens of the eye of 15 millisieverts per annum; or
• an equivalent dose to the skin of 50 millisieverts per annum.

Guidance sets out two definitions of significant possibility of harm from land contaminated by radioactivity. First of all, where the potential annual effective dose is below or equal to 50 millisieverts per annum and the potential annual dose equivalents to the lens of the eye and to the skin are below or equal to 15 millisieverts and 50 millisieverts respectively, if having regard to any uncertainties, the potential annual effective dose from any lasting exposure multiplied by the probability of the dose being received is greater than 3 millisieverts.

The second test is where, even if the first test is not met, the authority considers that for that site there is a significant possibility of harm, having regard to factors such as the duration of exposure, the potential annual effective dose and probability of the dose.

As for pollution of controlled waters, the test is the same as for the primary offences under the Water Resources Act 1991, ie: the entry into water of poisonous, noxious or polluting matters, or solid waste matter. Because of the similarities to the Water Resources Act 1991, local authorities are instructed to consult the Agency to ensure consistency of approach, though again the Government are taking a relaxed view of any overlap. Note that in line with the use of the trigger taken from the 1991 Act of ‘causing or knowingly permitting’, liability for water pollution emanating from contaminated land will fall only upon Class A persons, and not on Class B persons doing no more than owning or occupying the land in question.

The second part of our guide to the Contaminated Land Regime will be published soon. If you are interested in receiving the full (referenced) printed guide at a cost of £50 + postage and packing, please email us.