What causes contamination in the ground and why should we clean it up?
Contamination (pollution) of land can arise as a result of past poorly regulated industrial and waste disposal activities carried out with little regard for the environment, as well as illegal dumping and accidental spillage of substances. In some instances contamination may be natural rather than man-made. Some of the more common contaminants include oils and fuels, domestic and industrial waste, heavy metals and solvents. Where contamination is found to be significant, it needs to be cleaned up to minimise the harm it could cause of people and the environment in general.

What work are we doing under the new legislation Part IIA, Environmental Protection Act 1990?
The new legislation requires the Council to proactively identify contaminated sites that are not suitable for their current use. The Environmental Protection Unit (EPU) carries out these statutory duties. If necessary, the EPU has enforcement powers to get the sites cleaned up. This runs along side our Planning and Building Control consultation duties, which we continue to undertake to ensure redevelopment of a site does not lead to the site being identified as contaminated land.

What is the legal definition of ‘contaminated land’?
The Environmental Protection Act 1990 introduced a legal definition of ‘contaminated land’ for the first time. Section 78A of the Act states that: ‘Contaminated land’ is 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: significant harm is being caused or there is a significant possibility of such harm being caused; or pollution of controlled waters is being, or is likely to be, caused. Due to recent amendments where contamination is due to radioactivity, harm or significant possibility of harm is limited to human receptors only at present.

Will all polluted sites be legally determined by the council to be ‘contaminated land’?
Not necessarily.

For the Council to legally determine a site as ‘contaminated land’ all of the following must apply:

  • there must be one or more contaminating substance present in a significant quantity (called the source)
  • there must be one or more specified receptors present (these can be people, animals, plants, rivers, underground water resources or buildings)
  • there must be at least one plausible pathway by which contaminant can reach the receptor such as skin contact or inhalation of vapours (forming a Pollutant Linkage)
  • there must be a significant possibility that the Pollutant Linkage could lead to significant harm to one or more receptors.

For radioactively contaminated land only harm to human health receptors is considered at present.

Does Part IIA contaminated land legislation apply to me?
The contaminated land regime has implications for those who have caused or knowingly permitted land to be contaminated or who own, occupy or intend to purchase or sell land that is contaminated.

Is brownfield land ‘contaminated land’?
Not necessarily.

Brownfield is a term often used to describe previously developed land. Most land that has been previously developed for industrial purposes will have some contamination on it, but not all will meet the definition of contaminated land under Part IIA.

What are the Environment Agency’s responsibilities under Part IIA?
For some sites known as ‘special sites’, which includes sites affecting rivers, aquifers and water supplies, have radioactive substances on site or are former Ministry of Defence land, the EPU will carry out the initial work to identify the site as ‘Contaminated Land’ and consult with the Environment Agency about designating the site as a ‘special site’. The remediation (clean up) of ‘special sites’ will be enforced by the Environment Agency as set out in the Part IIA Guidance Document. For more information you should contact the relevants Council’s Environmental Protection Unit.

How could ‘contaminated land’ investigations affect me?
You may be affected by investigations if you own land, occupy land, are a tenant of land, or operate a process on land that the Council has reasons to believe may be contaminated. The Council will have already carried out some preliminary investigation work to determine the likelihood of contamination at the site and will inform all those who may be potentially affected by inspections, intrusive investigations and possible remedial works well in advance of them taking place.

How long does it take to determine if land is contaminated and carry out any necessary remedial (clean up) works?
It is difficult to predict how long it will take to determine a site and to carry out any remedial works as this is likely to vary from site to site. Based on a number of sites that have been investigated throughout the country, time scales have varied from approximately one to five years, with some sites being investigated over longer periods before a decision is reached on whether or not it requires remediation (clean up).

Who pays for the clean up of ‘contaminated land’?
The Council will pay the cost of investigation into the contaminated status of the land under Part IIA by applying for a government grant. In the case where remedial works (clean up) are needed to prevent harm due to unacceptable risks, other parties may have to meet the costs, such as the original polluter of the land, where they can be found, or the current owner or occupier of the land.

I think my site may be contaminated, what can I do?
You should contact the Council’s Environmental Protection Unit, who will consider if the land is causing an immediate risk to receptors and if the problem can be dealt with under another regime other than Part IIA. In the case of a brownfield site (previously developed land), if you are the landowner you may wish to get specialist advice on the investigation and clean up of the land from private consultants and carry out voluntary remediation of the site under the planning regime.

I have a contaminated land condition on my planning approval, what do I do?
If you have made a planning application relating to a development that is on or close to a former landfill site or other industrial area, you may have a contaminated land condition attached to your planning permission. A condition is attached in circumstances where we feel that special precautions and contamination remediation works are likely to be required to ensure the development can be implemented with adequate regard for environmental and public safety.

I have a gas condition or gas informative on my planning approval, what do I do?
A gas condition or gas informative will be used where the application site is near a former/current landfill site, infilled pit or other ground conditions which may result in the generation of ground gas. The main gases of concern are methane and carbon dioxide, which are generated in some landfill sites and also in natural ground in varying quantities as a result of bacteria breaking down organic matter.

How can I find out if my home or the home I am buying is on ‘contaminated land’?
Your solicitor can conduct an environmental search on your behalf consulting various agencies including the Local Authority about information on the land in question. You could use one of the private commercially available search companies to carry out the work for you. Their websites often allow for a basic search to be carried out for free online, but charge for a more detailed report, including further enquiries to Local Authorities.

What do I need from a developer if I am buying a new house on a development, which has had Contaminated Land conditions attached as part of its planning approval?
A remediation certificate produced by the consultant or expert on behalf of the developer stating how the site has been remediated to a ‘suitable for use’ standard. Where this is not available, copies of the remediation reports should be available from the developer.

Who is responsible if things go wrong due to contamination?
Under the Planning regime, 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. The council does not accept liability.

When is land classed as contaminated?
For land to be classed as contaminated it will need to meet the official definition of contaminated land. This definition relies on terms such as ‘significant possibility’ of ‘significant harm’ being caused by substances in, on or under the land and therefore it is crucial to define what ‘significant’, ‘possibility’ and ‘harm’ mean for a specific site and situation. Statutory guidance has been issued regarding this definition.

How can I tell if the land is contaminated?
To tell if a plot of land meets the official definition requires an assessment by a professional consultant who will need to instigate a staged assessment in accordance with government guidance.  Not all the stages (desktop study, Phase 1, Phase 2, etc) may be needed and as soon as sufficient information is obtained, the assessment can stop. It is very important to carefully examine historical maps, environmental data and survey information in order to both avoid liability and reduce assessment costs.

In addition, land which is currently classed as not contaminated with respect to its current use may be deemed contaminated by the development itself and the future use. The assessment process should therefore, if required, project the current site data into future use scenarios to assess potential liability and options for remediation.

Who has a duty of care in contaminated land issues?
The original polluter of land is officially the person responsible for liabilities relating to land contamination. This person will in many cases never be found and it is therefore the new owner who will be responsible. Consequently it is essential that the person responsible for undertaking the property purchase or development understands the degree of risks and potential financial implications.

The owner will need to assess and remediate the land if needed. The owner is responsible for ensuring the regulators receive information as required and in a format dictated by the guidance.

Generally, the Local Authority is responsible for identifying and deciding on necessary action in relation to contaminated land in its area. In specific cases a Contaminated Land Officer will advise the Planning Department as to any conditions within planning permissions.

The Environment Agency advises on issues relating to controlled waters and will act as a consultee to both the local authority and those involved in assessing land.

How can contaminated land affect the development process?
Quite simply it can halt a project all together. Not dealing with contaminated land in accordance with the guidance will delay planning permission and could threaten the whole viability of the project.

What are the consequences of a breach of contaminated land regulations?
Consequences of not complying with the legislation can result in serious financial costs, fines and in some cases imprisonment.

How can contaminated land be dealt with?
Solutions to contaminated land can range from the relatively simple, such as:

  • change the end use, e.g. from residential to commercial
  • increase the depth of concrete in a building foundation slab
  • place a fence around the site

to more complex remediation solutions, such as:

  • vapour extraction of hydrocarbons
  • bio-pile remediation of organics
  • phyto-extraction of metals by plants.