Contaminated land strategy

1.1 Background to the Legislation

The industrial revolution and its impact on the demographic and spatial distribution of people in the United Kingdom resulted in an unprecedented change in land use patterns. In the latter half of the 20th century the character of the UK economy shifted significantly, albeit gradually, away from industrial production to a more service-based economy. Inevitably, these changes and others, for example the type and volume of waste that is sent to landfill, have left behind a legacy of land that has been contaminated with harmful substances which may pose a risk to the environment (human, animal, natural and built). This gave rise to a need for a regulatory framework by which land affected by contamination, which was adversely impacting the environment, could be remediated for the benefit of the environment and where vacant brought back into beneficial use. The current and projected need for homes has placed renewed pressure on local authorities to reuse land in urban areas and this provided an additional impetus for the rehabilitation of historically contaminated land.

1.2 Regulatory & Policy Context

The contaminated land statutory framework is the principal driver for requiring an up-todate Contaminated Land Strategy. The legislation in question is Part 2A of the Environmental Protection Act 1990 (Part 2A EPA 1990), which was introduced by Section 57 of the Environment Act 1995. This is supported by the Contaminated Land (England) Regulations 2006 (amended 2012) and statutory guidance. The legislation and guidance states that local authorities should cause their areas to be inspected from time to time with a view to identifying contaminated land. There should be a strategic approach to this, and it should be detailed in a written contaminated land strategy, which should be kept under periodic review. The Contaminated Land Strategy has been prepared in the context of the Council’s vision and corporate priorities with the intention of being accountable, proud of our environment, enabling an economy that delivers, providing high quality homes and plan for future homes in the right places.

1.3 Roles and Responsibilities

The primary regulator of the contaminated land regime is the local authority. The delivery of the regime is the responsibility of officers within the Environmental Health Team. For the Council the strategy will be under the control of the Assistant Director (Public Realm).

The role in broad terms is:

• to cause the area to be inspected to identify potentially contaminated sites; 
• to determine whether any such site is contaminated (by definition); 
• to determine whether any such land should be designated a ‘special site’; and 
• to act as enforcing authority for contaminated land not designated as a ‘special site’.

The Environment Agency also has three main roles:

•  to assist local authorities in identifying contaminated land (particularly where water pollution is involved);
• to provide site specific guidance to local authorities on contaminated land where requested;
• to act as enforcing authority for contaminated land designated a ‘special site’

 Where the presence of contaminated land has been confirmed the enforcing authority must:

• establish who should bear responsibility for remediation; 
• decide after consultation what must be done in the form of remediation and ensure it is effectively carried out;
• determine liability for the costs of the remedial works; and
• maintain a public register of regulatory action in relation to contaminated land.

To satisfy the far-reaching objectives of the contaminated land regime it is necessary to assess land throughout the Borough and to collate significant volumes of information. This will enable the Council to make the sometimes difficult and complex decisions relating to the condition of land, the risks it presents and who may be legally liable for it. It must be noted that local authorities have the sole responsibility for designating sites as contaminated land and this responsibility cannot be delegated to another body. However, support and advice can be obtained from contaminated land professionals external to the Council. Additionally, this responsibility of local authorities should not be considered in isolation from their other duties that have the potential to achieve the same goal as the Contaminated Land Strategy or from the impact on their available resources.

1.4 Strategic and Development Control Planning

The Council formally adopted its Local Plan (2016-2036) on 12th October 2023. Within the Core Strategy the need for more housing in the Borough is highlighted. The proposed housing requirements for Welwyn-Hatfield in the period up to 2036 was set at 15,200 dwellings. Between 2016 and 2023, 3,218 dwellings have already been delivered. The emphasis of the Local Plan is on sustainable development so it is intended that there will be a limit in the use of “greenfield” sites. This will allow for development opportunities utilising previously developed (brownfield or grey belt) land. Some of this land may be contaminated because of former land uses and the new development will enable this contamination to be dealt with under the planning control regime utilising existing policies in the Local Plan. Therefore, it is expected that most contaminated land remediation will continue to be dealt with by using ‘contaminated land’ planning conditions within the planning regime. Of particular significance is that the National Planning Policy Framework 2024 (NPPF 2024) states that if a site is remediated via the planning regime it should not be capable of being determined as contaminated land under Part 2A. As a statutory consultee to the local planning authority, the Environmental Health Team considers all relevant applications for the potential to be affected by land contamination and must keep in mind the relationship between the two regimes.

1.5 Financial and Manpower Implications

The Government has accepted that successful operation of the Contaminated Land Regime demands considerable resources. This reflects the fact that detailed inspection and assessment of potentially contaminated land can be complex, time consuming and open to legal challenge, as can the apportionment of liability for remediation. Currently the Government does not provide any central funding for the implementation of the Contaminated Land Regime. As such, the Council will, in the main, continue to deal with the investigation and remediation of land affected by contamination via the Planning Regime. Where there is sufficient justification to warrant a formal investigation pursuant to Part 2A EPA 1990 there will be expenditure required to fund suitable site investigation and risk assessment. Where thresholds of risk to human health or the environment are exceeded, there may be further financial implications associated with remediating the land or requiring the polluter(s)/appropriate person(s) to remediate the land. If necessary, such additional costs (for example in respect of appointment of specialist contractors and legal fees) will be identified in budget monitoring if it arises. There is also the option of cost recovery at the remediation stage in circumstances where the polluter/appropriate person for a contaminated land site does not initially fund the remediation.

1.6 Information, Complaints and Questions from the Public

All information supplied to the Council will be dealt with confidentially and will be considered by the appointed officer with the purpose of updating the prioritisation list where it is deemed appropriate. Information supplied that is non-specific and generalised will not be considered sufficient for initial consideration and this will be at the discretion of the appointed officer. Complaints may be received about sites, which need further investigation that may give rise to concern, especially where a potential property/land sale has failed due to the suggestion that the land may be contaminated. Those so affected may seek an early investigation to clarify their position, thereby seeking to circumvent the prioritisation process. Such requests for priority inspection will be considered based on site-specific circumstances and will be dealt with as considerately as possible but ordinarily will not be taken forward. However, in exceptional circumstances, where a sufficiently strong enough case can be made and where resources are made available by the Council or Central Government an investigation may be possible.