Contaminated Land is a complex technical subject with the potential for damage to the environment and human health. It can also be a potential legal minefield for developers, property owners and those involved in property transactions. The Council has an important role to play in many aspects of land contamination, which are hopefully summarised below in a concise and accessible way:
What is Contaminated Land?
What role does the Council play in Contaminated Land?
Land contamination and new developments- the Planning and Development process.
Contaminated Land Frequently Asked Questions
In every day language, we talk about land contamination, where a particular area of land may have been polluted by current or previous uses, such as landfill sites, petrol stations, gas works, scrap yards, vehicle repair workshops or even a recent oil tank leak. There may well be contaminants left in the ground, but this doesn't mean that a particular area of land meets the strict legal definition of Contaminated Land set out in PartIIA of the Environmental Protection Act 1990.
The definition is set out in the Act as follows: 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 pollution of controlled waters is being, or is likely to be caused.
Hence, potentially harmful substances buried in an area of land, would not be classified as Contaminated Land according to this legal definition if no people are exposed to it and are unlikely to be so or the environment is not adversely affected and is unlikely to be. This means unnecessary and expensive clean-up operations are not carried out just for the sake of it. In situations where contamination is likely to cause a genuine problem, action to resolve any problems can be taken in a number of ways.
In order for land to be determined as Contaminated Land the Council must have carried out its duty in accordance with its Contaminated Land Inspection Strategy. Only after full investigation of the land by the Council which demonstrates the land meets the legal definition, can the land be formally determined as Contaminated Land.
The Council must then ensure that the land no longer presents a risk to the environment or human health by targeting the original polluter to pay for any necessary clean up works. Details of the land are then placed on the Public Register. These details include the nature of the contamination, what has been done to make the land safe and by whom.
However, in the absence of the original polluter, the current owner or occupier can sometimes be held liable. This is why conveyancing solicitors now routinely ask about contamination. See our guide for more details.
Other than the PartIIA legislation implemented by the Environmental Protection service of the Council, the Planning and Building Control regimes also deal with land contamination issues. Each service has different responsibilities, but work together to ensure this important matter is properly controlled. This is a brief overview of each one:
Environmental Protection Service
The Contaminated Land Officer is responsible for carrying out the Council's Contaminated Land Strategy. The Council's strategy is to identify sites of potential concern within the district, in other words, to find any land that may contain contamination, assess if this poses any current or potential risk, and take appropriate action. This Officer also acts as the advisor to other Council Services on Contaminated Land matters and assesses site investigation and remediation reports submitted through the planning and building control service.
Town Planning Services
Our planning colleagues ensure that if development is going to take place on a site where contamination may exist, any necessary investigation and remediation works are carried out before occupation. Public Health and Community Services are consulted by Planning Officers both before and after a planning application is made, and planning conditions can be imposed to ensure the necessary remediation works are done. Many brownfield sites have been successfully redeveloped within the District under this process.
Building Control Officers inspect many of the building works carried out in the District and have the responsibility for enforcing The Building Regulations. The recently introduced Part C of the Regulations refers to contamination, and Wealden's Building Control Team are taking this new duty seriously. They may require soil surveys or site assessments to ensure contamination will not pose a problem, and like the Planning Officers, liaise with Environmental Protection to ensure a co-ordinated response.
Fortunately, serious harm from contamination is rare. Many contaminated sites are cleaned up during the redevelopment process, particularly as the Government has encouraged building on Brownfield Sites (previously Used Land).The planning process still remains the main driver for dealing with land contamination, despite the introduction of the PartIIA legislation in April 2000.
The Government has set a national target for 60% of all new housing to be built on Brownfield Sites. As a result, it is inevitable that land contamination will be a factor in some new developments.
Planning applicants, their agents, developers and consultants are therefore required by planning policy guidance (PPS23) to give routine early consideration to land contamination development proposals. It is the developers responsibility to ensure that their development is safe for its intended use. Failure to do so can result in harm to human health and the environment, land blight, failure to sell properties and legal action. The Council therefore expects potential land contamination issues to be addressed fully and professionally in accordance with current best practice. A Guide has been produced by the Council that clarifies the current requirements. It is important that planning applicants follow this advice to ensure the efficient processing of their application or enable them to comply with any attached contaminated land planning condition. Please note that this advice is subject to revision from time to time in line with advancing government requirements, legislative changes and best practice guidance.
Buying and Selling Property and Environmental Information
Conveyancing professionals now routinely carry out environmental searches in relation to the land or property their client is interested in buying. Two of the major search companies used are Landmark (Envirosearch Reports) and Sitescope (Homecheck Reports).
If potential land contamination is identified in the search, further enquires are then often made to the Council. Enquires are normally made of Public Health and Community Services, Planning Department and Building Control.