Devolution of the Contaminated Land Regime

October 29, 2015
Adeptus.

The Environmental Protection Act 1990, Part 2A, is the underlying basis of contaminated land regulations, but guidance as to its implementation varies, as responsibility for contaminated land has been devolved within the UK.

Contaminated Land Regulation in the UK

England

The revised ‘Contaminated Land Statuary Guidance’ (concerning part 2A of the Environmental Protection Act 1990) was issued in 2012. This is advice to local authorities concerning the implementation of the act. The ‘polluter pays principle' is an essential feature of the act and the associated guidance.

The National Planning Policy Framework (NPPF) was also issued in 2012. The aim of this document was to produce a simpler framework for planning decisions, while prioritising sustainable development. Section 121 of the NPPF covering planning permission and development control for contaminated land states that after remediation, as a minimum, land should reach a standard such that it cannot be classed as contaminated under the 1990 Act. This instruction is echoed by The National Planning Practice Guidance (NPPG) (land affected by contamination section), which was revised in 2014. The latter guidance is the most recent concerning contaminated land in England, and gives a simple outline of how planning authorities should deal with contamination issues where planning permission is sought, but lacks any great detail.

Wales

The situation in Wales is similar to that in England. A revised version of ‘Contaminated Land Statuary Guidance’ (concerning part 2A of the Environmental Protection Act 1990) was issued in 2012. This is the same as the equivalent English document, merely lacking the introduction by the UK government minister.

As far as planning goes, the relevant document is Planning Policy Wales (7th edition, 2014, chapter 13, sections 13.5, 13.6 and 13.7). The sections are somewhat similar, but not identical, to the equivalent English advice.

Scotland

Revised ‘Contaminated Land Statuary Guidance’ was issued 2006. As in England and Wales, the ‘polluter pays’ principle underlies the guidance. An updated version of this guidance has been promised, but has not yet appeared at the time of writing.

Development of contaminated land is dealt with by Planning Advice Note 33 (PAN 33), issued back in the year 2000. Updated advice is needed, but has not been issued at the time of writing.

In recent years, the Scottish government has been considering introducing numerical guidance on the permitted levels of common contaminants. This would mean that local authorities would be clear that a particular contaminant had to be reduced to a specific level. Such an approach has been largely abandoned in England, where the government considered it would give rise to too many difficult scientific and legal challenges. It remains to be seen whether the Scottish government will proceed with such specific limits or not.

Northern Ireland

In Northern Ireland there currently exists a strange situation, in that there is no proper contaminated land regime in force. Part 3 of the Waste and Contaminated Land (NI) Order 1997, which was similar to the Part 2A regulations in the rest of the UK, has never been implemented, due to concerns about the cost. Thus the ‘polluter pays’ principle cannot necessarily be enforced in Northern Ireland. It may be that the legislation will be implemented in the future, but at the time of writing no date has been set for this to happen.

Local Authority Resources for Contaminated Land

Local authorities in all parts of the UK face constricted budgets, which in many areas has led to a decrease in the number of personnel available to deal with land contamination issues. One answer to these challenges is to share officers and equipment. A number of local authorities have set up sharing schemes with their neighbours in order to obtain increased value for money. Nonetheless, the availability of resources varies significantly from one local authority to another.

Devolution has led to increasing differences in the way contaminated land issues are dealt with across the UK. Such trends are only likely to increase in the future. Expert advice from qualified consultants should always be sought when dealing with contaminated land, so that any remedial measures meet the regulations currently in force in the area concerned.

Useful Links

DEFRA, ‘Environmental Protection Act 1990: Part 2A, Contaminated Land Statuary Guidance’, 2012. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/223705/pb13735cont-land-guidance.pdf

Department for Communities and Local Government, ‘National Planning Practice Guidance (Land affected by contamination)’, 2014. http://planningguidance.planningportal.gov.uk/blog/guidance/land-affected-by-contamination/

Welsh Government, ‘Contaminated Land Statuary Guidance’, 2012. http://gov.wales/docs/desh/publications/130712contaminated-land-statutory-guidance-2012-en.pdf

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