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Contaminated Land

Frequently Asked Questions

Is there EU legislation on contaminated land?
A new EU Directive, 2004/35/CE, on environmental liability with regard to the prevention and remedying of environmental damage, comes into force in April 2007, and covers new land contamination. See the Environmental liability pages. The European Commission has recently proposed a Soil Thematic Strategy including a proposed Directive which will address land contamination.

What is "contaminated land"?
Under Part 2A of the Environmental Protection Act 1990, the statutory definition of contaminated land is:

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." (See outline of the regime for proposed changes)

Statutory guidance has been issued concerning this definition, which is modified with respect to radioactivity. Please see outline of the regime for a brief description of the regime, the key elements and where to find them, including Defra Circular 02/2006 on contaminated land.

Does radioactivity now come under Part 2A?
Yes, Part 2A was extended to include radioactivity (excluding nuclear contamination) on 4 August 2006. The regime was further extended to include land contaminated by a nuclear occurrence on 10 December 2007. For radioactivity, the extended regime will apply to human receptors only, and not the wider environment or pollution of controlled waters. The extended regime does not cover natural background radioactivity and does not include on site nuclear contamination; sites under action from Radiation (Emergency Preparedness and Public Information) Regulations (REPPIR) or contamination from crown defence sites.

Is radon gas covered under Part 2A?
No, like natural background radioactivity, Radon gas is excluded from the scope of Part 2A. More information on radon can be found on the HPA website at: www.hpa.org.uk/radiation/radon/index.htm

How much contaminated land is there?
 This is not an easy question to answer. It really depends on definitions. A statutory definition of "contaminated land" is provided under Part 2A of the Environmental Protection Act 1990, for the purposes of the Act (see below). The number of sites which might be found to meet this definition can however only be guessed at, since each potential site needs to be individually assessed as to the degree of risk being posed if any, as the definition is risked based.

There have been several broad national estimates, using various definitions. In its 2002 report, The state of contaminated land, the Environment Agency quotes an earlier estimate that there may be as many as 100,000 sites affected by contamination to some degree in England and Wales. It advised that between 5 and 20% of these may require action to ensure that unacceptable risks are minimised. A new research report published by the Environment Agency includes more up-to-date estimates, see:

How many Part 2A authorities have inspection strategies?
 All of the 353 Part 2A authorities in England have formally adopted a strategy.

How many sites have been determined as "contaminated land" under Part 2A?
 The answer to this, and other questions on regulatory actions under Part 2A, can be found in this table:

Part 2A regulatory activity1 - England2
  LA determinations3 Special sites4 Remediation statements5 Remediation notices6 Remediation declarations7 Special site inspections8
2000/01
44
2
1
0
0
7
2001/02
19
11
38
(1 special)
2
0
22
2002/03
38
2
12
(8 special)
1
0
28
2003/04
10
5
3
1
0
42
2004/05
223
1
17
(4 special)
0
1
26
2005/06
194
6
13
(6 special)
1
(1 special)
0
3
2006/07
10
2
105
(2 special)
0
0
N/A
2007/089
0
0
0
0
0
N/A
Totals
538
29
189
(21 special)
5
(1 special)
1
(0 special)
128
  1. note that land is also investigated and remediated without the formal application of Part IIA.
  2. figures may change from time to time to reflect new or updated information from local authorities, provided to the Environment Agency. They may also be amended by a formal quality assurance exercise by the Agency when compiling the next State of Contaminated Land Report in 2007.
  3. formal determinations of particular land as "contaminated land" under Part 2A, following detailed investigation. A case may involve a number of determinations of separate plots or parcels of land. A single determination may result in a multiplicity of notices, statements and declarations.
  4. special sites are "contaminated land" for which the Environment Agency, not the local authority, is the enforcing authority. This is therefore a subset of the sites determined by LAs.
  5. "contaminated land" for which appropriate remediation has been formally secured by the LA or the Agency under Part 2A, without service of a remediation notice. Bracketed numbers indicate how many of the main figure concern special sites.
  6. notices served by the enforcing authority requiring remediation. Bracketed numbers indicate how many of the main figure concern special sites.
  7. declaration by the enforcing authority recording actions precluded from inclusion in any remediation notice. Bracketed numbers indicate how many concern special sites.
  8. cases where the Environment Agency has agreed to inspect on behalf of the LA, with a view to possible determination of the site as "contaminated land" and designation as a special site.
  9. as at 1 July 2007.

What about other land?
The statutory definition covers land which poses unacceptable risks to human health or the environment, in its present condition and circumstances. Not all land affected by contamination will pose such risks, and the majority is expected to remain outside the scope of this regime. Some will come within other regimes such as planning control.

What will the regulators do?
In outline, the role of the regulators under Part 2A is to:

  • inspect their areas to identify any contaminated land
  • establish responsibilities for remediation of the land
  • ensure that appropriate remediation takes place
    • - through agreement with those responsible, or if not possible
    - by serving a remediation notice, or
    - in certain cases, carrying out the work themselves, or
    - in certain cases, through other powers

  • keep a public register detailing the regulatory action which they have taken under the new regime.

In most cases the regulator is the borough or district council. For certain "special sites" the Environment Agency will take over from the council as regulator once the site has been formally identified.

What happens when land is identified as contaminated?
The regulator will contact those they think are responsible, and will normally discuss the case including liability and remediation requirements. If there is no satisfactory outcome, such as voluntary action, a remediation notice may be served to ensure the land is remediated. At least three months must elapse before such a notice is served except in urgent cases.

What information about contaminated sites will be held?
Local authorities will take a strategic approach to inspection, finding and dealing with the most pressing and serious problems first and concentrating on areas where contaminated land is most likely to be found. Their published strategies set out their approach to inspection, and the reasoning behind it.

What about public registers?
Public registers held by local authorities contain information about regulatory action on contaminated land as it happens. They will record remediation notices as they are served and remediation statements as they are published. Information on the register is not deleted, so that appropriate action can be taken later e.g. if proposals are made to change the use of that land.

Is this information likely to cause blight?
If the information is properly interpreted, no. Local authority strategies will set out the approach being taken in that particular area and the justification for it. They will not be lists of sites which may or may not be contaminated land. The public registers will record only information about land which has been formally identified as contaminated land, and the action which has been taken to remediate it.

Who will pay for remediation?
Part IIA follows the polluter-pays principle. If a remediation notice has to be served, or if the authority carries out the remediation in an emergency, the cost of remediation will normally lie with the person(s) who caused or knowingly permitted the contamination. However, if this person(s) cannot be identified the owner or occupier of the land will be responsible (unless the problem is one of water pollution).

Lenders, investors, insurers and professional advisers will normally be excluded from liability for remediation. Charities and voluntary organisations might be liable, but may benefit from the statutory guidance on cost recovery and from the requirement to have regard to hardship.

Does this include members of the public or SMEs?
Yes, if they caused or knowingly permitted the contamination, or if they own or occupy land in a case where the polluter cannot be found. However, regulators must have regard to any hardship that might be caused, and also to statutory guidance on cost recovery, which could lead to costs being waived or reduced.

For SMEs consideration will be given to the possibility of insolvency, and liability may be reduced to avoid this.

Am I liable if I buy/sell contaminated land?
If you have good reason to think that the land meets the definition of contaminated land, then you may need specialist advice. If it has already been formally identified by the local authority as contaminated land, this should show up on the search carried out during conveyancing. However, the new laws do not fundamentally change liabilities which already existed under common law and the law on statutory nuisance.

Where can I get more information about the Part 2A regime?
All enquiries about specific sites should be addressed to the local authority. General policy queries may be addressed to Defra at the address shown on the contact page.

Where can I find advice for small firms?
"Netregs" helps to guide small business through environmental regulation - see www.netregs.gov.uk.

Where can I get Technical Advice?
The publications page includes details of the most relevant materials produced by Defra and predecessor Departments, and others, on the contaminated land regime, including research and procedure. Technical guidance and material is also published by the Environment Agency.

Who is doing research in this field?
The Environment Agency undertakes technical and other research in the contaminated land field (see www.environment-agency.gov.uk/subjects/landquality/). Other useful sources are shown on our organisations and networks page.

Where can regulators get training?
A series of training seminars based on the Local Authority Guide to Part 2A and Training Programme have been held to assist local authority officials in their new responsibilities for contaminated land. A number of training providers and agencies are now offering further training to local authorities in the following areas:

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Page last modified: 8 August 2007
Page published: 1 August 2003

Department for Environment, Food and Rural Affairs