What is the Law Relating to Contaminated Land ?

On 1st April 2000, the Contaminated Land Regulations came into force, implementing Part IIA of the Environmental Protection Act 1990. The regulations place a duty on the local authorities to identify any contaminated land in their areas, and bring about its remediation. The regulations give the council (and in some cases the Environment Agency) powers to serve remediation notices requiring such remediation to be carried out. In general terms, the regulations are intended to enforce the "polluter pays" principle, although if the polluter(s) cannot be identified, no longer exists, or is otherwise unable to bear the cost, this responsibility may fall upon the landowner by default. Corporate bodies may acquire the full liability for remediation if they do not exercise "due diligence" in investigating the past history of land prior to acquisition

What is South Hams District Council’s policy on contaminated land ?

The Council’s policy on contaminated land is as follows:

"To ensure the protection of the land environment by the pro-active identification and management of contaminated land, through the adoption of a rational and transparent strategy implemented (where possible) in partnership with landowners, developers and other relevant parties"

SHDC adopted its strategy for identifying contaminated land on 21st June 2001. It is our aim to bring about the identification, investigation and (where necessary) the remediation of such land in a systematic and efficient fashion, in co-operation with all interested parties, using our powers of enforcement only as a last resort.

Why is this important to the planning and development process ? How can I avoid the "blighting" of former industrial land ?

There are many advantages to all parties in bringing forward the voluntary identification and remediation of potentially contaminated land in parallel with its’ development: A principal area of concern to all landowners is that of "blight"; whereby any site with a history of industrial use might be regarded as potentially contaminated, and its market value diminished, due to the fear of acquiring a large remediation liability with the land. 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-

• 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 basis of the definition is complex and incorporates the concept of risk assessment. Three elements all need to be in place for a piece of land to be determined as contaminated land; there must be a proven source of contamination, a receptor (such as the occupiers of the site or adjacent land, a stream or river, or an underground watersource), and a migration pathway via which the contamination may reach the receptor. Even then, the land would only be determined to be contaminated land if it was shown to be causing, or capable of causing significant harm to any identified receptor. Significant harm is also defined by the Regulations.

It is likely that very few sites will "fail" all of these tests and be determined as contaminated land.

The possible blighting of land due to a lack of either knowledge about the site, or understanding of the regulations, is an issue of concern to South Hams District Council, and we are keen to assist landowners in the South Hams to avoid this so far as is possible. The authority is at an early stage in implementing its strategy, and it will take several years to identify and review all of the former industrial land in the South Hams. Clearly, landowners and developers will continue to buy, sell and develop land throughout this period, and will want to protect themselves against the impacts of the legislation and potential blight.

How can South Hams District Council help ?

The possible existence of in-ground contamination is a material planning consideration, and it is common practice for the council to request, as a planning condition, that a site investigation and assessment be undertaken to demonstrate that a site is "fit for purpose" in view of its proposed new use. We feel that it is only fair that prospective developers are made aware, at the earliest stage in the process, of the existence and implications of the Contaminated Land Regulations, and given the opportunity to protect their interests by presenting the data collected to South Hams District Council for assessment. Where appropriate investigations are undertaken by an applicant in order to support a planning application, it is often very cost effective for their scope to be varied to address the issues raised by the Contaminated Land Regulations 2000. If a developer wishes to do so, the authority would be pleased to discuss the matter, and assess the data collected, with respect to Part IIA. In most cases we will be able to make a determination based on this data, and provide a statement for the record.

What happens when the data indicates that the land may be contaminated land ?

If a site is determined to be contaminated land, it will, by definition, require remediation of some description. The authority (and perhaps the owner / developer) will then attempt to identify the appropriate person(s) to bear responsibility for the remediation. It is often assumed that the costs of remediation will be very high, and this has in part contributed to the blighting of former industrial land. Whilst this may be the case for some larger sites, and certain kinds of contamination, it is not generally the case. In many cases, provided that remediation requirements are identified at an early stage in the development cycle, they can be integrated into the general site preparation works or building designs at sensible cost. There are financial incentives for developers to undertake voluntary remediation, such as tax rebates for remediation expenditure, and exemption from landfill tax for remediation works. However, if agreement on the required remediation cannot be reached between the Council and the appropriate person(s), the council may have to invoke its enforcement powers, and serve a remediation notice requiring specified clean-up works to be undertaken. Once a notice has been served, the entitlement to tax exemptions lapses. It should be apparent that once a site has been developed, structures completed and occupied, the investigation and any required remediation becomes more difficult, expensive and disruptive; another persuasive reason for bringing forward the review of sites to coincide with the development process.

Where to find out more?

• The DEFRA website contains details of central government policy, links to the legislation and statutory guidance documents, and other information sources.
• The South Hams District Council "Strategy For The Identification & Remediation of Contaminated Land" is available for inspection at the Council offices, Follaton House, Plymouth Road, Totnes, TQ9 5NE, during office hours. Copies may be purchased on request, and it is also published on the this website.
• Should you have any specific questions about a particular issue relating to Part IIA of the Environmental Protection Act 1990, or the Contaminated Land Regulations 2000 (but not the planning process), please address them to Environmental Health at the above address, marked for the attention of the Contaminated Land Officer, Cassandra Hopkins.