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.
Related Documents:
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.
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.
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.
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.
CLEA UK is a computer software tool 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. CLEA UK is currently under revision and a new version is due to be published by the Environment Agency in 2008.
CLEA UK also enables assessment criteria to be developed where no government approved Health Criteria Values (HCVs) or Soil Guideline Values (SGVs) are available.
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.
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.
Defra published a consultation on SGVs Soil Guideline Values: the way forward in November 2006, which set out proposals to improve SGVs. Read our response to the document. Conclusions and a timetable of outputs are expected to be published soon.
Brownfield Land
The Government set a target for 60% of new housing to be built on brownfield sites by 2008. This target has already been achieved but with increasing demand for new housing in the UK the Government are considering further measures to encourage the reuse of previously developed land. Although not all brownfield land is contaminated, encouraging the redevelopment of such sites will increase the amount of contaminated sites that are cleaned up.
In 2003 the Government and English Partnerships began work to develop a National Brownfield Strategy for England. In May 2007 English Partnerships published their National Brownfield Strategy: Recommendations to Government which set out what should be considered in the development of a Strategy and what kind of policy measures it should include. The strategy was formally adopted in March 2008 inthe Government response to the
recommendations.
Although the recommendations relate to an English Strategy, the recommendations will have implications for the whole of the UK.
In March 2008 the Academy for Sustainable Communities (ASC) and English Partnerships published a consultation on a Brownfield Skills Strategy. Read our response to the consultation, and the summary of responses.
Tax Incentives
The Government are also currently consulting on tax incentives for developing brownfield land. Their proposals, published 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.
Integrated Pollution Prevention Control
Contamination of land is also covered under the Integrated Pollution Prevention Control system, which is a permitting system for industrial activities that have the potential to cause pollution.
When applying for a permit to operate an IPPC installation, applicants are required to describe the condition of the site in the form of a site report as part of the permit application. This site report should cover all of the land on which any of the activities of the installation may take place, including any land which is integral to the operation of the installation. For example, areas needed for the movement of materials by vehicles or other means, and the area around associated pipe work. IPPC does not consider whether the condition of the site is acceptable, it is intended to establish a reference against which any deterioration in condition can be assessed, in particular when a permit it surrendered. The regulatory authority can require clean-up at the site to its previous
state.
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