The law on contaminated land

Part IIA of the Environmental Protection Act 1990

On 1 April 2000, The Contaminated Land (England) Regulations 2000 [61kb] came into force, implementing Part IIA of the Environmental Protection Act 1990 [EPA]. 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 Councils in Devon have produced strategies 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 EPA 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 The Contaminated Land (England) Regulations 2000 [61kb] and through Contaminated Land Legislation and Statutory Guidance [488kb] 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

Relationship between Part IIA and other Controls

Planning and Development Control

The contaminated land regime will not normally apply where land is being managed within the normal cycle of land redevelopment and regeneration, where planning and development control will continue to be the primary means of control. Please see our Planning pages for further information.

Environmental Protection Act 1990 Part III – Statutory Nuisance

Statutory nuisance provisions will no longer apply where the nuisance arises in relation to land in a 'contaminated state'. However, nuisance provisions could still apply where land gives rise to a nuisance (such as an odour), that is an offence to human senses but which is not covered under the various categories of harm set out in the Contaminated Land Legislation and Statutory Guidance [488kb].

Integrated Pollution Control (IPC) and Pollution Prevention and Control (PPC)

Part IIA will not apply where the EA powers under IPC provisions of the EPA 1990 can be used to take action to remedy contamination resulting from the breach of a process authorisation. Similar arrangements will apply to processes authorised under PPC.

Waste Management Licensing (Part II of EPA 1990)

Part IIA will not normally apply where contamination has resulted from land subject to a waste management licence, although it may apply where adverse effects arise from causes other than a breach of licence conditions or from activities that are permitted under the licence. Licences are regulated and issued by the EA.

Water Resources Act (WRA) 1991

The WRA 1991 gives the EA powers to take action to prevent or remedy the pollution of controlled waters. Decisions about the most appropriate regime in any particular case will be handled through consultation between the Council and the EA.

Principles of pollutant linkage and risk assessment

The definition of significant harm is based on the pollutant linkage being present. A pollutant linkage consists of three parts:

• A "contaminant" is a substance which is in, on or under the land which has the potential to cause harm or to cause pollution of controlled waters.
• A "pathway" is one or more routes or means by, through, which a receptor is being exposed to, or affected by, a contaminant, or could be so exposed or affected.
• A "receptor" is specified in the DETR guidance (see below).

Receptors recognised as being potentially sensitive are:

• Human beings
• Ecological systems or living organisms forming part of a system within certain protected locations including:

           Sites of Special Scientific Interest (SSSI's)

           National Nature Reserves

           Marine Nature Reserves

           Special Areas of Conservation (SAC's)

           Special Protection Areas (SPA's)

           Candidate SAC's

           RAMSAR sites

           Areas of special protection for birds

• Property in the form of buildings including:

           Ancient Monuments

• Property in other forms:

           Livestock

           Crops

           Home-grown produce

           Owned or domesticated animals

           Wild animals subject to shooting or fishing rights

• Controlled waters: defined by reference to Part III (Section 104) of the Water Resources Act 1991; this embraces territorial and coastal waters, inland fresh waters, and ground waters.

If the three elements are present for the pollutant linkage, a risk assessment must be undertaken to determine the likelihood of significant harm being caused to one of the specified receptors. Having identified the pollutant linkage and undertaken a risk assessment that indicates that significant harm is being caused to a receptor, the land can then be determined as "contaminated land".