Seeping contamination

The Government, it seems, has wasted the past 12 months tinkering with its proposals for contaminated land liability. Mike Renger, Nabarro Nathanson, thinks the time has come for nothing less than comprehensive guidance.

It can take many years for the presence and consequences of contamination of land from an industrial process to come to light. The percolation of contaminants often occurs unseen and the resulting damage to groundwater and the environment may remain undiscovered for many years.

The same could be said of the implementation of the Government’s proposals for contaminated land. The 1990 Environmental Protection Act (Section 143) proposed, in a blaze of publicity, the establishment of a public register of all sites which were, or had been put, to a contaminative use. The proposal was later quietly dropped but the proposed schedule of “contaminative uses” continues to be used informally by the property industry, whilst there is a vacuum in guidance from the Government.

A new contaminated land regime was introduced by the Environment Act 1995 which has amended the Environmental Protection Act 1990. For the first time in UK law there is now a statutory definition of “contaminated land”. That definition will be applied by local authorities, who must be satisfied that land is 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 pollution of controlled waters is being (or is likely to be) caused.

For any land to become contaminated there must be a pollutant linkage between the contaminants and the receptor. The mere presence of contaminants on land does not render the land contaminated if those contaminants can neither harm a receptor nor migrate (such as a stream or groundwater) along the pathway to a receptor.

As with much of UK legislation, the interpretation will be dependent upon the form of Government guidance to the local authorities. In particular, the question as to what harm is to be regarded as “significant”, and whether the possibility of “significant harm” being caused is in itself “significant”, will need to be determined by reference to statutory guidance.

Although it is now almost four years since the legislation was passed, the final form of the statutory guidance is still awaited. The first draft guidance was published for consultation in September 1996. Fifteen months later (December 1997) Michael Meacher MP announced that whilst the draft guidance provided broadly the right framework for the protection of human health and the environment, without imposing unnecessary burdens on landowners, developers or industry, there was a need for changes to the detail of the existing drafts of the guidance in a number of areas. Twelve months on, the final form of the statutory guidance is still awaited with the resulting increased uncertainty for owners and occupiers of contaminated land alike.

The Labour Government are committed to implementing the new regime for contaminated land in July 1999; additional funds have already been allocated to local authorities for that purpose. Nevertheless, the detail of how their powers will be exercised is still awaited. Whilst primary liability under the new regime will fall on those who either cause or knowingly permit the contamination to occur, where such parties can no longer be found or identified, liability will then fall upon the owner or occupier of the contaminated site.

It is vital for all site owners, prior to the implementation of the new statutory regime, to be proactive in the management of their sites and in the identification, assessment and management of the risk of contamination from activities carried out at the site. The slow pace at which the Government is implementing this legislation results in uncertainty and confusion. However, the delay also provides site managers with an opportunity to put their sites in order.

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