NSCA survey of local authorities raises alarm

Implementation of the new contaminated land regime is slipping, and legal departments within local authorities have been slow to respond to the major issues, according to an NSCA survey which also pinpoints concerns about a lack of technical guidance on soil contamination levels. LAWE's special feature also reports on contaminated land treatment method with case studies of current projects

Findings of the NSCA survey into the operation of new powers to tackle contaminated land by local authorities across England and Wales published in July show a number of worrying trends. Local authorities expressed specific concern over the legal complexities of the regime and ignorance within LAs of these areas, in addition to inadequate guidance in some key areas coupled with no replacement for previously withdrawn guidelines on soil contamination (ICRCL 59/83).

NSCA reports that 95% of all respondents were able to confirm that their LA had indeed agreed and published a Contaminated Land Strategy, often only recently, but that self-imposed deadlines were already slipping for 60%. Furthermore, 75% of those admitting to slippage said their land search would go on beyond 2005.

Implementation progress

The results show also that many authorities have located contaminated land sites, reporting anything from one or two sites to several thousand polygons (GIS generated) at numerous different locations. Some 38 determinations were noted in the replies which tallies closely with data reported to the Environment Agency (currently about 55), again indicating that those authorities that have replied are those that are surging ahead with the regime’s requirements.

No local authorities indicated that they have served remediation notices in the survey, but remediation has been carried out by LAs themselves (34) and in a voluntary capacity by developers.

Legal issues

However, NSCA says that the situation is much graver further down the road to implementation. The survey indicates that 82% of local authority officers responding felt they had not received adequate briefings from their legal departments with concerns surrounding the assignation of liabilities being foremost in officers’ minds.

To this effect the NSCA is organising a training day on assigning legal liabilities aimed at LA legal, contaminated land, regeneration and planning officers. The event is to be held at the Royal Society of Arts in London on 12 November. Further details from the NSCA office (tel: 01273 878770 web: www.nsca.org.uk)

Officers are still remaining quite confident in their own knowledge but there was concern that their legal departments had “no idea about liability”, ” need to be briefed by contaminated land officers” and “don’t know the answers so we have to use expensive consultants or external legal teams.” As the legal aspects become more important, officers’ confidence is beginning to fall, says NSCA.

The obvious lack of case law is foremost on the list of concerns highlighted by officers who wish to review the judgements before making decisions. The dichotomy is that in the legal vacuum, trial cases will come from the LAs at the forefront of the implementation.

Officers were quick to point out that the regime can be overly complex and resource intensive and even a bureaucratic nightmare to some. However, the need to get to grips further with the implications of the law and to ensure other relevant departments have some understanding of the regime, still needs to be addressed.

Guidance needed

There have been repeated calls for the ICRCL 59/83 guidance note to be replaced and for the high natural background arsenic levels to be properly addressed as a Soil Guideline Value (SGV). The usual calls for more SGVs to be developed are being addressed by the Environment Agency as is further research into the bioavailability of other substances.

Concern was also raised that Human Health Risk Assessments were overly complex to conduct.

Richard Mills, NSCA Secretary General, said: “Local authorities have expressed clearly that they will miss their deadlines for completing their search for contaminated land.

“DEFRA and the wider Government will have to consider how to best ensure that LAs are properly resourced to complete the task and meet their other statutory requirements.”

He added, “We again urge DEFRA to produce an accelerated timetable for publication of toxicological criteria and SGVs, accompanied by an authoritative and robust document on the approach to be taken in their absence.

“Furthermore, there is growing uncertainty as to how best to handle the untested legal complexities of the regime, particularly with reference to assigning liabilities and the provision of information to the public,” Mr Mills continued. ” The NSCA will work towards ensuring that local authorities are provided with better information to meet these challenges”

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