Land Quality Policy
Land quality is covered by both UK and European legislation - to find out more click on the following links:
Contaminated Land Regime
Under Part 2A of the Environmental Protection Act 1990, also known as the Contaminated Land Regime, all local authorities in England, Wales and Scotland have a duty to identity any contaminated land in their area which poses an unacceptable risk to human health or the environment, and to ensure it is appropriately remediated. Part 3 of the Waste and Contaminated Land (Northern Ireland) Order 1997 makes similar provision for dealing with contaminated land in Northern Ireland, however a regime has not yet been introduced.
Part 2A of the Environmental Protection Act sets out a legal definition of contaminated land – any land where substances in or under the land mean that it is actually or potentially hazardous to health or the environment, or where significant pollution of controlled waters is actually or potentially being caused.
All local authorities are required to draw up a contaminated land strategy, setting how they intend to identify and remediate potential problem sites. Most local authorities have prepared strategies and have started work on identifying potential sites.
In August 2006 Part 2A was extended to cover radioactively contaminated land.
Environment Agency and Scottish Environment Protection Agency
Any 'Special Sites' identified under Part 2A are referred to the Environment Agency or Scottish Environment Protection Agency (SEPA), who are then responsible for ensuring remediation is carried out. Special sites include sites owned by the Ministry of Defence, land contaminated by certain industrial activities or radioactive substances, nuclear sites, and contamination affecting rivers, groundwater and drinking water supplies.
The Environment Agency and SEPA also have other roles relating to contaminated land, covering soil protection, water pollution and waste management. They are also responsible for monitoring the state of the environment, and issuing permits under the Integrated Pollution Prevention Control (IPPC) Regulations, which control emissions to land.
Progress Under Part 2A
The Environment Agency published their report Dealing with contaminated land in England and Wales: A review of progress from 2000-2007 with Part 2A of the Environmental Protection Act in February 2009, which provides an update on progress on how councils are dealing with contaminated land.
SEPA published the first report looking at the extent of contaminated land and potentially contaminated land in Scotland in May 2009. The report Dealing with Contaminated Land is the first of its kind and examines the progress made under the contaminated land regime since it was introduced in 2000 as well as under the planning system and through voluntary action.
Related Documents:
Back to top
Remediation
If land is found to be contaminated, local authorities must ensure that it is restored to a state in which is it "suitable for use". This will be determined by how the land is currently being used. For example, more rigorous clean up targets will be required for domestic gardens than for a site with industrial warehouses on it, as the risks of individuals being in contact with the contamination is likely to be greater. The clean up targets will also consider any risks to the environment, particularly watercourses and groundwater.
The Contaminated Land Regime, or Part 2A, works on a 'polluter pays' principle – therefore once a contaminated site has been identified, the polluter, landowner, or any other responsible persons (including domestic property owners) may become responsible for the costs of remediating the site. Part 2A is aimed at encouraging voluntary remediation through agreement between the local authorities and the person responsible; however, local authorities have powers to issue a remediation notice if agreement is not possible.
For sites where owners cannot be traced, where the Council owns the land, or where owners cannot afford to pay for remediation, local authorities can apply for funding from the Government's Contaminated Land Capital Fund to cover the costs of remediation.
All regulatory actions carried out in relation to the remediation of contaminated land under Part 2A, are recorded on a Public Register.
Back to top
Waste
During remediation, contaminated soil can be treated on site so it no longer presents a risk to human health or the environment and then reused. However, if the soil is being removed from the site, either to be disposed of because it presents a risk to human health or the environment, or to be reused elsewhere because it is not needed, then it must be dealt with according to Waste Management Licensing Regulations.
The Environment Agency and SEPA have published guidance on dealing with waste from contaminated sites.
Back to top
Planning and Development Control
Contaminated land is also addressed through the planning system. Local authorities must take into account the actual (or potential) presence of contamination when preparing development plans or when considering a planning application for a site where contamination is known or suspected. Unlike the Contaminated Land Regime, the planning system must consider proposed future use of the land, as well as the current use.
Annex 2 to Planning Policy Statement 23, Planning Policy Statement: Planning and Pollution Control provides guidance for the development of land affected by contamination in England. It explains the relationship between planning and Part 2A of the EPA, and provides advice on the need to consider possible contamination at all stages of the planning and development process, and on the use of planning conditions to ensure appropriate investigation, remediation, monitoring and record keeping.
Where contamination is suspected, the developer is responsible both for investigating the land to determine what remedial measures are necessary to ensure its safety and suitability for the purpose proposed, and for carrying out and meeting the costs of any remediation work.
In Scotland, Planning Advice Note 33 on the development of contaminated land provides advice for planning authorities on identifying, assessing and developing contaminated land, including planning approach, powers, duties and financial assistance.
Meanwhile Planning Policy Wales provides general guidance for local authorities on developing contaminated land in Wales.
Building Regulations
Building work is regulated under the Building Regulations 2000 by local authority or other approved inspectors. Under these, the functional requirements for design and construction are set out. Schedule 1 C2 requires that "reasonable precautions shall be taken to avoid danger to health and safety caused by substances found on or in the ground to be covered by the building". Approved Document C sets out more detail of the approach to contamination.
Back to top
Risk Assessment
The backbone of assessing risks from land contamination is the "source, pathway, receptor" model and whether there is an unacceptable risk. If there is a source of contamination, there is only a risk if there is a tangible pathway which links the contamination to a human or other receptor, such as controlled waters. Pathways can be underground, or they can be through the air or physical contact with contamination. It is not just people and water that can be affected by contamination, plants and animals can be affected, as well as certain building materials in the case of particularly aggressive chemicals.
Contaminated Land Exposure Assessment (CLEA)
CLEA is a scientifically based package of non-statutory risk assessment UK guidance, published by Defra and the Environment Agency, which is aimed at helping local authorities, developers and other parties assess the risks to human health from land contamination. It includes a series of Contaminated Land Reports (CLRs) and a software tool. Although it is published by the Environment Agency (which covers England and Wales), it is also valid to use in Scotland.
The CLEA software tool is based on information about the toxicity of soil contaminants and the predicted exposure levels of humans coming into contact with the land. It is aimed at helping land quality practitioners develop assessment criteria for contaminated land, either generically or on a site specific basis. The latest version of the CLEA software package waspublished inJanuary 2009, following a number of revisions and a three month evaluation by the Environment Agency.
CLEA also enables assessment criteria to be developed where no government approved Health Criteria Values (HCVs) or Soil Guideline Values (SGVs) are available.
Health Criteria Values
HCVs are based on toxicological data and intake values for humans for contaminants found in soil and are set out in a series of toxicological (TOX) reports on individual contaminants. They are used in the development of SGVs and Site Specific Assessment Criteria.
Soil Guideline Values
SGVs are Generic Assessment Criteria which are set out in a series of SGV reports for individual contaminants. They represent the concentration of a contaminant in the soil at or below which human exposure can be considered to represent a tolerable or minimal level of risk. If an SGV is exceeded there may be risk to land users and further Detailed Quantitative Risk Assessment and/or remediation may be required.
The Environment Agency are in the process of publishing revised SGVs. The first six new SGVs were published in March 2009, along with the associated TOX reports. Further SGVs and TOC reports are expected to be published by the summer of 2009. Further details are available on the Environment Agency website.
Back to top
Brownfield Land
The Government has a target to build at least 60% of new housing on brownfield sites. Although not all brownfield land is contaminated, encouraging the redevelopment of such sites will increase the amount of contaminated sites that are cleaned up.
National Brownfield Strategy
The Government adopted the National Brownfield Strategyin March 2008, which was developed by English Partnerships (now the Homes and Communities Agency). Although the recommendations included in the Strategy relate to England, the recommendations have implications for the whole of the UK.
The Strategy includes four strands, setting out nine policy proposals:
- Strand One -Identifying, assessing and preparing brownfield land for reuse, to ensure an adequate supply of land when it is needed
- Strand Two - Safeguarding the environment and ensuring appropriate levels of regulatory control, to ensure the effective and efficient reuse of land
- Strand Three -Enhancing communities through the removal of blight and by ensuring the long-term maintenance of restored land, contributing to sustainability
- Strand Four -Accreditation and skills, by meeting the need for appropriately qualified and experienced practitioners, with the public, private and voluntary sectors working together to disseminate best practice
Brownfield Skills
Strategy
As part of Strand Four, in March 2008 the Academy for Sustainable Communities (ASC) and English Partnerships published a consultation on a Brownfield Skills Strategy. The final strategy is expected to be published during 2009. Read our response to the consultation.
Tax Incentives
The Government issued a consultation on tax incentives for developing brownfield land in March 2007, include reforming Land Remediation Relief to encourage more development of hard to remediate sites and for waste from remediated sites to be exempt from Landfill Tax. Read our response here.
Following this, Government consulted on draft legislation extending Land Remediation Relief, aimed at providing relief for expenditure on specified work on long term derelict land and refocusing the relief on contamination by industrial activity. The consultation closed on 27 February 2009.
Back to top
Environmental Liability
Following consultations on the Environmental Liability Directive, Environmental Damage (Prevention and Remediation) Regulations 2009 come into force in England on 1 March 2009. Separate Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 came into force on 6 May 2009, Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009 came into force on 25 July 2009, and Environmental Liability (Scotland) Regulations 2009 came into force on 24 June
2009.
In addition, England and Wales published statutory guidance in May 2009.
The Regulations implement the EU Directive on Environmental Liability and are based on the 'polluter pays principle' -placing a duty on the operators of economic activities to prevent and remedy 'environmental damage'.
The Regulations apply to three types of 'Environmental Damage'
- Adverse effects on the integrity of Sites of Special Scientific Interest (SSSI) or on the conservation status of species and habitats protected by EU legislation
- Adverse effects on surface water or groundwater consistent with deterioration in the water's status (as defined in Water Framework Directive)
- Contamination of land that results in a significant risk of adverse effects on human health
Further details are available on the Defra website.
Back to top
Useful Links