Contaminated Land

What is contaminated land?

Contaminated land in the UK has largely arisen as a result of historic industrial activities and past waste disposal practices. In the past, legal controls and standards within industry were not as high as they are today. In a lot of cases, this has resulted in the ground being polluted by the wastes and materials from the industrial activity. There are some pollutants which are naturally occurring and these are also considered under this legislation.

Contaminating substances may include:

  • Metals/metallic compounds, e.g. cadmium, arsenic, lead, nickel
  • Organic compounds, e.g. oils, petrol, solvents, fats
  • Gases, e.g. methane, carbon dioxide, hydrogen sulphide

For a site to be contaminated, a 'significant pollutant linkage' must always exist.

The three components listed below must always be present to create a pollutant linkage:­

  • Source - the contamination in, on or under the land
  • Pathway - route by which contamination reaches the receptor
  • Receptor - broadly defined as living organisms, ecological systems or property.

A pollutant linkage is where there is:

Source             →                                Pathway                      →                                Receptor

 

Source of contamination →  The contamination can reach the receptor →  Someone or something could be affected by the contamination

 

If all three stages of the pollutant linkage are satisfied, the land can be formally determined 'contaminated land' and the details will be recorded in the Public Register. If one or more of the stages is missing then the land cannot be determined as 'contaminated land'.

If there is a break in this pollutant linkage (i.e. there is a source and a receptor, but no pathway) the site cannot be defined as 'contaminated land'.

However this does not mean all land with a past industrial use will be contaminated. Land may have pollutants in, on or under it but they may not be capable of causing unacceptable risks to human health or the environment. We believe that while many former industrial or tipped sites have a potential for contaminants to be in the soil, the majority will remain outside the scope of the legislation.

For us to declare land as contaminated it must meet the Statutory contaminated land definition which is defined within Part 2A of the Environmental Protection Act 1990, as being:

"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:

  1. significant harm is being caused or there is a significant possibility of such harm being caused; or
  2. pollution of controlled waters is being, or is likely to be caused."

 

Contaminated Land Public Register

When land has been identified as being contaminated then the details involved in dealing with that issue are held on a public register, as prescribed by part 2A of the Environmental Protection Act 1990. It is available from Marmion House during normal working hours.

The register is intended to act as a full and permanent record of the regulatory action taken by the enforcement authority in relation to the remediation of contaminated land.

It contains a record of all contaminated land sites with the following information:

  • Remediation Notices
  • Remediation Declarations/Statements
  • Appeals against Notices
  • Designation of special sites
  • Notification of Claimed Remediation
  • Convictions for Offences

To date no sites have been formerly determined as contaminated land in Tamworth.

 

How we deal with contaminated land      

Our responsibilities

We have a regulatory role aimed at controlling threats to health and to the environment from land contamination.

Every local authority is required to:

  1. inspect areas to identify contaminated land
  2. establish responsibilities to remediate the land through agreement with those responsible, or if not by serving a remediation notice or carrying out work ourselves
  3. keep a public register of regulatory action taken under part 11a of the Environment Protection Act 1990

There are two main routes by which contamination of land is dealt with:

  1. Planning and Development Control; and
  2. Part II A of the Environmental Protection Act, 1990.

Planning and Development Control

The potential for land contamination is a material planning consideration for the purposes of the Town and Country Planning Act 1990.

Dealing with contaminated land through the Development Control process is an important role in identifying and restoring any contaminated land.

The Government's position is that redevelopment is the most appropriate and cost effective time to address the issue of land contamination. Requirements for site investigations and restoration identified in relation to development control will be dealt with under planning legislation as opposed to the Part II A Contaminated Land Regime.

We are increasingly dealing with planning applications for developments on previously used land often referred to as 'brownfield land'. In many cases these sites are affected by the presence of contamination due to historic industrial processes.

To ensure safe development, all planning applications are considered for potential contamination. If there is a potential that the land could be contaminated, recommendations will be made to the planning officer advising that planning conditions be imposed if the application is approved.

It should be noted that it is the responsibility of the developer to ensure that a development is safe and 'suitable for use' for the purpose for which it is intended

What happens if land is identified as contaminated outside of the planning process?

The regulator will contact whoever they believe is 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 can be served to make sure the land is cleaned up. There must be at least three months between the times anyone thought to be responsible is contacted and served with a notice.

Who will pay to remediate contaminated land

The regime follows the 'polluter pays' principle. Any person, organisation or business might be liable to pay for costs of remediation of contaminated land under Part 11a of EPA 1990. This would be if they caused or knowingly permitted contamination. If we cannot find any polluter, the land's owner or occupier may become responsible for clean-up costs. Regulators must take into consideration several reasons for excluding people from paying for remediation, including hardship.

 

Contaminated Land Strategy

In order to fulfil the obligations under the legislation, Local Authorities have published Contaminated Land Strategies.

The main objectives of the Strategy were to:­

  • Identify and record all sensitive receptors
  • Identify and record sites that have the potential to be contaminated
  • Assess whether a pathway exists between the potential source and receptor
  • If a potential pathway exists, carry out a further detailed inspection of the site.