Introduction
The law controlling Contaminated Land is contained in the Environmental Protection Act 1990 (the Principal Act). It was inserted by the Environment Act 1995 into Part ll of the Principal Act as part llA comprising sections 78A to 78YC.
This is a complex piece of law which endeavours to enforce the “polluter pays” principle by ensuring that clean up operations are charged to the firm or individual causing or responsible for the contamination. As part of their functions local authorities are required to identify land which is contaminated within their areas and are tasked with ensuring that the land identified is made fit for the use to which it is intended to be put.
What is contaminated Land?
This is land where a "pollution linkage" exists. This is when there is a source of contamination and a receptor for that contamination which are joined by a pathway along which the contamination can travel.
Receptors can be the natural environment, property, animals and human beings. In order for contamination to exist for the purposes of Part llA there must also be a significant possibility that significant harm will be caused as a result of the pollution linkage. At the end of any clean up this significant possibility of significant harm must no longer exist. Complete clear up of the land is not necessary so long as the pollution linkages are broken.
Action that the Council Takes
Once we have evidence that there is a Significant Possibility of Significant Harm (SPOSH) we will declare the land as Contaminated Land and at this stage a clean up is required. The Council can either accept a remediation plan which will ensure that the land is cleaned up or we may serve remediation notices requiring works to be done. Along with these powers we have certain rights of entry to contaminated land in order to carry out testing and to remediate and recharge our costs.
The second way that Contaminated land can be dealt with is when the land is developed. At the planning stage, if there is a history of land use which may have caused contamination, the developer may be required to submit a site investigation report. The Council will consider this report and subsequently agree a remediation plan with the developer.
The objective is to ensure that when remediation is completed the site will not be in such a condition that it could be declared contaminated land.
Who Is Responsible?
The polluter is known as a Class A Person and is always the first person a local council will approach over clean up of a site. If that person cannot be found the council will look for a Class B Person, who is the owner for the time being of the site in question. Before the present owner becomes responsible for the clean up there are various conditions to be met which could remove their liability.
Local authorities are not responsible for cleaning up the land unless it is not possible to trace either the person who caused the contamination or the owner for the time being who is liable. If that happens the site becomes what is known as an ‘orphan site’ and clean up becomes a Council responsibility and is paid for from the public purse.
How is Contaminated Land Cleaned Up?
There are various ways that a clean up can proceed. The simplest may involve capping the pollution so that the linkage is broken. A ‘Dig and Dump’ exercise may remove the polluted soil and replace it with clean certified soil but this is not so well received these days as it merely moves the pollution from one place to another. Vapours and gasses may be treated by thermal methods. Flammable gasses may be actively pumped from soils and flared off or burnt in engines or they may be passively vented. Chemicals may respond to an active barrier through which they pass changing into something more benign. Sometimes the placing contaminated soil in what are called windrows in the open air may remove volatile chemicals by evaporation. Soils may be washed and replaced to deal with soluble matter. Monitored natural attenuation (leaving it to decay naturally and checking regularly) also has a place in the armoury of techniques.
There are many other techniques which may be used.
Information on Contaminated Land
Contaminated land under Part llA is entered in a public register along with details of remediation notices, remediation plans accepted, etc.
At present Gosport is identifying and prioritising the possible sites and there have been no formal declarations so far.
Councils should have a contaminated land policy statement and update it regularly. Gosport Borough Council’s policy is checked annually and updated where necessary and copies are available from the Environmental Health Section at the Town Hall or can be downloaded from our web site.
Informal guidance on developing contaminated land was prepared by the Hampshire and Isle of Wight Contaminated Land Liaison Group and can be downloaded here.
You can also download a copy of our current strategy for dealing with contaminated land.
