Where next for the contaminated land regime?

Waste landfill iStock 000005619965XSmall 146 x 219Local authorities and the development industry need to be aware of significant changes that have been made to the contaminated land regime, write Alison Ogley and Josh Kitson.

In April 2012 the Department for Environment, Food and Rural Affairs (Defra) issued new statutory guidance on contaminated land. This is the first major change to the contaminated land regime since its introduction in 2000. Defra reviewed the regime in its entirety and found that the primary legislation, Part 2A of the Environment Protection Act 1990 (EPA 1990), remained fit for purpose.

However, Defra decided that new statutory guidance was required. Defra has introduced the Environmental Protection Act 1990: Part 2A Contaminated Land Statutory Guidance (the New Guidance), which took effect on 6 April 2012. This replaced the previous statutory and non-statutory guidance (together referred to as the Previous Guidance).

Legislative change

The main outcome of the review is the New Guidance. However, Defra also took the opportunity to amend the test for 'contaminated land' which relates to water pollution. The Water Act 2003 (Commencement No. 11) Order 2012 came into force on 6 April 2012. This means that pollution of controlled waters must now be "significant" to meet the definition of contaminated land. This amendment means that the tests for contaminated land and water are consistent and should provide greater clarity.

Introduction of the new guidance

The Previous Guidance was contained in the annexes to the Defra Cicular 01/2006 Environmental Protection Act 1990: Part 2A (the Defra Circular 01/2006). These annexes contained both statutory and non-statutory guidance, with the statutory guidance contained in annex 3 (the Previous Statutory Guidance). Defra has indicated that the Previous Guidance is now obsolete with the exception of the guidance dealing with radioactive contaminated land. There have been no regulatory changes to the guidance for radioactive contaminated land, but it has been reissued as a stand alone document to increase clarity.

Key changes

Objectives

The New Guidance includes a new section of statutory guidance, which sets out the objectives of Part 2A of the EPA 1990 and the Government's policy on contaminated land. The overarching objectives are stated as follows:

(a)        To identify and remove unacceptable risks to human health and the environment.

(b)        To seek to ensure that contaminated land is made suitable for its current use.

(c)        To ensure that the burdens faced by individuals, companies and society as a whole are proportionate, manageable and compatible with the principles of sustainable development.

The objectives state that the starting point when making an assessment "should be that land is not contaminated land unless there is reason to consider otherwise". The New Guidance goes on to explain that "only land where unacceptable risks are clearly identified, after a risk assessment has been undertaken in accordance with this Guidance, should be considered as meeting the Part 2A definition of contaminated land".

This is a change from the Previous Guidance. Annex 1 of the Previous Guidance stated that one of the objectives of the Part 2A regime should be to ensure that land is "suitable for use" and appeared to take a more broad-brush approach, the New Guidance places a greater focus on land with "unacceptable risks".

Inspections

The Previous Statutory Guidance instructed local authorities to adopt a "strategic approach" when they attempt to identify land which requires more detailed inspection. This approach is also contained in the New Guidance. The New Guidance notes that "strategic approaches may vary between local authorities". This should allow a more flexible approach to be taken. Under the Previous Guidance local authorities were required to keep a written strategy of their inspection approach; in addition to this requirement they are now obliged to review this written strategy at least every five years. However, there is no longer an obligation to consult the Environment Agency.

One point to note for landowners is that the New Guidance instructs local authorities to consult with landowners before inspecting the land, unless there is a particular reason for this not being possible. If the landowner refuses access, or the landowner cannot be found, the local authority is advised to consider using statutory powers of entry.

Risk Assessment

A more detailed section on the process of risk assessment has been included in the New Guidance. The New Guidance continues the risk-based approach which was contained in the Previous Guidance. However the New Guidance gives a definition of 'risk', which appears to be less open to disputes on interpretation. A risk is said to be a  combination of "(a) the likelihood that harm, or pollution of water, will occur as a result of contaminants in, on or under the land; and (b) the scale and seriousness of such harm or pollution if it did occur".

The New Guidance requires local authorities to produce a written statement when they have concluded that "there is little reason to consider" that a piece of land poses "an unacceptable risk" and that accordingly inspection activities are halting.

The New Guidance encourages local authorities to consult with external experts. However, it is emphasised that the decision does still rest with the relevant local authority. The New Guidance also explains that it is common practice to use "generic assessment criteria" as a screening tool since this will help exclude some sites from investigation.

The New Guidance introduces a new requirement for local authorities to produce a 'risk summary' "where, on the basis of its risk assessment, the authority considers it is likely that the land in question may be determined as contaminated land". The summary should contain the local authority's understanding of the risks, uncertainties and initial views on possible remediation.

Categorisation of Contaminated Land

The New Guidance has introduced a new 4 category classification system to assist local authorities in deciding whether there is a significant possibility of significant harm to human health.

Land classified in category 1 or 2 would encompass land which is capable of being determined as contaminated land, whilst category 3 and 4 would not fit the definition of contaminated land. The categories are defined as follows:

(a)        Category 1 - where "there is an unacceptably high probability, supported by robust science-based evidence, that significant harm would occur if no action is taken to stop it".

(b)        Category 2 - where "there is a strong case for considering that the risks from the land are of sufficient concern, that the land poses a significant possibility of significant harm".

(c)        Category 3 – where there is not the strong case described in the test for Category 2. This may include "land where the risks are not low, but nonetheless the authority considers that regulatory intervention under Part 2A is not warranted".

(d)        Category 4 – where there is no risk or the level of risk posed is low.

This same 4 category system has also been introduced to assist in identifying whether there is a significant possibility of significant pollution of controlled waters.

Remediation

The New Guidance sets out the aim of remediation as being:

(a)        "to remove identified significant contaminant linkages, or permanently to disrupt them to ensure they are no longer significant and that risks are reduced to below an unacceptable level; and/or

(b)        to take reasonable measures to remedy harm or pollution that has been caused by a significant containment linkage."

The New Guidance instructs local authorities to act in a reasonable  manner in deciding what actions it includes in a remediation notice, specifically the local authority must be reasonable with regard to the cost and the seriousness of the pollution and harm. This appears to be a slightly lower bar than was set by the Previous Statutory Guidance. This placed a greater emphasis on setting a standard of remediation which would result in land being "suitable for use".

The standard of remediation also appears to have been amended by the introduction of the 4 category test for contaminated land. The New Guidance states that "where the aim of remediation is to remove or permanently to disrupt significant contaminant linkages" the intention should be to ensure that land is remediated so that it "no longer poses sufficient risk to qualify as contaminated land." With reference to paragraph 3.4.2 above, this could now mean land is remediated to a level where the risks of contamination are not low.

The standard of remediation was commented on by a report authored by Philip Wilbourn, an RICS member. Mr Wilbourn stated that "the planning process is going to increasingly require that developers, when remediating sites, will be required to remediate to Category 3 standard".

Recovery of the costs of remediation

The New Guidance has provided general guidance to local authorities in relation to the recovery of the costs of remediation. The New Guidance states that "recovery is not necessarily an 'all or nothing' matter". This may make it reasonable for a person to pay for part, rather than all, of the cost of remediation.

Conclusion and reaction

The New Guidance highlights the importance of local authorities categorising land correctly and then focusing on the land which poses the greatest risk. It is clear that the New Guidance encourages a risk based approach, which should be underpinned by a sound evidence base. The new categories indicate that the risk of land being defined as contaminated under the regime has reduced, which will be likely to impact on commercial investment decisions. However, the New Guidance may be criticised for lowering remediation standards, which may have knock-on effects for the environment.

The effect of these New Guidelines will need to be assessed as they begin to be applied by local authorities, particularly with regard to how the standard of remediation is applied.

Alison Ogley is an Associate and Josh Kitson is a Trainee Solicitor at Walker Morris. Alison regularly contributes articles and updates to reach.... ®, the free Walker Morris knowledge database and alerter service. She can be contacted on 0113 283 4485 or byThis email address is being protected from spambots. You need JavaScript enabled to view it..