Contaminated Land

Legislation

Under Part IIA of the Environmental Protection Act 1990, Local Authorities in England are given responsibilities for regulating contaminated land. Part IIA came into force in April 2000.

There are two main parts to the local authority's duties under Part IIA an inspection function and an enforcement function.

It is a statutory requirement that each Local Authority publish a strategy for carrying out inspection of its area to identify land that may be contaminated. The strategy deals principally with the inspection function, showing how we will inspect its area for contaminated land, identify contaminated land and manage the information that it collects in the process.

The purpose of the contaminated land legislation is to ensure that historically contaminated land is cleaned up in such a way that it is safe, suitable for a beneficial use, and does not pose a risk to health or the environment.

Prevention of new contamination is dealt with by different legislation, for example the Pollution Prevention and Control regime and the Waste Management Licensing system.

What is contaminated land?

In general terms, contaminated land usually means land where industrial or other human activities have resulted in the presence of substances in the ground with potential to cause harm to human health, structures, or the environment. However, in English law the term "contaminated land" means something more specific than this.

The duties and powers of Local Authorities extend only to land that falls within the statutory definition of contaminated land enforcement action cannot be taken where land is not legally "contaminated land". The definition of contaminated land from the Environmental Protection Act 1990, Part IIA, Section 78A (2) 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 (a) significant harm is being caused or there is a significant possibility of such harm being caused; or(b) pollution of controlled waters is being, or is likely to be, caused."

The meanings of the terms within the definitions are important. The statutory guidance gives quite detailed explanations of what each term in the definition means.

Contaminated land and planning

Land contamination, or the possibility of it, is  a material planning consideration in taking decisions on planning applications. Where development is proposed on a site which is known, or has the potential to be affected by contamination, a preliminary risk assessment shall be undertaken as the first stage in assessing the risk.

Preliminary risk assessments and any subsequent additional information shall be carried out in accordance with the Yorkshire and Lincolnshire Pollution Advisory Group (YALPAG) Document 'Development on Land Affected by Contamination supported by YALPAG 'Verification Requirements for Cover Systems  and YALPAG 'Verification Requirements for Gas Protections Systems, or successor documents.

Further information on the contaminated land regime can be found on DEFRA's website.