Section 1

Introduction

For some time the Government has been considering how best to deal with the legacy of contamination left behind as a result of the Country's past industrial activity. It is a potentially large, complex and controversial problem, which is reflected in the amount of time that it has taken to devise a regime that is designed to deal with all the issues. Part IIA of the Environmental Protection Act 1990 sections 78, subsection A to YC (Inserted by section 57 of the Environment Act 1995) initiates a new regime for dealing with the issues surrounding contaminated land, and hopes to aid the government in meeting their target of 60% of all future buildings being built on previously developed land (brownfield sites). The new regime came into force on the 1st of April 2000 and imposed the duty of dealing with contaminated land on local authorities. As the enforcing body under the new regime the local authority must set out its approach to dealing with contaminated land in a written strategy. This document is the contaminated land strategy of Stevenage Borough Council. It contains key information for all those who feel they have an interest in or believe that they may be affected by contaminated land in Stevenage.

The new regime is significantly more comprehensive than anything required by previous legislation in that it deals with liability for the contamination of the land. The first attempt to deal with contamination was in the form of public registers of land (section 143 of the Environmental Protection act 1990). These were registers of land that had at some stage been subject to a contaminative use, and a list was produced by the government for all those uses that needed to be considered. These were intended to provide a means of alerting interested parties to the possible existence of contamination on a piece of land. The implementation of these registers was postponed in 1992 after preliminary trials and then withdrawn in 1993 because of concerns that the registers would cause property blight in some areas because of the limited scope of the information that was to be placed upon them. Under these registers, potentially contaminated sites were likely to be avoided by developers, giving the land a significantly reduced market value. This should not be the case under the new regime, as it addresses liability for any remediation that is required to return the land to a state that is suitable for use.

Relationship with other powers

The new regime attempts to deal with the legacy of contaminated land for a wide range of activities and therefore touches upon a variety of other areas. It is intended to be complementary to the planning regime in that contaminated land can still be dealt with by the use of planning conditions as part of the redevelopment process. The government's wish is that local authorities should take account of contamination or the potential for contamination both in preparing development plans, which set out their policies and proposals for future land use and development within their area, and in determining individual applications for planning permission (Footnote 1). Under the Town and Country Planning Act 1990, planning permission may be granted on condition that the site is remediated to the satisfaction of the local authority.

There are many situations where the new regime will have close links with other regimes, but may or may not be directly applicable. Reference should be made to the specific guidance in each case. These include, for example, as a result of an accident at a COMAH (Control of Major Accident Hazards Regulations) site, and harm attributed to radioactive substances.

Although sites which fall under these categories will not be dealt with by the new contaminated land regime they will need to be considered. For example, when considering the need to investigate a site, consideration should be given to whether the site may fall under the control of another regime. If it does, the responsibility for dealing with the site should be transferred to whichever agency has responsibility for it.

Government's objectives regarding contaminated land

The government's objectives with respect to contaminated land are to (Footnote 2) :

• Identify and remove unacceptable risks to human health and the environment;
• Seek to bring damaged land back into beneficial use;
• Seek to ensure that the cost burdens faced by individuals, companies and societies as a whole are proportionate, manageable and economically sustainable.

Government objectives regarding the new regime

The government's primary objectives for introducing the new regime are (Footnote 3):

• To improve the focus and transparency of the controls, ensuring that authorities take a strategic approach to problems of contaminated land;
• To enable all problems resulting from contamination to be handled as part of the same process;
• To increase the consistency of the approach taken by different authorities;
• To provide a more tailored regulatory mechanism, including liability rules that are better able to reflect the complexity and range of circumstances found on individual sites.

The Secretary of State has issued guidance to local authorities on the implementation of Part IIA. This comes in the form of a circular entitled 'DETR circular 02/2000, Environmental Protection Act 1990: Part IIA: Contaminated land'. The circular promulgates the Statutory guidance which is an essential part of the new regime and it sets out the way in which the new regime is intended to work by providing a summary of Government policy in this field (Footnote 4). It covers five distinct aspects of the new regime:

• The definition of contaminated land;
• The identification of contaminated land;
• The remediation of contaminated land;
• Exclusion from and apportionment of liabilities of the cost of remediation; and
• Recovery of the cost of remediation

1.2 General policy of Stevenage Borough Council

Stevenage Borough Council's mission statement is as follows:

'Council and community working together to improve quality of life'.

The procedure laid out in this strategy and the following extract from Stevenage Borough Council's district plan (which details the policy with regard to development on potentially contaminated land) supports this (Footnote 5):

7.4.15. Where development is proposed on sites that are, or suspected to be, contaminated, studies must be undertaken to identify the nature and extent of contamination. A remediation scheme should then be prepared if appropriate, to ensure that the site is suitable for the proposed use. Without these prerequisitions being met, it is unlikely that the Borough Council can make an informed decision on whether it is acceptable for a development proposal to be permitted.

7.4.16. The Borough Council will normally expect a site assessment and, if appropriate, a remediation scheme to be submitted before a development proposal is determined. However, where there is only a suspicion that the site may be contaminated or where evidence suggests that there may only be slight contamination, planning permission may be granted subject to conditions which require a site assessment to be undertaken and any remedial measures to be implemented before development commences. When considering the suitability of site assessments and remediation schemes, the Borough Council will refer to the Circular and consult other agencies with an interest such as the Environment Agency.

Policy EN 30: Contaminated land

Development proposals for the remediation and re-use of contaminated land will be encouraged.

A site assessment to establish the nature and extent of land contamination will need to be prepared where development is proposed on or near sites which are known to be contaminated or where there is good reason to believe contamination exists.

If a site assessment shows that land contamination exists, development proposals will only be permitted if an acceptable remediation scheme (making the site suitable for the proposed use) is prepared.

Stevenage Borough Council has signed up to the Cabinet Office Enforcement Concordat, which sets out good enforcement policies and procedures (Footnote 6). It states:

'The primary function of central and local government enforcement work is to protect the public, the environment and groups such as consumers and workers. At the same time, carrying out enforcement functions in an equitable, practical and consistent manner helps to promote a thriving national and local economy.'

Stevenage Borough Council is committed to these aims and to maintaining a fair and safe environment within a transparent regulatory regime.

1.3 Regulatory context

1.3.1 Role of local authorities under part IIA

The primary regulatory role of enforcement under part IIA rests with the local authorities, thus reflecting their existing functions under the statutory nuisance regime, and also complementing their roles as planning authorities (Footnote 7).

Section 78B provides that every local authority shall cause its area to be inspected from time to time for the purposes of identifying contaminated land.

The main roles of the local authority are (Footnote 8):

• To cause their area to be inspected to identify contaminated land;
• To determine whether any particular site is contaminated;
• To act as enforcing authority for all contaminated land that is not designated as a 'Special site';
• To establish who should bear responsibility for the remediation of the land;
• To decide, after consultation, what remediation is required in any individual case and to ensure that such remediation takes place;
• To determine who should bear what proportion of the liability for meeting the costs of the work; and
• To record certain prescribed information on a public register.

1.3.2 Regulatory role of the Environment Agency

The Environment Agency will have four principle roles with respect to contaminated land under part IIA (Footnote 9). It will:

• assist local authorities in identifying contaminated land, particularly in cases where pollution of controlled waters is involved;
• provide site-specific guidance to local authorities on contaminated land;
• act as the enforcing authority for any land designated as a special site*; and
• publish periodic reports on contaminated land.

*Part IIA (Section 78A(3)) creates a particular category of contaminated land called 'Special sites'. For any special site, the Environment Agency rather than the local authority is the enforcing authority for the purposes of this regime, although it is still the responsibility of the local authority to deem the land statutorily contaminated. If a site is identified as a 'special site' this does not mean that the land is in more likely to be contaminated than a site that is not special. The designation merely means that the Environment Agency is a more appropriate enforcing authority than the council - for example, where it has specific expertise in certain instance involving the pollution of controlled waters. Statutory instruments No 227, The Contaminated Land (England) Regulations 2000, provides a comprehensive list of previous uses that will cause the site to be deemed special. A summary of this list can be found in section 9.

1.3.3: Definition of contaminated land under part IIA:

Contaminated land is defined for the purposes of part IIA (Footnote 10) as follows: "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, 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.

The statutory guidance uses the concept of a 'pollutant linkage' - that is, the relationship between a contaminant and a receptor, by means of a pathway, to identify land as contaminated:

contaminant (source)

A substance which is in, on or under the land, and which has the potential to cause harm or to cause the pollution of controlled waters (Footnote 11);

receptor (target)

a living organism, a group of living organisms, an ecological system, controlled waters or a piece of property which is being or could be harmed by the contaminant (Footnote 12);

pathway

One or more routes or means by, or through which that receptor is being, or could be, exposed to, or affected by, that contaminant (Footnote 13).

Each one of these three elements must be present, for the land to be deemed contaminated under the new regime. Therefore, to remediate the land so that it is no longer contaminated, the new regime only requires that one element of the pollutant linkage be removed. This is remediation in its simplest form and there may well be, in practice, a number of pollutant linkages present at a site which all require different levels of assessment and different techniques of remediation when the problem is addressed. It should be noted that only harm being caused to the receptors specified in the guidance can be taken into account If contamination on a site is affecting some other receptor that it is not listed in the guidance, then the site cannot be deemed contaminated.

Thus, in order for land to be identified as contaminated under the new regime the local authority must be satisfied that both a pollutant linkage exists and that the pollutant linkage is either:

• resulting in significant harm to the receptor or presents a significant possibility of significant harm being caused to the receptor, or
• is resulting in the pollution of controlled waters, (which constitutes the receptor), or
• is likely to result in such pollution.

This definition of contaminated land is based on the assessment of risks to human health and the environment. Meaning that if there is no risk to the human health or the environment then the land cannot be deemed contaminated. The regime therefore reflects the 'suitable for use' approach and does not necessarily include all land where contamination is present.

The suitable for use approach consists of identifying land where contamination is causing unacceptable risks to human health and the environment, assessed on the basis of the current use and circumstances of the land, and returning such land to a condition where such risks no longer arise. The suitable for use approach may give rise to a situation where the same contaminant may be present at the same concentrations at two different sites but because the two sites are being used for different purposes, only one may be deemed contaminated. Levels of contamination are, for example, allowed to be higher on the land under a car park than the land used for an allotment. However, the one piece of land is only uncontaminated in the context of its current use, so if its use were to change, so may its status as regards contamination.

Within the suitable for use approach it is always open to the person responsible for a site to do more than can be enforced through regulatory action. For example, a site owner may plan to introduce at a future date some use for the land that would require more stringent remediation, and may conclude that, in these circumstances, it is more economic to anticipate those remediation requirements. In this case he/she may wish to carry out remediation to a higher standard than is legally required at the time (Footnote 1.14).

The one exception to the suitable for use approach to regulatory action applies where contamination has resulted from a specific breach of an environmental licence or permit. In such circumstances the government considers that it is generally appropriate that the polluter is required under the relevant regulatory regime to remove the contamination completely (Footnote 1.15).

1.3.4 Principles of risk assessment

The authority must inspect and identify its land on the basis of the assessment of risk. The definition of contaminated land is based upon the principles of pollutant linkages and risk assessment. Guidance issued by the secretary of state defines 'risk' as the combination of (Footnote 1.16):

• the probability, or frequency, of occurrence of a defined hazard; and
• the magnitude (including seriousness) of the consequences.

Risks assessments will include scientific and technical assessments of the information on a potential pollutant pathway and receptor, to prioritise sites according to the risk they pose. Those sites, which theoretically pose the greatest risk can then be addressed first (see section 1.3.6).

1.3.5 The appropriate person

The liability for the costs of remediation under the new regime will fall with a group of people known as the 'appropriate person'. There are different classes of appropriate person:

• Class A: Any person who caused or knowingly permitted the land to be contaminated
• Class B: The owner or occupier of the land

The enforcing authority

Liability for any costs will fall to the class A person. If the class A person cannot be found then liability falls to Class B. If neither of these classes of person can be found then the site becomes known as an 'Orphan site' and responsibility for the costs of remediation will lie with the enforcing authority.

1.3.6 Requirements for strategic approach

In carrying out its inspection duty under section 78B(1), the local authority will take a strategic approach to the identification of land which merits detailed individual inspection (Footnote 1.17). By taking a strategic approach, the inspection of the area will be carried out in a manner which:

• is rational, ordered and efficient;
• is proportionate to the seriousness of any actual or potential risk;
• seeks to ensure that the most pressing and serious problems are located first;
• ensures that resources are concentrated on investigating areas where the authority is most likely to find contaminated land; and
• ensures that the local authority efficiently identifies requirements for the detailed inspection of particular areas of land.

The authority must set out its strategic approach in its own individual strategy document. This strategy document will ensure that our duties as regulator under part IIA are met effectively. The strategy will also reflect the local circumstances, for example the extent to which information on land contamination as already available, and the history, scale and nature of industrial activities.

1.4 Objectives of the strategy document

• To demonstrate how the authority meets the criteria set out in the statutory guidance;
• To inform the public of the authority's intentions;
• To provide information to the Environment Agency for its report on contaminated land (Footnote 1.18.).

The document describes the basis on which this authority will inspect the land and how it will deal with the issues in a transparent and uniform manner. It informs all interested parties of what they can expect from the authority under part IIA and provides a reference document for those concerned with contaminated land in the area. It will also provide a reference document for those within the authority who are carrying out the prioritisation procedure so that it can be carried out in the correct manner.

1.5 Development of the strategy

This authority's approach was to appoint one officer within the Environmental Health Department dedicated to the drafting of the strategy and implementation of the new regime. In addition, a working group of officers representing authorities from the Hertfordshire and Bedfordshire Environmental Protection Group was established to draw together expertise from those responsible for the strategy in their specific authority. The terms of reference for this working group were agreed as:

'The contaminated land sub-group will develop a flexible framework, which may be applied or used by members of the Herts & Beds Environmental Protection Group (Part of the Herts and Beds Environmental Health Group) in respect of contaminated land; and seek to research, update and communicate any developments, cases or experiences in order to evolve the framework, being mindful of current guidance and legislation.'

Regular meetings of the group were held to discuss issues and general progress, and work was done to produce certain areas of the strategy that were common to all. At an early stage a link was set up with the Environment Agency with a specific contact within that authority to provide an important means of liaison when it was needed. As well as this, contacts were set up within the other departments within the home authority to provide internal support, expertise and the information necessary for the successful completion of the strategy. Similar consultation has been carried out with Hertfordshire County Council, English Nature, English Heritage, The Ministry of Agriculture, Fisheries and Food and the Food Standards Agency.

1. DETR website. Address: http://www.environment-agency.gov.uk/subjects/landquality/113813/?version=1&lang=_e
2. DETR circular, Annex 1, para. 7, p7. 
3. DETR circular, Annex 1, para. 26, p10.
4. DETR circular, para 3, p1. 
5. Stevenage Borough Council Avenue. 
6. Enforcement Concordat 
7. DETR circular, para. 35, p12. 
8. DETR circular, para. 35 and 36, p13.
9. DETR circular, Annex 1, para. 39, p13.
10. Section 78A(2), Environmental Protection Act, 1990.
11. DETR circular, Annex 3, para. A, p70.
12. DETR circular, Annex 3, para. A, p70
13. DETR circular, Annex 3, para. A.14, p70.
14. DETR circular, Annex 1, para. 14, p8
15. DETR circular, Annex 1, para. 15, p8
16. DETR circular, Annex 3, Chapter B, para. A.9, p70.
17. DETR circular, Annex 3, Chapter B, para, B.9, p79.
18. Inspection strategies advice note - draft for comment - April 2000.
    

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