Legal Comment: Are we making progress on contaminated land?

Andrew Wiseman, head of environmental law at Stephenson Harwood, looks at the recently-published Environment Agency review of progress in dealing with contaminated land in England and Wales.

Under the Environmental Protection Act 1990 Part 2A (the contaminated land regime) the Environment Agency have to publish “periodic reports on contaminated land”.

This is the second such report, (the first being in 2002) and it outlines what has been achieved from April 2000 to March 2007.

There are a number of pertinent points that can be drawn from this report.

One is the surprising statistic that 48% of local authorities have reported little or no progress with their inspection strategies, despite the fact that they have a duty to inspect their area for contaminated land.

Although the report does not provide any commentary on the reasons for this there could be a number, including that there is currently no way of bench marking local authorities eg through the use of performance indicators, thus no impetus for them to use the regime proactively.

In fact only 659 sites in England & Wales have been dealt with using the regime which equates to about 100 – 150 locations.

It is noticeable, though unsurprising given the uncertainty over thresholds and the Way Forward exercise, that from mid 2006 through to mid 2007, no sites were identified at all.

With the recently issued government guidance on contaminated land and new Soil Guideline Values due any time now, I would expect more sites to be identified in the forthcoming year.

The report notes that most sites are dealt with through planning on redevelopment so the contaminated land regime is not used.

With new model planning conditions on land contamination issued last year, this should continue to ensure that remediation is achieved if redevelopment takes place.

When local authorities do formally identify a site as contaminated under the regime then remediation takes places without the need for a Remediation Notice. So far only 12 Remediation Notices have been served.

Interestingly, it seems the Government is currently picking up the bill for the remediation of the vast majority of sites rather than those responsible for the contamination, so despite the best of intentions, the polluter does not always pay!

Understandably local authorities are nervous over using the regime but many seem to believe it to be more complex than it really is.

In fact, it lends itself to a step-by-step approach and the legal issues which arise can be dealt with relatively easily.

The regime has significantly raised the profile of contaminated land and increasingly we can expect the regulators to come under pressure to identify and ensure the clean up of contaminated land in their area.

Andrew Wiseman is head of Environmental Law at Stephenson Harwood and can be contacted at [email protected]

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