Contaminated land is land which, because of substances in, on or under it, presents a significant possibility of significant harm to human health or other specified receptors. Contamination, and even the possibility of contamination, is also a barrier to the fulfilment of broader regeneration policies which favour bringing pre-developed (‘Brownfield’) sites back into beneficial use in preference to the development of ‘Greenfield’ sites.
An estimated 300,000 hectares of land in the UK are affected to some degree by contamination left by industrial activity. The contamination may be caused by leaks and spillages from pipes or tanks, by the disposal of waste materials on the site, by the demolition of buildings containing toxic elements such as asbestos or by any number of other processes or activities that occurred while the plant was operating or while it was being closed down. Land may also be considered ‘contaminated’ because it contains naturally occurring substances such as metals or gases at levels that are harmful to health if ingested, inhaled or touched.
The legal framework
Great Britain has a comprehensive legal framework for protecting public health from the effects of historically contaminated land. Administered by local authorities, the most important piece of legislation is Part 2A of the Environmental Protection Act 1990 as amended in 2006 to take account of radioactively contaminated land. That is augmented by Statutory Guidance last revised in England and Wales in April 2012. The CIEH believes the latest Guidance has reduced the degree of health protection provided by the regime, under which local authorities have a duty to inspect their areas to detect any land which ought to be ‘determined’ as ‘contaminated’ and to require its remediation by appropriate means.
That may be by removal of the pollutant, by containing it or breaking the pollutant linkage in some other way, the cost of which is borne, ideally, by the original polluter but where he cannot be found, by the current owner or, in default, by the local authority.
The EU Environmental Liability Directive 2004/35/EC, implemented by way of the Environmental Damage (Prevention and Remediation) Regulations 2009 now supplements the 1990 Act to prevent and remedy newly-occurring environmental damage including ‘land damage’ which presents a threat to human health. Accumulations or deposits of matter which are likely to cause injury to health or are a nuisance may in some circumstances be a ‘statutory nuisance’ within the meaning of Part 3 of the 1990 Act.
The majority of contamination is nevertheless found in the course of voluntary development of sites by their owners and cleaned-up as a condition of planning consent to a standard ‘suitable for use’, in general (taking a long-term view) higher than that which can be required under Part 2A. In addition, the Building Regulations require reasonable precautions to be taken to avoid danger to health and safety caused by contaminants in ground to be covered by buildings and associated ground.