Contaminated land

Part IIA of the Environmental Protection Act 1990 (the 1990 Act), the legislation on contaminated land, came into effect in England on 1 April 2000 and has since been implemented in Wales and Scotland. The legislation introduced, for the first time, a statutory regime with the express purpose of identifying and securing clean-up of contaminated land. This regime was extended, in August 2006, to include land contaminated by radioactivity.

The statutory provisions dealing with contaminated land contained in Part2A of the 1990 Act need to be read alongside the statutory and other guidance. DEFRA has issued Circular 01/2006 '“ 'Environmental Protection Act 1990: Part 2A Contaminated Land'. August 2006 also saw the new contaminated land regulations in England replace and consolidate the previous ones.

While the main driver for the change was the recent extension of the contaminated land regime to radioactive contamination, the new Circular also updates some of the non-statutory guidance to take account of other changes since 2000. Readers may also have noted that DEFRA has also decided to change the way it refers to Part IIA '“ now referring to Part 2A.

There is further change to Part 2A ahead as the Environmental Liability Directive needs to be implemented by 30 April 2007. Although there have been delays, DEFRA is expected to consult on implementation in Autumn 2006 and then again in Spring 2007. September 2006 also saw the release of the European Commission's Thematic Strategy for Soil Protection. That strategy includes a number of elements dealing with contaminated land and includes a proposal for a new framework directive.

Statutory regime

Although formal use of the regime, in the sense of designations of contaminated land and the service of remediation notices, got off to a slower start than anticipated, contaminated land has nonetheless been an important issue for the legal profession.

By May 2006, a total of 525 sites in England had been designated as contaminated land under Part 2A. It is interesting to note that 443 of those designations came in the last two years; 23 of the total are 'special sites' and jurisdiction is with the Environment Agency, rather than the local authority. However, very few remediation notices have been served to date. A total of five (one of which was a special site) had been served in England by June 2006. This low number is undoubtedly due in part to the complexity of the new system, but also due to a preference for voluntary clean- up. Advantages of a voluntary clean-up for local authorities and parties carrying out remediation include dealing with the matter quickly, and targeting resources at the areas of greatest concern. Consistent with the emphasis on voluntary remediation, the number of remediation statements '“ statements on the public register formally indicating what action has been taken'“ is much higher at 44 in England.

There is, of course, provision for appealing against remediation notices. A recent change to note about the appeal provisions is that appeals against remediation notices served by local authorities after 4 August 2006 no longer go to the magistrates' court, but are now made to the Secretary of State. Appeals are made to the Planning Inspectorate in Bristol, who have an environment appeals team in place to deal with appeals under Part 2A, although as yet they have not had a huge call on their services.

Changes to the Circular

Section 78YC of Part 2A excluded harm or pollution of controlled waters so far as attributable to the radioactive properties of any substance from the contaminated land regime. However, it was always contemplated that radioactive contamination would be brought into the Part 2A regime in due course and the section also provided for the making of regulations to enable that to occur. The Radioactive Contaminated Land (Enabling Powers) (England) Regulations 2005 and the Radioactive Contaminated Land (Modification of Enactments) (England) Regulations 2006 completed the regulation-making process on 4 August 2006.

Following the implementation of these provisions, the guidance needed to be revised. Circular 01/2006 now combines the guidance on contaminated land with new specific guidance on the extension of Part 2A to address radioactivity and radioactive contamination. The previous guidance has also been updated in the non-statutory sections to take account of developments since 2000, but is substantively unchanged in most respects. Changes range from the removal of the reference to a target for 60 per cent of new housing to be built on previously developed land to inclusion of specific sections on the Pollution Prevention and Control (PPC) regime introduced in 2000.

Contaminated Land (England) Regulations 2006

The new Contaminated Land (England) Regulations 2006 (SI no 1380) came into effect on 4 August 2006 and essentially consolidate and replace the previous regulations. These Regulations now provide that any site designated as contaminated land through radioactivity will be a special site and therefore under the jurisdiction of the Environment Agency.

Amended definition?

The new regulations and guidance do not address the position regarding the unimplemented provisions of s 86 of the Water Act 2003. Section 86 will introduce the word 'significant' into the water pollution limb of the definition of contaminated land. However, this amendment, although long considered desirable to address the apparently lower threshold for designation of contaminated land for water pollution reasons, appears to be on hold. DEFRA is understood to wish to implement the provision in conjunction with other changes resulting from implementation of the EU Water Framework Directive and no prospective date for implementation is available. When this change is implemented, it will require changes to the guidance.

Environmental Liability Directive

Member states have until 30 April 2007 to implement the provisions of the EU Environmental Liability Directive (2004/35/EC) and further changes to Part 2A will undoubtedly be required. The Directive is aimed at the prevention and remediation of environmental damage, specifically damage to habitats and species protected by EC law, damage to water resources and land contamination. It does not deal with personal injury and traditional property damage. While the Directive will apply only to damage caused by incidents occurring after it comes into force, member states are able to adopt more stringent provisions in relation to the prevention and remedying of environmental damage in their domestic implementation.

The Directive is intended to be based on the 'polluter pays principle', so that operators of processes that result in environmental damage should bear the cost of remediating the damage they cause, or of measures taken to prevent imminent threat of damage.

DEFRA has been having discussions with various stakeholders and intended to produce options, proposals and draft legislation for consultation some time ago. It is understood to still be hoping to carry out two consultation exercises on the transposition of the Directive into UK national law. The first consultation is now anticipated in Autumn 2006 followed by a second one in Spring 2007.

Although there is considerable overlap between the requirements of the Directive and the provisions of Part 2A, there will need to be some changes to the Part 2A regime. The full extent of the changes remains to be seen, but both the legislation and guidance will need to be amended. Implementation of the Directive in the UK may well involve the strengthening of biodiversity protection and what presently exist as powers of the competent authority will become duties.

Under the Directive, polluters will meet liability: by remediating the damaged environment directly; by taking measures to prevent imminent damage; or by reimbursing the competent authority, who, in default, remediate the damage or take action to prevent it themselves. The competent authority is responsible for enforcing the regime and determining remediation standards.

Strict liability would apply for damage to land, water and to protected species and habitats caused by activities regulated by specified EU legislation. Fault-based liability would apply to biodiversity damage from any other activity. Although the Directive provides for limited circumstances where member states can allow an operator not to bear the costs of remediation, the extent of availability of these 'defences' is not entirely clear. They include damage that the operator can prove were not the result of his fault or negligence and were caused by activities expressly authorised by and in compliance with a permit or authorisation and emissions or activities which were not, at the time they took place, considered to be harmful on the basis of the scientific and technical knowledge at the time.

Soil protection strategy

The European Commission's long awaited Thematic Strategy for Soil Protection was released on 22 September 2006. Accompanied by a proposal for a framework directive for the protection of soil, the strategy focuses on actions to preserve soil functions, prevent soil degradation, and mitigate or restore degraded soils. As the proposed actions include some measures aimed at dealing with contaminated land, the need to amend the Environmental Liability Directive to bring it into line with the Soil Framework Directive is noted.