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February 2003 |
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The true legacy of contaminated land |  Back to
contents
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Until fairly recently, problems related to contaminated land have been tackled almost exclusively in the context of redevelopment where there was the objective of economic benefit linked to environmental enhancement. The introduction of the Part IIA regime in April 2000 however, placed a duty on local authorities to proactively inspect their areas and ensure that any land identified as contaminated is subsequently remediated.1 As independent EHO Roger Braithwaite pointed out in the first of a three-part series on the regime in EHJ (February 2000, page 41), the purpose for its introduction has been to provide an improved system for the identification and remediation of contaminated land. This meant improving the focus and transparency of controls; the emphasis on only one enforcement agency (local authorities) which could declare land as contaminated; and increasing the consistency of the different local authority approaches. According to Mr Braithwaite, the Government also saw the regime as a way of providing "a more tailored regulatory mechanism, including liability rules." The idea being that the mechanism would be "better able to reflect more accurately the complexity and range of circumstances found on individual sites." Last September, the Environment Agency (EA) published its first statutory report concerning the state of contaminated land in England (as defined by Section 78U, Part IIA of the Environmental Protection Act 1990).2 Its findings showed the progress that has been made in implementing the regime, including the development of local authority strategies for inspecting their areas. It also represented the first real picture of the number of sites that have been determined as contaminated land (as of 31 March 2002). Progress has continued at a slow pace since then, reflecting how resource intensive and how lengthy the process in declaring land contaminated can be. Local authorities and the EA jointly regulate the Part IIA regime and each has specific duties. In the case of local authorities, there is a requirement to:
At the same time, the EA is required to:
Under the Part IIA regime, the statutory definition of contaminated land - as applicable for sites in respect of their current condition and usage - is "...any land which appears to the local authority in whose area it is situated to be in such a condition, by reasons 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; and, in determining whether any land appears to be such land, a local authority shall...act in accordance with guidance issued by the Secretary of State..." However, as the EA report explains, the above definition is a subset of the wider legacy of land that has been affected by contamination, including:
As the EA report makes clear, while fundamental differences between the above terms are apparent, often they can be used to describe the same piece of land. For instance, in some circumstances, land can be derelict, previously developed land and contaminated at the same time. Consequently, the difference in terminology and usage has presented problems in collecting consistent information about the true legacy of contamination on a nation-wide basis. The Government anticipates that as local authorities inspect their areas under Part IIA, a more consistent categorisation of land will emerge. Dealing with contaminated land in England estimates that as many as 100,000 sites could be affected by contamination in England and Wales, of which between 5 and 20 per cent will fall under Part IIA and therefore require action so that unacceptable risks to human health and the environment are minimised. Of course, as local authorities press on with their inspection strategies, this figure will be constantly revised. Since the Part IIA regime's introduction in April 2000, local authorities have focused on preparing a strategy. In his first article in February 2000, Mr Braithwaite anticipated that the strategy stage would pose a number of challenges for local authorities. This would be due to the complex issues surrounding the regime and the time consuming nature of the process, which, for example, would involve extensive consultation with a number of bodies, such as the EA. Commenting on the strategy formulation, Mr Braithwaite noted, "It quickly becomes evident that the person writing the strategy must not only be very knowledgeable about the general subject of contaminated land, the legislation and the procedures, but must also have (or obtain) a detailed knowledge of the area(s) in question." While it is difficult to get a clear indication of how each individual authority has risen to this challenge, the success in formulating the strategy is likely to have been influenced largely by the level of political awareness within each authority. To some degree, this will have affected the resources put aside for dealing with it and the commitment made. As Alan Higgins, city environmental health and trading standards officer at Portsmouth City Council notes, Portsmouth has dealt with contaminated land problems for a number of years, and as a result, has developed its expertise and knowledge of the subject. The fact that Portsmouth is a major naval base, and has had a long history of industrial use has helped raise the contaminated land profile within the authority. However, Mr Higgins is quick to point out that political awareness in many authorities remains low, particularly if working closely with planning departments is not high on the agenda. "If other local authorities haven't got the other departments on board, they won't have a high level of awareness." At the same time, Mr Higgins admits that with four full-time members of staff committed to contaminated land issues, Portsmouth CC is atypical of most authorities. He says that in some cases (particularly rural authorities or those with a rural-urban mix), there may only be one person working on contaminated land and even then they may not be able to commit themselves full time to dealing with the regime. Nevertheless, even in local authorities where resource levels and commitment is not as great, progress with implementing the regime is still being made. Despite receiving the lowest budget for public protection in Berkshire, Wokingham Unitary used a high profile case in 1996 to raise awareness of the issue at senior management level. According to Charles Bradfield, interim head of public protection, the case helped to persuade management to allocate the necessary resources, and now the issue is relatively high on the agenda. However, he believes that other councils, which have not benefited from such high profile cases, are likely to struggle in persuading management to put aside the resources. He adds, "Unless there are major cases, the behind the scenes preparation of the strategy is not seen as high profile." Whatever the difficulties faced in formulating the strategies, the EA report shows that 94 per cent of local authorities had published their final inspection strategies by July 2002, while the remaining 6 per cent had published a consultation strategy. The contents of the inspection strategies reflect local circumstances and as a result have varied somewhat. However, according to the EA report, most local authorities have adopted a relatively common approach in developing and presenting their strategies. These included:
With regard to stating strategic objectives, these have fallen into the following categories:
Now that the strategies have been published, local authorities are required to keep them under "periodic review". The next stage requires each authority to survey its area in order to identify potentially contaminated sites. Information gathered during this stage will be important in assisting local authorities to identify the priority areas for inspection and will enable them to carry out detailed inspections in the highest-risk areas first to identify priority sites. The time scale given for completing the inspections will vary for each local authority but the EA does not expect the first round of inspections to finish until 2006. As Mr Braithwaite has previously warned (EHJ, March 2000, page 82), surveying the district will be a long and time-consuming task, with the results subsequently digitised and held on geographical information systems (GIS). While this stage is still in its infancy, it appears that many authorities are still grappling with the technology. Bruce Chartres, senior environmental health officer at Herefordshire Council and chair of the Herefordshire and Worcestershire Contaminated Land Study Group says that his council has experienced significant problems with the software packages used to manage site information. According to Mr Chartres, a number of councils in the area have been slow in getting the systems up and running. He believes that many other authorities across the country are likely to be in a similar position. Also, once the systems are up and running, councils will be faced with the extremely time-consuming process of inputting all the information. While the scale of Portsmouth's contaminated land problems will differ from many other councils, it is interesting to note that Portsmouth has spent four years inputting all the information to its GIS. The challenges facing local authorities are unlikely to stop there. With so many issues involved in the identification and prioritisation of sites, Mr Braithwaite warns that local authorities could easily get bogged down in the investigation stage. Focusing on the perils and pitfalls of the regime, he has already argued that it will rarely be clear cut when contaminated land falls within the statutory definition (EHJ, May 2001, page 139). "Generally, judgements will be based on neither hard science (using facts) nor soft science (established on probabilities), rather a combination of the two." The contaminated land officer, he warns, must be "finely tuned to the risks a particular site presents and ensure that the right balance of priorities is achieved. In most circumstances caution will be the watchword, but in a very small percentage disaster may be just around the corner." To date, relatively few areas have been already been identified under Part IIA. The latest figures, announced last month, show that 49 sites had been determined as contaminated land. From the few areas that have already been identified, the following conclusions have been drawn:
As the lead enforcing authority, local authorities have a statutory duty to require the remediation of determined sites. As Part IIA stipulates, the enforcing authority will need to identify and consult the "appropriate persons" who may be responsible for remediating the site identified. This will be either: those who caused or knowingly permitted the contamination; the current landowner; or the enforcing authority where the site is an orphan site (or where an appropriate person cannot be found). In the first instance, the appropriate person(s) can choose to carry out work voluntarily. If this is the case, a remediation statement is required to specify what remediation will be done, by whom and by when. It is then the responsibility of the local authority to ensure that this work is carried out as agreed. However, if the appropriate person(s) does not agree to carry out voluntary remediation or when the enforcing authority is not satisfied that the remediation statement has been complied with, then it can serve a remediation notice. This means that the appropriate person(s) has to remediate the site in accordance with the detail of the notice. Of the 49 sites determined to date, the EA reports that remediation has started or is due to start at 17. In each case, except one, which has been served a notice, remediation is being dealt with under an agreed remediation statement. In the case of orphan sites, the enforcing authority is responsible for ensuring that the significant pollutant linkage is broken and ensuring that remediation is carried out. This may result in the local authority becoming financially responsible for cleaning up some of these sites, which could pose problems for resource-strapped authorities. Where a significant pollution linkage exists, the local authority can determine land as contaminated and formally designate it as a special site. The EA then becomes the enforcing authority. Last month's figures show that 13 sites have been designated as special sites, while the EA has also agreed to inspect a further 47 potential special sites. But progress with implementing the Part IIA regime is proving to be both time consuming and resource intensive. The remediation process alone, notes the EA, can take anything from between one and three years. Perhaps for this reason, the next EA report is not due to be published until 2007, although interim reports should follow as and when new and more detailed information becomes available on the true legacy of contaminated land. Meanwhile, the Government has set a national target for local planning authorities to increase the proportion of new homes that are built on previously developed land to 60 per cent by 2008. The desire to redevelop land however, will involve a change in the use of a site and consequently any necessary remedial action would be carried out under planning and development control rather than under the Part IIA regime. Liaison between planners and contaminated land officers will be essential at an early stage as Dr Bill Baker from the EA (EHJ, July 2001, page 214) has noted. "The local authority system of inspection of land, which is an integral part of the new legislation, will provide the planners with much valuable information which will help in avoiding the mistakes of the past, whereby planning approval was often given for development in ignorance of the potential problems of contamination." However, as interest in redeveloping previously developed land increasingly becomes the key driver in the remediation of land, the danger may be that attention is focused more on dealing with planning applications rather than the Part IIA regime. References
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