Earlier in 2015 a long-awaited DEFRA-commissioned report on the state of contaminated land in England, entitled ‘Examination of contaminated land sector activity in England’, was finally published. A similar report was prepared covering Wales. The authors of the report were from the not-for-profit organisation CL:AIRE (Contaminated Land: Applications in Real Environments), Cranfield University, and Bone Environmental Consultant Ltd, along with two independent consultants. The authors surveyed local authorities in order to establish how they had dealt with contaminated land remediation issues between the year 2000 (when the Part 2A regime was introduced) and the end of 2013.
Around 11,000 contaminated sites had received a detailed inspection by the end of 2013. These inspections were nearly all funded by either local authorities (64%) or directly by central government (33%); only 1% of inspections were paid for by third parties. Over 500 English sites had been classified as Part 2A sites; land remediation has since taken place on the majority of these.
The Part 2A sites were contaminated by a wide variety of substances. Metals and metalloids were the most common contaminants, with arsenic and lead being found in over half the sites. The polycyclic aromatic hydrocarbon (PAH) benzo[a]pyrene (B[a]P) was the most prevalent organic contaminant, being found at around half the sites. B[a]P is a carcinogenic compound is formed during combustion, and has many potential sources, such as wood, coal and cigarette smoke, coal tar, and exhaust fumes. Benzo[a]pyrene is typically found alongside and in mixture with other frequently detected PAH congeners.
Based on the response from local authorities, the authors of the report estimate that there are around 10,000 sites in England that require further detailed inspection. However, this estimate has been challenged. Howard Price of the Chartered Institute of Environmental Health (CIEH) stated that the figure of 10,000 was not believable, since in 2009 local authorities had only inspected 10% of potentially contaminated land.
Local Authorities Vary Widely on Contaminated Land Investigation Backlog
Local authorities in England were asked how long it would take them to complete detailed inspections on outstanding sites with suspected land contamination issues. The majority (82%) responded that they did not know. Only five authorities (out of 197) claimed that they had no outstanding sites, while the remaining councils gave varying answers of the time required, ranging up to ‘over 100 years’ in a few cases.
All the councils had produced an inspection strategy, following government requirements. However, 49% reported that they had fallen behind the targets set by their strategy, 30% were on target, while 5% reported that they had made no progress at all.
In practice, changing land use and the discovery of hitherto unknown sites mean that contaminated land remediation will continue well into the future in many areas, even if all known sites have been currently dealt with. The overall picture is that the problem of land contamination varies widely across the country, with some local authorities having dealt with all or nearly all their sites, while others have a significant backlog with which they are struggling to cope.
Cuts to Council Contaminated Land Funding
The survey showed a fall in the numbers of council staff dealing with contaminated land. It was found that 78% of local authorities had one or fewer full time equivalent Officers dealing with land contamination issues, while 52% had lost Officer resources compared with 2007. In practice, many councils have a single Officer dealing with contaminated land, who may also have to deal with many other areas, such as air quality, dealing with reported cases of ‘nuisance’, etc. It is interesting to note that the survey authors sometimes struggled to identify who was responsible for land contamination for many local authorities. There is no central contaminated land register, and e-mails to councils were often not answered. In some cases it took several phone calls before the correct contact was identified.
From 1st April 2017 the government will no longer give contaminated land funding as capital grants to local councils. Some 43% of local councils reported that they would have to amend their inspection strategy in light of these changes. The amount of money available has already been greatly curtailed, being restricted to continuing projects and emergencies. These grants have been used by councils for investigation and land remediation of contaminated sites under the Part 2A legislation.
The survey showed that funding for contaminated land remediation from external sources was only secured in 8% of cases, so it seems unlikely that sufficient funds will be available to replace the grants. Both local authorities and the Environment Agency have attempted to recover costs from either landowners or polluters. In 61% of cases the polluter was pursued, while in 26% of cases the landowner or occupier was pursued. ‘Orphan’ sites, where no responsible person could be identified, accounted for 4% of cases.
Most commentators believe that the removal of grants effectively brings to the end the 2A regime. However, councils still have statutory responsibilities to act, but lack the financial resources to be able to do so. They could still be liable to legal challenges over their failure to investigate or remediate contaminated sites.
In the case of groundwater contamination, local authorities may be able to persuade the Environment Agency to act, using either the Water Resources Act or the Environmental Permit regulations. However, in cases of land contamination, it is not clear how authorities will fulfil their responsibilities, since it is unlikely that significant funds will be able to be available from elsewhere in their budgets. In practice, it is likely that contaminated land investigation and remediation will increasingly be handled via the National Planning Policy Framework and planning system in general. Building on contaminated land may also be affected, since it’s more likely that developers will have to bear the cost of land remediation, as significant council funds will no longer be available to bring enforcement action against the original polluter.
Defra website, ‘An examination of contaminated land sector activity in England and Wales – SP1011.’ http://randd.defra.gov.uk/Default.aspx?Menu=Menu&Module=More&Location=None&Completed=0&ProjectID=136
Brownfields Briefing website, ‘Part 2A is fading in England and Wales’, (30th March 2015). https://brownfieldbriefing.com/36522/part-2a-is-fading-in-england-and-wales