Contaminated land - the statutory framework
A considerable amount has been written about the Government's new contaminated land legislation over the last three years. Much of this commentary has, however, concentrated on the mechanics of this legislation in isolation from other statutory provisions. Consequently, there is some confusion concerning the situations in which this new legislation will apply and how it will fit into the overall statutory framework which deals with contaminated land in the UK.
The contaminated land regime ("Statutory Regime") was enacted by Section 57 of the Environment Act 1995. Whilst the Statutory Regime has been on the statute books since 1995 it has not yet been brought into force. To a large extent, this legislation is only an outline of the Statutory Regime, the detail of which will be set out in statutory guidance which has yet to be finalised. Draft statutory guidance was published by the Government in September 1996. The Government has indicated that the final version of this statutory guidance is likely to be published towards the end of this year so that business, landowners and others likely to be affected can make provision for the Statutory Regime before it comes into force. In July 1998, it was announced that the Government intends to bring the Statutory Regime into force by July 1999 and that extra funding will be made available to local authorities to support the implementation of the Statutory Regime.
This article will address the place of the Statutory Regime in the wider statutory framework which applies to contaminated land in the UK. It will not address in any detail issues of liability and enforcement, as these have been dealt with extensively elsewhere.
Statutory framework for contaminated land
It is important to appreciate that the Statutory Regime has a discrete place within the overall statutory framework as it applies to contaminated land. The following categorisations show which legislative provisions apply in which cases.
- Development of contaminated land will continue to be dealt with by planning laws and remediation requirements imposed as part of the planning permission. The local planning authority would, in most cases, require an investigation of the extent of contamination at a brownfield site and, if contamination is identified, would require as a condition of the planning permission that the contamination is remediated to a standard suitable for the proposed use.
- In cases where land is causing a nuisance or is prejudicial to health by reason of the condition which it is in, it could fall within a list of prescribed statutory nuisances in Part III of the Environmental Protection Act 1990 ("EPA"). Under these statutory nuisance provisions, the local authority is required from time to time to cause its area to be inspected to identify statutory nuisances and then to serve an abatement notice requiring works to abate that state of affairs. Once the Statutory Regime comes into force, the statutory nuisance provisions will generally cease to apply to most cases of contaminated land.
- It is intended that the Statutory Regime will not apply to contamination resulting from a waste management activity licensed under a current waste management licence issued pursuant to Part II of the EPA. Once a licence has been surrendered, the Statutory Regime will apply to the site but under Section 39 of the EPA, the Environment Agency is not permitted to accept the surrender of a waste management licence until it is satisfied that the condition of the land - as it relates to the treatment, keeping or disposal of waste only - is unlikely to cause pollution of the environment or harm to human health. However, the relationship between these waste management laws and the Statutory Regime could be exceedingly complex. For example, the Statutory Regime may still apply to a waste management site even while there is a current waste management licence if there is historic contamination which was present before the licence was issued or if there is contamination caused by a current activity not related to the licence.
- The Statutory Regime will also not apply to land which is or ought to be controlled by an integrated pollution control authorisation where the powers of either the Environment Agency in England and Wales or the Scottish Environment Protection Agency under Section 27 of the EPA may be exercised to remediate the site and recover the costs of so doing. It is also worth noting that site restoration after closure of the installation is a feature of the Integrated Pollution Prevention and Control Directive (96/61/EC). The Directive is to apply to all relevant new installations in the UK from 30 October 1999 and all relevant existing installations from 30 October 2007.
- Legal action in cases of contaminated land causing pollution of waters may be more likely under other legislation, rather than the Statutory Regime. Under amendments to the Water Resources Act 1991, the Environment Agency will be permitted to serve works notices requiring remediation works where land is in such a condition that controlled waters are, in simplified terms, being polluted or are likely to be polluted (Sections 161A - D of the Water Resources Act 1991 which have yet to be brought into force). The interaction of these two regulatory regimes is still uncertain and there is clear duplication although the Government has promised to introduce guidance to ensure the two pieces of legislation do not unduly overlap in practice.
On a non-statutory basis, individuals will have recourse against those who cause contamination or pollution under common law rights of negligence and, more particularly, nuisance (where the aggrieved individual has an interest in land which is harmed). This is in addition to specific contractual rights, e.g. the covenants given by a tenant in a lease.
Statutory contaminated land
The Statutory Regime provides for the first time in the UK a statutory definition of contaminated land ("Statutory Contaminated Land"), which is land:
"in such a condition, by reason of substances in, on or under the land, that:
(a)significant harm is being caused or there is a significant possibility of such harm being caused; or
(b)pollution of controlled waters is being, or is likely to be caused."
The Statutory Regime also seeks to adopt, so far as is practicable, the polluter pays principle. Liability under the Statutory Regime will lie in the first place with those who "caused or knowingly permitted" the contamination of the land (known as Class A appropriate persons). If no Class A person can be found "after reasonable enquiry" the owner or occupier of the site (if not already identified as a Class A person, e.g. by knowingly permitting contamination to continue) may be liable and will be a Class B appropriate person.
Risk and pollutant linkages
The draft statutory guidance indicates that land will not be identified as Statutory Contaminated Land unless a pollutant linkage or "source, pathway, target" relationship has been identified. Therefore, the mere presence of contaminants (described in the guidance as the "source") alone should not result in the land being categorised as Statutory Contaminated Land. The local authority will have to identify a complete pollution linkage which connects the source with the receptor.
In most cases, the local authority will have responsibility for identifying Statutory Contaminated Land, unless it is a "special site" (e.g. sites where petroleum has been purified or refined are likely on the basis of current draft guidance to be special sites) and therefore the responsibility of the Environment Agency. Once the local authority has identified a pollutant linkage, it must undertake a risk assessment to determine whether the pollutant linkage gives rise to significant harm or a significant possibility of such harm or pollution of controlled waters occurring. "Harm" is defined by statute as:
"harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property."
What amounts to significant harm is described in the draft statutory guidance for a number of different receptors. For example, in the case of human beings, significant harm is defined as:
"death, serious injury, cancer or other disease, genetic mutation, birth defects, or the impairment of reproductive functions. Disease is to be taken to mean an unhealthy condition of the body or some part thereof…"
The second part of the definition of contaminated land relates to pollution of controlled waters. Land will be designated as Statutory Contaminated Land as a result of the pollution of controlled waters (i.e. including surface waters and groundwaters) if such waters are polluted and the local authority can identify a pathway from the contaminants to them. It is important to note that the definition of Statutory Contaminated Land does not impose the requirement of "significant harm" or even "harm" in cases of water pollution. This part of the definition merely requires pollution or the potential for pollution. Further, it is also possible that "pollution" as a legal concept does not in itself necessarily involve any significant degree of harm. For example, the courts have held in cases dealing with prosecutions for water pollution offences that a change in the colour or even the temperature of water amounts to pollution. Therefore, there is potentially a greater risk that land in the vicinity of controlled waters will be regarded as Statutory Contaminated Land under the Statutory Regime, despite there being only low levels of contaminants present in the soil, if the presence of such contaminants is resulting in the pollution of controlled waters - even in cases where little or no harm is being caused.
Conclusions
The Statutory Regime will be just one of a number of legal powers in the overall statutory framework addressing contaminated land. Whilst the Statutory Regime may overlap in places with other legislative provisions it would appear that the general intention is that it should not apply where there are existing statutory requirements capable of providing a suitable remedy for relevant contamination. Where a site is redeveloped and needs to be cleaned up for a more sensitive use, e.g. a residential use, remediation will be addressed by the planning regime. Where contamination is caused by on-going activities such as waste management and heavy industrial processes, this will continue to be dealt with by the waste management licensing regime and the integrated pollution control regime under the EPA.
Furthermore, the Statutory Regime will not apply purely because there are contaminants present. The Statutory Regime is based on a site specific approach whereby land will only be identified as Statutory Contaminated Land where it is causing a problem or capable of causing a problem, a problem being "significant harm" or "pollution of controlled waters".
It is not possible to determine the full impact that the Statutory Regime will have until the statutory guidance has been finalised and the system is finally in force. The draft statutory guidance for the Statutory Regime requires each local authority to "prepare, adopt, publish and implement a formal written strategy for the inspection of its area". Such policies are required to be published within fifteen months of the Statutory Regime coming into force but as each local authority is responsible for its own strategy and implementation, enforcement of the Statutory Regime may not always be consistent. Possibly in the early years of the Statutory Regime's implementation, local authorities may prioritise their enforcement activities and concentrate on high risk sites, such as residential homes built on former contaminated industrial sites or landfills.
Anthony Hobley
