Contaminated land

Environmental Protection Act 1990, Part IIA

Contents

Overview
Deciding if land is contaminated
Developments on contaminated land
Manage land contamination
Environmental search requests
Contaminated land register

Overview

We have a legal duty under Part IIA of the Environmental Protection Act 1990 to identify land that presents an unacceptable risk to human health or the environment and ensure that those who are responsible for the contamination clean it up. Our Contaminated Land Inspection Strategy (2020 - 2025) sets out the way we deal with potentially contaminated land and can be viewed.

Remediation of land, with a historic industrial use, via the planning system is the Government’s preferred option, allowing the redeveloper to pay for the cost of such.

The Department of Environment, Food and Rural Affairs (DEFRA) provides statutory guidance on how local authorities should implement the regime on contaminated land (Part IIA), including how they should go about deciding whether land is contaminated land in the legal sense of the term.

Deciding if land is contaminated

Contaminated land is defined in the Environmental Protection Act 1990 as land which appears 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; (to human health, the built or the natural environment), or
significant pollution of controlled waters is being caused, or there is a significant possibility of significant pollution being caused.

Land contamination can be caused by:

pollution incidents such as accidents, spills, deposits from the air
existing contamination from historical industrial use of the land
a contaminant that has migrated overland or by infiltration into the ground
high levels of naturally occurring substances
historical waste deposits such as a former landfill

When we investigate contaminated land we follow guidance set out by DEFRA using the Source, Pathway and Receptor principle. All three of the elements must be present for the site to be legally defined contaminated land:

The source is the contaminant which is likely to cause harm to people or the environment.
A pathway is a way in which the contaminant can reach a receptor.
The receptor is the person or environment that could be harmed.

Developments on contaminated land

Most sites are remediated as they are redeveloped. A condition is placed within the planning permission to deal with the contamination and any risk. In order to discharge such a condition, sufficient information will need to be submitted to show that the potential risks have been identified and assessed. Validation of any remediation work will also be required.

If you are the owner or developer of a site it is your responsibility to investigate and address any contamination issues and ensure that the proposed development is safe and suitable for use.

If your development is for a sensitive end use such as housing, or you are developing land that has had past industrial use, it is likely that you will need to provide a contaminated land risk assessment as part of your planning application. Please contact us on 0191 278 7878 if you wish to discuss your development and our requirements for the submission of a contaminated land risk assessment.

Manage contaminated land

Land contamination can cause unacceptable risks to the environment and to people. You may need to manage potential land contamination:

as part of a planning application for redevelopment
as a Part IIA obligation
as voluntary remediation
as a regulatory requirement, such as an environmental permitting condition (known as EPR H5) or compliance with an anti-pollution works notice
for the purposes of complying with building regulations
for purchase, transfer or sale of the land or property or to support funding decisions
for valuation or insurance purposes

The Environment Agency has published risk management guidance to help you manage land contamination. You can use the principles in this guidance to assess if there's unacceptable risk, decide which options are the most suitable to manage the risk and implement remediation if needed.

Environmental search requests

We are often asked if there is any contamination to a particular piece of land. We can undertake environmental searches and provide information on environmental issues for individual properties or pieces of land within the city. In some cases, we may have details of remediation that was completed when a site was redeveloped, but for many properties, the only information we have is the past use of the land. Enquiries are usually raised by solicitors as part of property transactions or asset management.

Enquiries are subject to a charge to cover the costs of providing the information.

From 1 April 2020, these charges are:

private residences (search and first two hours): £70
business properties (search and first two hours): £140
each additional hour: £46

Following your request, an officer will advise you if the time taken is likely to exceed two hours and how much the charge will be and how to pay.

Please be aware that we can offer no definitive answers as to past or present contamination. We advise purchasers and interested parties to seek professional advice to assess the available information. Although a property may be situated on land with a past industrial use, it does not necessarily mean the property is on contaminated land, but instead that there is the potential for contamination to be present.