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Contaminated land - background information

Part IIa of the Environmental Protection Act 1990 provides a new regulatory regime for the identification and remediation of contaminated land. In addition to the requirements contained within the primary legislation, operation of the regime is subject to regulations and statutory guidance.

On 7 February 2000 the draft statutory guidance was laid before Parliament and came into force on 1 April that year. District Councils now have a duty to produce a strategy for the investigation of their areas for contaminated land.

This is a complex and far-reaching regime and has implications for local authorities beyond their new regulatory role including significant legal and financial aspects. It will have an influence on several departments of the Council including Environmental Services, Development Control and Legal & Property Services.

The main objective of the new regime is to provide an improved system for the identification and remediation of land where contamination is causing an unacceptable risk to human health or the wider environment. These risks are to be assessed in the context of the current or intended use of the land in line with the 'suitable for use' approach.

The primary regulatory role lies with local authorities. That role will be:

To cause their areas to be inspected to identify contaminated land
To determine whether any particular site is contaminated land
To act as enforcing authority for all contaminated land other than 'special sites' (which are the responsibility of the Environment Agency)
To decide, in conjunction with the Environment Agency, whether any site is a 'special site'

The Council's four main enforcement tasks are:

To establish who should responsibility for the remediation of the land
To decide what remediation is required and ensure that it takes place (remediation may take place by agreement, by remediation notice or through the Council carrying out the work itself)
To establish who should bear what proportion of the liability costs
To record certain prescribed information about its regulatory action in a public register

It should be noted that the register referred to above is not a register of contaminated land, for which there is no requirement, but a register of regulatory actions such as the service of a remediation notice.

The Act defines contaminated land as land which appears to the local authority 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 that pollution of controlled waters is being or is likely to be caused.

The definition of significant harm uses the concept of a 'pollution linkage' i.e. a link between a contaminant and a receptor by means of a pathway. This means that a site may be grossly polluted and yet not contaminated land in the definition of the Act. This is in line with the 'suitable for use' approach where land is only considered contaminated where harm may be caused.

Under the provision concerning liabilities, responsibility for remediation costs will, wherever possible, follow the 'polluter pays' principle. Where the polluter cannot be found, responsibility will pass to the owner or occupier or, in certain cases, the local authority.

This regime has concerns for local authorities beyond their regulatory role. In outline these are:

To protect inward investment
To avoid blighting land
To inform the public without giving rise to unnecessary concerns
To minimise the Council's liabilities
As landowners and occupiers
Effects on Building Control function
Interface with development control and local plans
Resource implications

Clearly the legislation has the potential for effects on many Council departments. Consequently a multi-disciplinary working has been set up.

The first steps for Salisbury District Council in the performance of this new duty are the identification of potentially contaminated sites and the production of a strategy for the inspection of its area.

Inspection Strategy

Strategic Approach

In carrying out its inspection duty the Council must take a strategic approach in order to identify land, which merits more detailed inspection. This approach should:

Be rational, ordered and efficient
Be proportionate to the seriousness of any actual or potential risk
Seek to ensure that the most pressing and serious problems are located first
Ensure that resources are concentrated on investigating areas where the authority is most likely to identify contaminated land
Ensure that the Council efficiently identifies requirements for the detailed inspection of particular areas of land
Reflect local circumstances

General Approach

The Council's general approach to the task of inspection is:

A comprehensive search of polluting uses to ascertain sources
A comprehensive search for receptors
A sieve mapping or similar technique to identify a list of sites meriting further work
Production of a list of sites for categorisation and prioritisation
More detailed investigation of selected sites targeting resources where most serious harm is likely
A limited number of desk studies
A limited number of site investigations

Information:

Contact details:

Telephone:
01722 434319 or 434320

email:
enhmail@salisbury.gov.uk

Postal address:
Environmental Services
Salisbury District Council
PO Box 2126
Salisbury
SP2 2DJ