The revised contaminated land policy

Nina Hurhangee is an environmental consultant at Groundsure. In this blog, Nina discusses contaminated land policy. If you have any questions or comments about this blog, you can contact the residential consultancy team at [email protected].

Britain has a long-standing legacy of contaminated land, much of it stemming from the industrial revolution of the 18th century. While industries such as coal, gas, rail, electricity and steel propelled the country to the forefront of the industrial revolution, harmful deposits were often left on the land (Eichler, 2016; Garbett and Masons, 2007). These deposits can present a potential risk to users of the land or to the environment through the inhalation of dust or gases, food grown on the land or contact with soil (Science Community Unit, 2013).

What is it and what does it do?

While the government’s approach has been that contaminated land should be dealt with through the planning regime, sites which are unlikely to be redeveloped or have already been redeveloped (prior to 2000 when the contaminated land regime came into force) are dealt with through Part 2A of the Environmental Protection Act 1990 [EPA]. Part 2A objectives are to identify and remove unacceptable risks to human health and the environment and ensure contaminated land is made suitable for its current use (Ogley and Kitson, 2012). For a risk to exist under Part 2A, there needs to be one or more ‘contaminant-pathway-receptor’ linkages. ‘Normal’ levels of contaminants are not determined unless the underlying geology raises a risk to health or the environment (Carrington, 2012; Nathanail, 2009).

Who’s in charge here and who’s to blame?

Part 2A imposes a duty on local authorities, the primary enforcers of this regime, to inspect, identify and record on a register where contaminated land exists within their area. Once identified, the authority has a duty to serve a remediation notice requiring a clean-up. Liability for remediation rests in the first instance with those who caused or knowingly permitted the contaminants to be present on the land (section 78F(2) and (3), Environment Protection Act, 1990). If no polluter can be found, the local authority can look to the owner and occupier of the land as an appropriate person to receive the remediation notice or pay for clean-up (3.1) (section 78F(4), Environment Protection Act, 1990). While the existence of this legislation has prompted a number of companies with contaminated land on site to take voluntary action, costly remediation measures can reduce the incentive to take action (Feijao and PLC Environment, 2006).

Why does it concern me?

Part 2A is an important weapon in a regulator’s armoury that does still get used. It serves as a reminder that the sites of a property’s current and former operations could be a source of liability under Part 2A, that buyers should always be mindful of the liability that they might be incurring when purchasing a property and that sellers need to remember that out of sight is not out of mind (Thomson, 2010). There can still be liability in the future for the seller unless steps are taken to secure proper protection.

Okay level with me, how bad is it?

The Environmental Audit Committee estimate around 300,000 hectares of UK soil is contaminated with toxic substances (Eichler, 2016). Between 2000 and 2013, around 11,000 sites were the subject of detailed inspections, but revisions in the Statutory Guidance (in which local authorities are no longer required to consult the Environment Agency), and a withdrawal of the Contamination Land Capital Projects Funding Programme from DEFRA, has put pressure on councils to identify contaminated land and greatly reduced the number of sites being investigated (Eichler, 2016; Thomson and Laborde, 2016). 274 contaminated land determinations (gathered in-house through Groundsure’s GIS team and updated regularly) have been documented in the UK highlighting the potential risks to human health from metals/metalloids, hydrocarbons and other substances in the soil. Yet these figures are unlikely to represent the true position across England as the risk tends to be highly specific and each site needs to be investigated and assessed separately. With funding severely curtailed since 2013, the inspection process of determining whether a site is contaminated has dramatically decreased. For those that have been determined, it falls on to the local authority and Environment Agency to pursue the main polluters followed by the current owners (Carriage and Ennis, 2007; Thomson and Laborde, 2016), but for the most part, this responsibility falls to either the local authority or the Environment Agency.

Fig. 1 Groundsure’s contaminated land stats (last updated January 2018)

Is this really the best method?

Comparing various methods used to deal with contaminated land in Europe has proved difficult as there are substantial differences in the underlying site definition and interpretations used in EU countries and currently no standardized legal framework established at a European Union level. Rather, most European countries have a national (and in some cases regional) legislation to deal with local soil contamination. A report by the European Environment Agency (EEA) showed local soil contamination was estimated at nearly 3 million sites across the EU, with approximately 80,000 sites remediated over the last 30 years (a rate of approximately 2% of sites remediated over 30 years) (European Environment Agency, 2014). Various methodologies are employed to deal with contaminated land but cleaning up contaminated sites is a costly exercise, with average expenditure remaining relatively small (on average 2% of the estimated costs provided for the overall management of contaminated sites) (European Environment Agency, 2014). While there is no ‘best method’, the contaminated land sector in the UK is constantly looking at ways to improve remediation practices and employ different methods that do not dispose of large amounts of contaminated soil in landfills by looking for ways to reuse material wherever possible, thus protecting soil which is after all, a finite resource (DEFRA, 2010, SuRF-UK, 2010).

Groundsure Avista, the most comprehensive environmental search report available, assesses the risk of land contamination using sources that give details of historical and current use of the land where the property is situated. These uses include the location of landfill and waste sites, petrol stations, and any industrial sites or processes that may have taken place, or be licensed to take place on or near the property. Visit www.groundsure.com/avista to find out more.

References

1. Carriage, R. and Ennis, O. (2007) Environmental Protection Act 1990 Part 2A – Where does the National Grid Gas case leave practitioners? Journal of Planning and Environmental Law 149

2. Carrington, M (2012) Part 2A – the Implications of the Revised Statutory Guidance. Available here https://goo.gl/uJh7cW%20Accessed%2014/08/2017

3. DEFRA (2010) SP1001 Contaminated Land Remediation. Available here https://goo.gl/gNHM36

4. Eichler, W. Cuts put public at risk from contaminated soil (2016) Available here https://goo.gl/4pFwdR Accessed 14/08/2017

5. Environmental Protection Act (1990) Available here https://goo.gl/0lCPU1%20Accessed%2014/08/2017

6. European Environment Agency (2014) Progress in management of contaminated sites. Denmark. Available here https://www.eea.europa.eu/themes/soil/soil-threats

7. Feijao, S and PLC Environment (2006) Contaminated land regime: mixed messages. Thomas Reuters Practical Law. Available here https://goo.gl/kC4C9o Accessed 14/08/2017

8. Garbett, J. and Masons, P. (2007) Contaminated land: the polluter pays, but should Sid? Thomas Reuters Practical Law. Available at https://goo.gl/4dhNPb Accessed 14/08/2017

9. Nathanail, C. P. (2009) The role of engineering geology in risk-based land contamination management for tomorrow’s cities. Geological Society, London, Engineering Geology Special Publications, 22, 149-158.

10. Ogley, A. and Kitson, J. (2012) Where next for the contaminated land regime? Available at https://goo.gl/6dmKd8 Accessed 14/08/2017

11. Science Communication Unit. Science for Environment Policy In-depth Report: Soil Contamination: Impacts on Human Health. (2013) University of the West of England, Bristol Report produced for the European Commission DG Environment, September 2013. Available at https://goo.gl/zqkNSR%20Accessed%2014/08/2017

12. SuRF-UK, 2010. A Framework for Assessing the Sustainability of Soil and Groundwater Remediation. Available at www.claire.co.uk/surfuk

13. Thomson, A. Contaminated land: judicial review launched after Landmark appeal is dismissed (2010) Barlow Lyde & Gilbert LLP Available at https://goo.gl/S5XFtL Accessed 14/08/2017

14. Thomson, A. and Laborde, I. (2016) Spotlight falls on contaminated land liabilities. Available at https://goo.gl/uB2MBs Accessed 14/08/2017

15. Valerie Fogleman, (2014) The contaminated land regime: time for a regime that is fit for purpose (Part 2)”, International Journal of Law in the Built Environment, Vol. 6 Issue: 1/2, pp.129-151. Available at https://goo.gl/jEm12s Accessed 14/08/2017

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