Cleaning up the contaminated land regime

The contaminated land regime, contained in Part 2A of the Environmental Protection Act 1990, is being overhauled.

Revised guidance and regulations are before parliament and (assuming they are accepted), will come into force on 6 April.

The changes are important to the building industry because one of the methods used to deal with historic contamination is through the planning system. Changes on how authorities decide when land is and isn’t contaminated will, therefore, impact the development process.

The changes will bring more focus on high-risk sites, and it is hoped that local authorities will be able to more easily dismiss low-risk sites, resulting in a quicker (and thus cheaper) decision-making process. This is good news for developers as delays can have big financial implications. In addition, some sites currently considered contaminated and therefore too costly to remediate/develop, may, under the new regime, become viable.

Changes of particular note are:

• Authorities are only to designate land as contaminated if no appropriate alternative exists (for example, dealing with the contamination under the planning regime).
• A new four category test is to be introduced to assist in identifying when land is and is not “contaminated land”. The categories range from low risk (category 4 - not contaminated) to high risk (category 1 - clearly contaminated).
• Clarification that the presence of “normal” background levels of contamination will not result in the land being contaminated.
• Clarification of the status of technical screening levels - soil guideline values and generic assessment criteria - and how to use them. Soil guideline values and generic assessment criteria can be used to indicate when land is likely to be well into category 4, but not as “one size fits all” remediation targets. It is hoped this will reduce the amount of unnecessary remediation that takes place.
• Where an authority has determined that a site is likely to be contaminated, mandatory risk summaries will be publicly available, which should help those wishing to challenge the decision.
• Local authorities will be able to decide whether a site is contaminated or not based on information provided by the landowner or other parties.
• Designation of a site as contaminated can be postponed if the landowner or another party undertakes to deal with it.
• Clarification on what constitutes a “reasonable” level of remediation.

There is no doubt that, on the face of it, these changes appear to be good news for the building and construction industry. The new rules are slanted in favour of the industry and should make it easier for brownfield sites to be developed.

There could be around 300,000 hectares of land in England and Wales where past activities could have led to contamination

According to the government’s impact assessment issued as part of the consultation on the changes, it is estimated that there could be around 300,000 hectares of land in England and Wales where past activities could have led to contamination (about the size of Greater London and Birmingham combined). So the new guidance - especially on how to assess whether such land is “contaminated” in the legal sense - is not of merely academic interest.

However, not everyone is pleased. Mary Creagh, the Labour shadow environment secretary, is opposed to the proposed changes and the Chartered Institute of Environmental Health argues that more detail is needed; they are concerned that the new guidance could lead to more sites being developed but with less regard for health protection.

The practical effect of the changes will, of course, depend on the way in which local authorities implement the new regulations and guidance when determining individual cases.
It also remains to be seen how much influence the Chartered Institute of Environmental Health may have on the passage of the new guidelines and regulations through parliament.

Andrew Casstles is a partner at Penningtons Solicitors