Contaminated land strategy

2.1 Aims and Objectives

The Act itself states in Section 78B (1) that: Every local authority shall cause its area to be inspected from time to time for the purpose of:

• identifying contaminated land; and
• enabling the authority to decide whether any such land is land which is required to be a special site (Appendix 1).

Section 78B (2) states that the authorities must act in accordance with guidance issued by the Secretary of State, currently the Contaminated Land Statutory Guidance is available on the DEFRA Website.

The overarching objectives of the Government’s policy on contaminated land and the Part 2A regime are to:

• Identify and remove unacceptable risks to human health and the environment arising from historically contaminated land;
• Seek to ensure that historically contaminated land is made suitable for its current use.
• Ensure that the burdens faced by individuals, companies and society as a whole are proportionate, manageable and compatible with the principles of sustainable development.

2.2 Definition of Contaminated Land Contaminated land is defined for the purposes of Part 2A as: “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) significant pollution of controlled waters is being, or there is a significant possibility of such pollution being caused.”

What may or may not constitute the various categories of harm is described in the statutory guidance.

Controlled waters include inland freshwater, groundwater and coastal waters.

2.3 Outline of the Statutory Procedure Local authorities are required to cause their areas to be inspected with a view to identifying contaminated land. The approach taken should be strategic and be rational, ordered and efficient and take account of local circumstances. It should be set out in a written Strategy.

As part of their Strategy the local authority should seek to give priority to land that it considers pose the greatest risk to human health or the environment. Those higher priority potentially contaminated sites should, ordinarily, be subjected to detailed inspection first.

Where the local authority identifies land where it considers there is a reasonable possibility that a significant contamination linkage (Section 5.0) exists it should inspect that land in sufficient detail to decide if it is statutorily contaminated. The timing of the inspection should be subject to the authority’s approach to prioritisation of detailed inspection.

The owner of the land and other stakeholders in the land being investigated should be consulted before inspection, unless there is a particular reason why this is not possible. This consultation process represents the first opportunity for securing the possibility of voluntary site inspection and if necessary voluntary remediation (without the need for enforcement action).

Where the findings of any detailed inspection identify a source(s) of contamination and a sensitive receptor(s) together with a pathway(s) linking them, they must undertake a formal risk assessment. This should be in accordance with established scientific principles to establish the likelihood of harm, or pollution and the scale and seriousness of such harm or pollution if it did occur. Detailed advice on the approach to the risk assessment process is contained in the Statutory Guidance.

If the necessary inspection has not been undertaken voluntarily and the Council is satisfied that the land meets the definition of statutorily contaminated land it must inform the landowner and other appropriate person(s). If a voluntary approach is not forthcoming the Council shall declare that a significant pollutant linkage(s) exists and that the land is contaminated land by definition. In every case where the land does not fall within the category of “special site” the Council must commence regulatory action, which involves a series of complex steps and considerations that are detailed within Sections 5 - 8 of the Statutory Guidance.

The considerations relate to:

• the area of land, the nature of the contamination and its likely impact (Section 5)
• remediation (Section 6)
• liability (Section 7)
• cost recovery and hardship (Section 8)