A brief history of redevelopment of contaminated land

The UK is a small but densely-populated country with a long industrial history and is considered to be the birthplace of the industrial revolution.  Whilst the majority of heavy industry in the UK has now ceased, areas subject to former industry often carry a legacy of pollution. In 2005, the Environment Agency estimated that up to 325,000 sites might be polluted as a result of former uses, with as many as 33,500 sites requiring some form of clean-up.

The presence of contamination does not necessarily mean that there is an immediate practical need or a legal liability for a clean-up. In fact in many cases, the existence of contamination can be entirely consistent with the current use of the land. However, if there are proposals for redevelopment, particularly redevelopment to a highly sensitive end use such as residential dwellings, then contaminated land may require remediation so that the land is suitable for its intended use.

Research into the risks associated with the redevelopment of contaminated land was first funded in 1979, when the Inter-Departmental Committee on the Redevelopment of Contaminated Land (ICRCL) was set up. By 1983 the ICRCL had published a document entitled ‘Guidance on the Redevelopment of Contaminated Land’ and this became a point of reference used throughout the late 1980s and the 1990s.

By July 1994 the Planning Policy Guidance Note 23: Planning and Pollution Control (PPG 23) was introduced. PPG 23 gave guidance on the statutory responsibilities of local authorities and other pollution control bodies, principally under the Environmental Protection Act 1990 (EPA 1990) and the Water Resources Act, 1991 (WRA 1991). This guidance was then replaced with Planning Policy Statement 23: Planning and Pollution Control (PPS 23) which states that, as a minimum, after carrying out a development and commencement of its use, redeveloped land should not be capable of being determined as contaminated land under Part 2A of the EPA, 1990. Part 2A of the EPA 1990 outlines a method of identification and compulsory remedial action for contaminated land. The Act defines contaminated land 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; significant harm is being caused or there is a significant possibility of such harm being caused or significant pollution of the water environment is being caused or there is significant possibility of such pollution being caused”.

National Planning Policy Framework (NPPF) currently sets out the Government’s policy on dealing with land contamination through the planning process. It superseded PPS 23 and advises on the roles and responsibilities of local authorities, developers/operators and the Environment Agency when dealing with land contamination issues through planning. As with PPS 23, the NPPF states that after remediation through planning a site should not be capable of being determined as contaminated land under Part 2A of the Environmental Protection Act 1990 (NPPF Para 121).

Prior to 1994, there was no statutory requirement for developers to investigate for contaminated land at proposed development sites. No official guidance was available in this area before 1983. In recent years it has become evident that some housing sites developed on contaminated land pre 1994 are now suffering the effects of this lack of regulation.

Famous case studies

Blanefield

This is a very well-known case that emphasises the dangers of developing on contaminated land without remediating the land beforehand. After a routine check by Stirling Council of houses built on the site of a Victorian calico print works (Blanefield Printworks) in Blanefield, Stirlingshire, thirteen houses were identified to lie upon ground contaminated primarily with lead and arsenic. These houses, built in the 1960s, were identified to lie on land that meets the definition of contaminated land. Upon discovery of this contaminated land, the council followed the hierarchy of responsibility for paying for remediation work. As the owners of the print works went out of business over a century ago and the original developers of the land could not be traced, the council found that the ultimate responsibility for remediation of the land lay with the current owners. Fortunately, after much media attention, in February 2014 the Scottish Government pledged up to £300,000 to aid in the remediation of contaminated land and matching funds already pledged by the UK government and Stirling Council. This money was sufficient to cover the clean-up bill, leaving residents relieved not to have to pay for remediation of their land. The most recent information from the council advised that the remediation works were started on 24 June 2014, and were due to have been completed mid November 2014. At the time of writing, no update has been given by the council.

Gorebridge’s Newbyres Crescent Estate

This housing estate comprising 64 homes was built on a former Midlothian coal mine. Carbon dioxide was discovered at elevated levels within the homes in September 2013 when a family had difficulty waking teenagers sleeping in one of the homes. Investigations into the issue have been ongoing since June 2014 and an update published by the council 4 November 2014 stated that the site will be demolished. The council will then rebuild the estate with gas membranes beneath them in order to prevent migration of carbon dioxide into the buildings. This project is estimated to cost approximately £12m.

Lambson Fine Chemicals Limited

This site in Castelford, West Yorkshire shows the NPPF in action and how previous industrial land (brownfield land) can be remediated through planning and used for residential purposes. It’s also a cautionary tale on the dangers of purchasing brownfield land without carrying out a thorough site investigation first. In this case housing developers, Merlion Capital Housing Ltd, purchased a 40 acre industrial property from Lambson Fine Chemicals with the intention of redeveloping it for residential purposes. Lambson Fine Chemicals were responsible for remediating the site prior to vacating it. When Merlion began redevelopment works they found additional areas of contamination and despite taking Lambson to court, Merlion ended up having to pay for additional remediation works to be carried out. The redevelopment of the site is currently underway and remediation of the area is being closely monitored by the local authority.

Dan Montagnani is the managing director of GroundSure, which produces environmental-report data to help solicitors, homebuyers, businesses, consultants, surveyors and lenders make more informed property-transaction decisions.

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