The law on contaminated land

The following is a brief explanation of the law on contaminated land. Please also see:

Background

The Contaminated Land Regulations 2000 place a legal duty on the local authorities, such as North Devon Council, to identify any contaminated land in their areas, and bring about its remediation. The regulations give councils (and in some cases the Environment Agency ) powers to serve remediation notices requiring such remediation to be carried out.

NDC's Contaminated Land Strategy (pdf 255kb) covers implementation of the law.

Part IIA of the Environmental Protection Act 1990 (EPA) requires an overall risk-based approach to dealing with contaminated sites, which is consistent with the general good practice approach to managing land contamination. The regulatory regime set out in part IIA is based on the following activities:

Section 78A(2) of the act defines 'contaminated land' for the purpose of part IIA as:

'any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that -

(a) significant harm is being caused or there is a significant possibility of such harm being caused; or
(b) pollution of controlled waters is being, or is likely to be, caused.'

The basis of the definition is complex and incorporates the concept of risk assessment. This involves identification of contaminant source, pathway and receptor with the essential establishment of pollutant linkages by which the contaminant from the source can reach the receptor via the pathway with the possibility to cause significant harm or the pollution of controlled waters.

In addition to the primary legislation, the part IIA regime is implemented through regulations and through statutory guidance which covers:

The Contaminated Land Regulations 2000 set out further requirements, particularly in respect of:

The principal regulators for part IIA are the local authorities (district and unitary councils) whose role has been defined as follows:

The EA has a complementary regulatory role under the regime including:

Relationship between part IIA and other controls

Planning and development control – the contaminated land regime will not normally apply where land is being managed within the normal cycle of land redevelopment and regeneration, where planning and development control will continue to be the primary means of control.

Land contamination, or the possibility of it, is a material consideration for the purposes of town and country planning. Current planning control on contaminated land is set out in Planning policy guidance: Planning and pollution control (PPG 23). DETR is currently preparing further planning guidance on land contamination, which will amplify the guidance in PPG 23 and will explain the interface with the part IIA regime from a planning perspective. In the meantime, the guidance contained in PPG 23 remains valid, although it should be noted that reference to the term 'contaminated land' in PPG 23 should be interpreted in the general sense rather than according to the definition used for the purposes of the Part IIA regime.

In addition to the planning system, the Building Regulations 1991 may require measures to be taken to protect the fabric of new buildings, and their future occupants, from the effects of contamination. Approved document part C (Site preparation and resistance to moisture) gives guidance on these requirements.

In any case where new development is taking place, it will be the responsibility of the developer to carry out the necessary remediation. In most cases, the enforcement of any remediation requirements will be through planning conditions and building control, rather than through a remediation notice issued under part IIA.

In order to assist, primarily smaller, developers, the councils within Devon have produced a local planning guidance note ‘A Guide for Developers to the Assessment and Remediation of Land Affected by Contamination in Devon' (pdf 206kb) .

The Environmental Protection Act 1990 part III – Statutory nuisance provisions will no longer apply where the nuisance arises in relation to land in a ‘contaminated state’. However, nuisance provisions could still apply where land gives rise to a nuisance (such as an odour) that is an offence to human senses but which is not covered under the various categories of harm set out in the Contaminated land statutory guidance.

Integrated pollution control (IPC) and Pollution, prevention and control (PPC) – Part IIA will not apply where the Environment Agency powers under IPC provisions of EPA can be used to take action to remedy contamination resulting from the breach of a process authorisation. Similar arrangements will apply to processes authorised under PPC.

Waste management licensing (part II of EPA) – Part IIA will not normally apply where contamination has resulted from land subject to a waste management licence, although it may apply where adverse effects arise from causes other than a breach of licence conditions or from activities that are permitted under the licence. Licences are regulated and issued by the Environment Agency.

Water Resources Act 1991 gives the Environment Agency powers to take action to prevent or remedy the pollution of controlled waters. Decisions about the most appropriate regime in any particular case will be handled through consultation between the Council and the Environment Agency.

Principles of pollutant linkage and risk assessment

The definition of significant harm is based on the pollutant linkage being present. A pollutant linkage consists of three parts:

Receptors recognised as being potentially sensitive are:

1. Human beings
2. Ecological systems or living organisms forming part of a system within certain protected locations including:

3. Property in the form of buildings including:

4. Property in other forms:

5. Controlled waters: defined by reference to section 104 of the Water Resources Act 1991 : this embraces territorial and coastal waters, inland fresh waters, and ground waters.

If the three elements are present for the pollutant linkage, a risk assessment must be undertaken to determine the likelihood of significant harm being caused to one of the specified receptors. Having identified the pollutant linkage and undertaken a risk assessment that indicates that significant harm is being caused to a receptor, the land can then be determined as 'contaminated land'.