Further information on contaminated land.

Contaminated land is fast becoming an important environmental issue these days. 10 -15 years ago realistic concern was still in its infancy, and land investigations were often disregarded during the redevelopment of pre-used land. Not surprisingly this is coming back to haunt us. Currently we are still in a transitional period in which we see legislation and policy-making driving the issues, but still a certain lack of understanding regarding where it is heading. Planning authorities are often requiring contamination reports prior to issuing consent, yet there is still a great deal of variation in the depth to which such assessments are expected to go, and similarly in the rationale for undertaking certain aspects of such an investigation. Environmental searches as part of house purchasing are also open to a variation in interpretation often due to the lack of expertise by those conveying the transaction. Much of this leaves a great deal of confusion and uncertainty in this area.  The UK ’s contaminated land statutory regime was a long time coming but it is well placed to deal with a hidden legacy from many years of land abuse.

 

To date we have had no specific statutory control over the contamination of land although we have had limited control over some activities that have had the potential to contaminate land.

 

Our most effective points of control to date have been through:

 

 

The recent Contaminated Land Regulations have been implemented through s.57 of the Environment Act 1995 which has amended the Environmental Protection Act 1990 by adding Part IIa. The legislation recognises the fact that the local authorities have been most proactive to date in the assessing of land contamination, and therefore they have become the primary regulator in this area.

 

The main aims of Part IIa being: 

 

 

The definition of what is to be regarded as being contaminated land is found in s78A of the Environmental Protection Act 1990. Furthermore we also find definitions of ‘significant harm’ and ‘significant possibility’ of harm being caused. We also see that there is a risk-based approach to determining whether or not the land will be designation of land as being contaminated. In order to assess ‘risk’ we should use the ‘pathway linkage concept’. This involves the requirement of a source, pathway, and target.  Where:

 

So contaminated land will be defined as land where:

  ALL of these 3 elements must exist.

  The definition of ‘risk’ is shown to be dependent upon: 

All of which has been carefully and precisely outlined in the guidance.

 In effect there is a 2 step approach in the designating of land as being contaminated:

 (i).     The identification of a Contaminant, Pathway, and Receptor.

Where:

The Contaminant is a substance(s) on or under the land that has the potential to cause harm, or pollution to controlled waters.

The Pathway can be assumed. It does not necessarily have to be observed.

The Receptor can be a living organism, an ecosystem or a piece of property.

(ii).       The second step requires the existence of a ‘pollutant linkage’ which is resulting in or could potentially result in ‘significant harm’ or pollution.

This is referred to as a ‘significant pollution linkage’.

Only if a ‘significant pollution linkage’ exists, is the land to be regarded as contaminated. If the linkage is not regarded as being significant, then the land is not ‘contaminated land’ for the purposes of the Regulations, but land in a contaminated state.

Local authorities have been given the role of locating and investigating all the contaminated land within their area. The main objectives being:

 Part IIa now requires local authorities to produce contaminated land registers showing full details of land which has been investigated, and classed as ‘contaminated’ within their locality.

Note that this is not the first time we have attempted to introduce registers. They were to be originally implemented through s.143 of the Environmental Protection Act 1990. The concept behind these was sound but the practicality of it all was disastrous. The idea was that anyone considering buying land could look to see if it was on the register. Similarly anyone owning land contained within the register, would be spurred on to get it cleaned-up.

There were numerous working problems with this, namely: 

Basically it was felt that registers would do nothing positive for dealing with the problems of contamination, but just blight land.

From 1990 to 1994 there were 3 attempts at introducing them but without success. In each attempt the number of areas to be designated was lowered, but, by the end of it the registers were felt to be effectively meaningless. (They started by listing 42 types of activity but by the end there were just 6).

The current registers are now expected to be more useful due to the fact that they do not exist on their own but as an integral part of a much more proactive mechanism for dealing with contaminated land. Furthermore we now have a much better understanding of the issues and much better clean-up technology than before.

The enormity of the task that the local authorities face can be seen from the fact that it is estimated that there could be some 300,000 ha of ‘statutory’ contaminated land in the UK . This amounts to around 1.2% of the UK land area (EA 1999).

The Regs. also allows some sites to be designated as Special Sites.

Criteria for this is:

Hence the following types of sites will potentially be classed as ‘special’:

In order to undertake their obligation local authorities in the UK are having to assess around 300,000 sites across the Country.

The other main objective of the local authorities is to get contaminated sites remediated.

There are 2 main ways in which this objective can be satisfied:

Thus local authorities have taken on the responsibility of identifying the person(s) responsible for the contamination; hence apportion liability.

According to the statutory guidance those responsible for contamination are now known as ‘appropriate people’, and furthermore, 2 types are identified.

These are Class A people - the person or persons that directly caused the problem, and Class B people - the current landowner.

It should be noted that it some cases the landowner, even if he or she did not directly cause the contamination, can be classed as the Class A person, by implication of the fact that they knowingly purchased the land in a contaminated state. This stems from the fact that when you buy land you buy the liability with it…. (caveat emptor).

If there is more than one Class A person then the ‘most appropriate person’ will be sought. If there is no Class A person then the Class B person will be sought.

If no Class A or B exists the site will be designated as an orphan site and the responsibility of remediation falls to the local authority.

One other major concern here that is yet to be fully tested is whether or not this will now put liability on householders. The extent of this situation is yet to fully arise. Currently there are becoming more and more instances whereby house sales are collapsing through the realisation that there may be contamination on site, and more importantly through the general lack of understanding in this area.