Contaminated Land &
Water Working Group
Part IIA of the Environmental Protection Act 1990
What is the Contaminated Land Regime?
The contaminated land regime is made up of a series of legislation and
guidance, the most important of which is Part IIA of the Environmental
Protection Act 1990. This legislation defines,
- What statutory contaminated land is
- Who is responsible for dealing with statutory contaminated land
- How contaminated land should be identified
- How statutory contaminated land should be cleaned up.
The contaminated land regime is one of a number of pieces of
legislation that are designed to deal with contaminated land issues and
protect people and the environment.
The contaminated land regime is used where another appropriate regime
to deal with contaminated land does not exist, for example the Planning
regime.
What is statutory contaminated land?
Part IIA of the Environmental Protection Act 1990 provides the
following statutory definition of contaminated land.
"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 ~
- significant harm is being caused or there is a significant
possibility of such harm being caused; or
- pollution of controlled waters is being, or is likely to be caused;…"
With respect to controlled waters, the Water Act 2003 (Chapter 37,
Section 86) will amended the second limb of the definition so that it
applies only where:
"significant pollution of controlled waters is being
caused, or there is a significant possibility of such pollution
being caused"
Guidance (Circular 02/2000 - Contaminated Land) produced by the
former Department of Environment defines the types of harm to be addressed
under the contaminated land regime.
In the definition of contaminated land it must be shown that harm
to a receptor or the pollution of controlled waters is being
caused, or is likely to be caused. This is achieved by
demonstrating that there is a source of contamination (such as metals,
fuel, gas, etc.) in the ground that is able to reach and harm a receptor
(defined within the legislation as people, controlled waters, property and
environmental designations). This chain of events is known as a pollutant
linkage.
Who is responsible for dealing with statutory contaminated land?
Under the contaminated land regime Local Authorities are primarily
responsible for identifying and ensuring that contaminated land is dealt
with. This includes:
- Identifying which areas of land are potentially contaminated
- Investigating areas of potentially contaminated land
- Deciding from an investigation whether land is contaminated
- Ensuring that contaminated land is dealt with properly.
The Environment Agency is responsible for dealing with land that
is polluting or has the potential to pollute controlled waters, or for
certain types of land use, for example former Ministry of Defence land. In
such cases they will usually investigate potential contaminated land on a
local authority's behalf. The Environment Agency is a government
organisation that deals with and regulates many environmental issues in
England.
Sites dealt with by the Environment Agency are called 'special sites'.
This is not because they are more or less significant than sites dealt
with by the local authority, but simply because the Environment Agency
have the regulatory responsibility for dealing with them.
How is contaminated land identified?
Local authorities are responsible for identifying the presence of
contaminated land within their own areas. To achieve this, every authority
in the Country with responsibilities under the contaminated land regime
has produced a strategy of how they intend to identify and deal with
contaminated land.
Within the Greater Manchester area, councils are producing lists of
potentially contaminated land in their Boroughs using historical mapping
to identify where historical industrial activity (or other potentially
contaminating uses) took place. Typically where a former industry (or
other potentially contaminating uses) now coincides with a sensitive use
such as housing, schools, open space, rivers, and environmental
designations, the Council will add the site to its list of potentially
contaminated land.
However, just because a site is on a Council's list of potentially
contaminated land does not mean that it is Statutory Contaminated Land.
Contamination issues may have been dealt with through another regime and
if investigation does become necessary, it may be shown that the land is
appropriate for its current use and does not have a problem despite the
previous history of the site.
How is statutory contaminated land cleaned up?
Once an area of land has been identified as being contaminated, or
potentially contaminated, the enforcing authority (i.e. the Council or
Environment Agency for 'special sites') must decide who is responsible for
cleaning up the contaminated land. Once the responsible parties have been
identified, the enforcing authority must ensure that the contaminated land
is cleaned up.
Wherever possible the Council will hope to achieve the clean up of
statutorily contaminated land through another regime, or by voluntary
clean up by the person who is found to be responsible for the land.
If an area of contaminated land is not appropriately dealt with, the
enforcing authority has powers to serve a legal notice to ensure that the
contaminated land is cleaned up. Where necessary the enforcing authority
can do the work itself, reclaiming costs from the responsible party/person
at a later date. If an area of land poses a significant and immediate
risk, the enforcing authority has powers to take emergency action.
Progress with strategies
The progress made with contaminated land strategies varies between
authorities and depends on available resources and how these have been
used. For example, many authorities have concentrated on making important
changes to the way they deal with contaminated land through the planning
regime as well as developing their contaminated land strategies.
Many authorities are beginning the process by dealing with sites that
they already know are likely to constitute contaminated land, as well as
creating a prioritised list of sites where future investigation will be
focused.
Generally, most authorities will only begin investigating sites in
greater detail once they have completed a prioritised list of potentially
contaminated land.
If you have any concerns about land that you think might be
contaminated, or you wish to discuss any issues relating to the
contaminated land regime, you should contact the contaminated land officer
for your area.
You may also wish to check other parts of this website for guidance on
other contamination issues such as landfill sites and buying and selling
property. Individual authorities may also have information specific to
their borough on their own web sites.
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