Contaminated land strategy

7.1 Responsibilities and Requirements

The local authority has the sole responsibility for determining whether any land appears to be contaminated land. It cannot delegate this responsibility (except in accordance with section 101 of the Local Government Act 1972). However, in making such decisions the authority may rely on information or advice provided by another body such as the Environment Agency, or a suitably qualified experienced practitioner appointed for that purpose.

There are four possible grounds for the determination of land as contaminated land (with regard to non-radioactive contamination):

(a) Significant harm to human health.

(b) Significant possibility of significant harm to human health.

(c) Significant harm or significant possibility of such harm (non-human receptors).

(d) Significant pollution of controlled waters or significant possibility of such pollution.

 The legal definition of contaminated land is slightly different if harm is due to radioactivity as it is defined in Regulation 5 of The Radioactive Contaminated Land (England) Regulations 2006. Land contaminated by radioactivity is the responsibility of the Environment Agency.

Before making any determination, the local authority should have identified one or more significant contaminant linkage(s), and carried out a robust, appropriate, scientific and technical assessment of all the relevant and available evidence. The Revised Contaminated Land Statutory Guidance provides the guidance necessary to enable the above, as well as defining four categories of harm to human health to aid the determination process following completion of the risk assessment. In the case of any land which, following determination as contaminated land, would be likely to meet one or more of the descriptions of a “Special Site” set out in the Contaminated Land Regulations 2012 (as amended), the Council should consult the Environment Agency before deciding whether to determine the land. The Council should take the Agency’s views into full consideration and strive to ensure it has the Agency’s agreement to its decision (although the decision is for the Council to make subject to the provisions of Part 2A).

Situations may arise where, with the information available, it is not possible to determine whether a pollutant linkage is significant in accordance with the statutory guidance. In such cases the Council will determine that, on the balance of probabilities, the land does not fall within the statutory definition of contaminated land. However, the situation will be kept under review and reopened at any time new information becomes available.

Inspection may identify contamination that would form a significant pollutant linkage, should new receptors be introduced to the site. In such circumstances this information will be recorded. Should such a site be identified for future development, the information obtained during the investigation should be made available to the planning authority and the owners/developers.

7.2 The Written Record of Determination and Formal Notification

Where a site is to be determined as “contaminated land”, the Council shall:

• produce a Risk Summary that explains their understanding of the risk and other relevant factors in a manner that is understandable to a layperson. This is a prerequisite of a formal determination.
• afford all opportunities for the landowner and/or responsible person(s) to undertake their own suitable remediation. This reflects the fact that the legislation and statutory guidance is designed to encourage voluntary remediation (without the need for enforcement action) and in doing so minimise unnecessary burdens on the taxpayer, businesses and individuals.

However, if the Council is of the opinion that the timescale or the remediation method proposed will not alleviate the risk, then the Council will, having determined the land as “contaminated land” by statutory definition, prepare a written record to include:

• a description of the pollutant linkage(s) confirmed,
• a summary of the evidence which confirms the existence of the pollutant linkage(s) including the risk assessments used to conclude their significance (the Risk Summary),
• a summary of the way the requirements of the statutory guidance were satisfied. 

The Council will formally notify all relevant parties in writing that the land has been determined “contaminated land”, including:

• the owner(s)
• the occupier(s)
• those liable for remediation (‘appropriate persons’ in the guidance) and
• the Environment Agency.

At the notification stage it may not be possible to identify all the relevant parties. The Council will, however, act on the best information available to it at that time and keep the situation under review should more information comes to light.

If land has been determined as “contaminated land” and falls within one or more of the “special site” descriptions prescribed in the regulations made under Part 2A (Appendix 1), it is required to be designated a “special site”. The Environment Agency then becomes the enforcing authority for that land.

The formal notification procedure commences the process of consultation on what remediation might be most appropriate. To aid this process the Council will therefore provide as much information to the relevant parties as possible, including where available:

• a copy of the written record of determination;
• copies of site investigation reports (or details of their availability);
• an explanation of why the appropriate persons have been chosen as such; and
• details of all other parties notified.

Appropriate persons will be provided with written explanations of the tests for exclusion and apportionment.