Contaminated land

Contaminated land is land where substances (the contamination) in or under the land make it actually (or potentially) hazardous to people’s health, or hazardous to our environment.

Throughout the UK there are numerous sites where land has become contaminated by human activities, including industry, chemical and oil spills and where waste has been buried.

Contaminated land is defined by Part IIA of the Environmental Protection Act 1990 as:

“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.

The act and guidance produced by the government provide further definitions and details on how local authorities must fulfil their duties in identifying and dealing with contaminated sites.

On 1 April 2000, the Contaminated Land Regulations came into force, implementing Part IIA of the Environmental Protection Act 1990. The regulations place a duty on local authorities to identify any contaminated land in their areas, and bring about its remediation. The regulations give Local Authorities (and in some cases the Environment Agency), powers to serve remediation notices requiring such remediation to be carried out.

As a result we have produced a strategy to implement the legislation with the aim to bring about the identification, investigation and (where necessary), the remediation of such land in a systematic and efficient fashion. Where possible this will be done in co-operation with all interested parties, using our powers of enforcement only as a last resort.

Part IIA of the Environmental Protection Act 1990, which is introduced by section 57 of the Environment Act 1995, 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:

• Identify the problem
• Assess the risks
• Determine the appropriate remediation requirements
• Consider the costs
• Establish who should pay
• Implementation and remediation

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:

• Local authority inspection strategies
• Identification and designation of contaminated land
• Remediation requirements
• Exclusion from, and apportionment of liability
• Cost recovery

The Contaminated Land (England) Regulations 2000 [61kb] set out further requirements, particularly in respect of:

• Categories of land which are to be designated as Special Sites
• The form and content of remediation notices
• Appeals
• Compensation for access
• Public remediation registers

The principal regulators for Part IIA are the local authorities (District and Unitary Councils) whose role has been defined as follows:

• Prepare and publish an inspection strategy
• Inspect their area to identify and where appropriate determine contaminated land
• Consult the Environment Agency (EA) on pollution of controlled waters
• Ensure remediation of land identified as contaminated land
• Transfer "special sites" to the EA
• Maintain remediation registers
• Provide information to the EA for inclusion in the State of Contaminated Land report

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

• Provision of relevant information, held by the EA, to local authorities
• Regulation of Special Sites
• To ensure remediation of Special Sites
• Maintenance of a public register of regulatory action for Special Sites
• Preparation of a national report on the state of contaminated land
• Provision of advice to local authorities on identifying and dealing with pollution of controlled waters
• Provision of site-specific advice to local authorities on the remediation of contaminated land

All local authorities are required by Part IIA of the Environmental Protection Act 1990 to identify land in their area that is contaminated. 

Land affected by contamination will be subject to a risk assessment. This will determine whether there is a significant risk to human health or risk of harm to the environment. A risk assessment considers the following factors:

• is there a source of contamination – are there any harmful substances actually present on the site or nearby land?
• is there a pathway between the receptor and the source?  Examples of a pathway could be breathing contaminated dust, touching soils on the site or consuming vegetables grown in the soil
• is there a receptor - such as people, rivers and buildings on the site that could be affected by the presence of the contamination?

Land can only be determined as contaminated land if all three source, pathway and receptor are present. This is known as a ‘pollution linkage’ or a ‘significant pollution linkage’ if the risk is considered significant.

If there is a source on site but no pathway or receptor then there is no pollution linkage. The site cannot be causing harm and should not therefore be classified as being contaminated land.

Land can become contaminated from many activities. In the past, industrial uses, mining activity and waste dumping were carried out throughout the UK with little regard for the impact of the activity on the environment. There are many examples of contaminated sites and hazards they may pose.

In the majority of cases, land affected by contamination in Mid Devon will be land situated on or near to old industrial or landfill sites. There is a very wide range of hazardous substances that could be found on old industrial sites and these will be specific to the site’s previous use.

The Environment Agency (EA) and the DEFRA (the government department responsible for land contamination policy), have published a series of documents relating to contaminated land. See our Documents, links and organisations page for further information.

Your property may be situated on land with an old industrial or waste disposal use. This does not mean the property is on contaminated land, it means that there is the potential for contamination to be present. 

You can arrange to have an independent check to be completed on the land use history at your property. There are a number of commercial organisations which can do this for you and they are often referred to ‘environmental searches’ and in some cases can be ordered online.

There are three main ways of obtaining information about land contamination from us:

1. A public register will be created to record information on sites only where land has formally been determined as contaminated under Part IIA of the Environmental Protection Act 1990 including where notices have been issued or a formal Remediation Statement has been prepared in line with Section 78(R) of the Act. This register is available for viewing free of charge at during normal office hours by appointment, see Contact details and opening hours. To make an appointment please Contact us.

2. Our Environmental Health Services make site specific environmental information available in accordance with the Environmental Information Regulations 1992. A disclaimer is generally added to the written response making it clear that the information provided is only that available to the department at that time and encouraging the requester to make more extensive enquiries. The regulations state that requests must meet certain criteria and be accompanied by reasonable payment where demanded. Consequently, requests must be:

• Made in writing
• Be accompanied by a local map clearly marking the boundary of the land
• Be reasonable and specific in the questions asked e.g. "is the council aware of any land within 250 metres of the site which has been used for waste disposal to landfill?"
• Be accompanied by appropriate payment to cover administration costs

We will confirm with you the requirement to pay a fee, how much this is and the payment method before dealing with your request further. Straightforward queries normally cost £30+VAT with more complex and time consuming queries costing more.

3. Through an enquiry with our Land Charges team, as part of a land search, normally carried out as part of a property/land transaction, see Local authority searches.

You may also want to view other information held by our Planning team to find out about previous activities on a site and any conditions on current developments regarding the investigation and remediation of potential contaminated land. Planning records can be viewed in person at our main reception or online, see Search and comment on planning applications.

In all cases, especially where any doubt exists regarding contamination it is worth seeking advice from your solicitor and/or an appropriately qualified and competent contaminated land expert.

The effects of contaminated land on human health and on the environment will depend on the type and amount of contaminant involved. As all sites will be different, they have to be considered individually but using the same consistent approach.

For the vast majority of sites the health impacts on people will be very small. However there is evidence that contaminated land can cause impacts to health ranging from skin irritation to breathing difficulties, cancer and birth defects.

In formally determining land as contaminated under the Part 2A legislation, see question 'What is Part IIA of the Environmental Protection Act 1990?' (above), in terms of risks to human health, then we must be satisfied that contamination present is capable of causing ‘a Significant Possibility of Significant Harm’ or SPOSH for short.

Historically we were only made aware of contamination issues where there was a complaint or pollution incident, or where the site came up for redevelopment through the planning process (generally only planning applications submitted after 1992).

The situation has now changed and the government now requires local authorities to inspect their areas to decide which sites are or could be causing harm or pollution and ensure they are made safe.

This inspection process might result in people who caused the contamination (polluters) e.g. landowners, the Council and others, becoming responsible for cleaning up a site. If land is contaminated, it must be restored to a state that is 'suitable for use'.

The level of clean up required is dependent on the use of the land - the land must be ‘suitable for use’. A higher standard of clean up is required for residential gardens than industrial sites because the risk and likelihood of contact with the contamination is greater for those using a garden than those of a work place.

The clean up targets also have to consider risks to the wider environment, in particular water resources and protected habitats.

There are many ways in which a site can be made suitable for use, ranging from "dig and dump" (taking contaminated soils away to licensed landfill sites) to the use of in-situ or ex-situ soil and water treatment techniques. There are also a number of other approaches, such as blocking the pathway between the contamination and the receptor e.g. replacing soil with concrete or soil solidification.

Decisions we make about how a site is treated depend very much on the site itself. They also depend on factors such as the type of contamination, the geology of the site, legal requirements (for example there are some differences between making land safe through the planning process compared to Part IIA of the Environmental Protection Act 1990), cost/benefit implications and the proposed/current use for the site.

We will always try to make the polluter pay for the clean up of a polluted area and pay for the damage caused by the contaminated land. This is in line with the government policy on making the polluter pay for pollution they have caused, known as the ‘polluter pays principle’.

Under Part IIA of the Environmental Protection Act 1990, you may be responsible for costs associated with a contaminated site if you have 'caused or knowingly permitted' the contamination (also known as the Class A Person) or if you own or occupy the land (also known as the Class B Person).

If you own the land and it is contaminated but you did not cause or permit the contamination, you will only be responsible for the cost of making it safe when the person who caused the contamination cannot be found. In such cases not all of the costs may fall to you and you cannot be liable for the costs of cleaning up pollution to waters. We will contact you if this is the case.

We must take into account your ability to pay if you are an individual householder or even a company director that has caused the pollution. In such cases you may meet the test of 'hardship' and will not be made responsible to pay.

If no one is liable to pay for the contamination then the responsibility falls to us as the local authority (also known as the Class C Person).

Brownfield land is all land that has been previously developed with some exceptions for example forestry, horticultural land and public open space. 

There is growing pressure from the government to reuse brownfield land for development, particularly for housing. Under the new Local Development Framework and our adopted Core Strategy we have set a target for 30% or more of new homes are to be built on ‘brownfield’ land. It is more sustainable to reuse brownfield sites (that have no current beneficial use) than to build on land that has never been built on (so called ‘greenfield’ land).

Brownfield land is not land which meets the legal definition of contaminated land - see question 'What is the legal definition of contaminated land?' (above). See also Planning for more information on our planning policies.