England has a substantial legacy of chemical contaminants in soil, much of it caused by industrial and domestic pollution. Land contamination can pose a threat to the environment and the health of humans, animals and plants. Policy in this area addresses:

• Measures to find and deal with existing contaminated land.
• Measures to prevent more contaminated land being created. These include policy and legislation on pollution, waste, water and chemicals.

Most soils have some small presence of contaminants (eg caused by natural geology and diffuse pollution) but levels of risk are usually very low.  However, some land has the potential to pose unacceptable levels of risk to human health or the environment, including water pollution, in particular some ex-industrial sites and ex-landfills.  Land is only considered to be “contaminated land” in the legal sense if it poses an unacceptable risk.

Government policy on land contamination is built on the twin ideas of stopping new contaminated land being created, whilst taking a risk based approach to tackling historical contamination.  The former is not covered here, but it includes Defra policy on pollution, waste, water and chemicals.

With regard to historical contamination, since the mid-1990s successive governments have taken a primarily market based approach. This approach encourages market action wherever possible and holds regulatory intervention in reserve for when there is no prospect of a market solution.  This broad approach has been very successful, and tens of thousands of hectares of affected land have been dealt with. The very large majority being addressed when brownfield land is redeveloped under planning rules overseen by the Department for Communities and Local Government.

Defra oversees the contaminated land legislative regime under Part 2A of the Environmental Protection Act 1990.  The regime plays two main roles:

• Indirectly, it helps drive market solutions.  The existence of legislation has prompted many companies holding problematic land to take action voluntarily.  It also sets the minimum standard for dealing with contamination when land is redeveloped (as a minimum, sites must not qualify as contaminated land once they have been developed).
• It can be brought into play directly when there is no market solution (eg in cases where nothing would be done without regulatory intervention).  The Act requires local authorities to inspect their areas to find contaminated land.  Where such sites are found, the authority must make sure “reasonable” remediation is undertaken, and decide who will pay.  The idea is that the polluter should pay, followed by the current owner, and in cases where no one else can be found to pay the authority may take action itself.

Policy was devolved in 1999.  Scotland and Wales operate systems similar to England’s.

Latest news

Following the review of the contaminated land regime and public consultation, revised draft statutory guidance has been laid in Parliament today – Tuesday 7^th February 2012 – with associated regulations.  The revised guidance cannot be issued until after 40 days has elapsed, and is subject to there not having been a resolution of either House that the guidance should not be issued.  The revised regulations will come into force on the Common Commencement Date of 6^th April and it is hoped that the new guidance will be available to be issued on or soon after that date.

The existing statutory guidance remains in force until any new guidance has been issued.

The new statutory guidance is intended to be more usable for those that deal with land contamination and remediation.  In particular, a new four category test is intended to clarify when land does and does not need to be remediated.  By reducing regulatory uncertainty, this policy aims to make the regime target higher risk land more efficiently.  The changes will be supported by technical tools, which will be developed by the land contamination sector to increase consistency over time.

The new regime will still be highly precautionary but will be better at focussing efforts on finding high risk sites and dealing with them first, and at speeding up Local Authority decision-making by helping them dismiss low risk sites more easily.  This means that the regime will, through being more targeted and efficient, offer better protection against health impacts.

Review of contaminated land statutory guidance

Defra recently reviewed the contaminated land regime in England for the first time since its introduction in 2000. The purpose was to consider whether improvements could be made to the regime, taking into account the experience of nearly ten years delivery and the latest scientific evidence. The review found the primary legislation (Part 2A of the Environmental Protection Act 1990) remained fit for purpose, and there was a strong need to keep it. However there were flaws in the accompanying Statutory Guidance which had undermined the effectiveness of the regime and created considerable regulatory uncertainty. Following on from this review a joint public consultation was conducted by Defra and the Welsh Assembly Government on proposals for changes to the contaminated land regime. The consultation closed on Tuesday 15 March 2011. A summary of consultation responses is available:

• Summary of consultation responses on changes to the contaminated land regime under Part 2A of the Environmental Protection Act 1990 (PDF)
• Consultation: Changes to the contaminated land regime under Part 2A of the Environmental Protection Act 1990
• Final version of the Contaminated Land Statutory Guidance, as laid in draft in Parliament on 7 February

Contaminated land legislation

• Part 2A of the Environmental Protection Act
• Statutory guidance - The statutory guidance can be found at Annex 3 of Defra Circular 01/2006.  It forms part of the Part 2A legal regime.  It elaborates on various aspects of the Act, including the definition of “contaminated land”; identification and remediation; and liability for who pays for remediation.  Please note the guidance is under review.
• Contaminated Land (England) Regulations 2006. The regulations elaborate on various details of the Part 2A regime, such as dealing with issues like what qualifies as a “special site”; public registers; remediation notices; and the rules for how appeals can be made against decisions taken under the Part 2A regime.

Enquiries

• Enquiries on Defra policy should be directed to:  Contaminated Land Team, Defra, Area 3C, Nobel House, 17 Smith Square, London SW1P 3JR.  Tel: 0207 238 5280.  Email: contaminatedland.enquiries@defra.gsi.gov.uk
• Enquiries relating to particular sites should be made to the relevant local authority contaminated land officer.
• Enquiries on the Contaminated Land Capital Grants Programme (to which local authorities can apply to help fund the investigation and remediation of sites) should be referred to the Environment Agency.
• Enquiries on land contamination issues in Scotland, Wales and Northern Ireland should be directed to the relevant local authority or devolved administration.