The Regime (set out in Part 2A of the Environmental Protection Act 1990 ) provides a mechanism for cleaning up land which is contaminated. Around 300,000 hectares of land are thought to be affected by legacy contamination due to the UK’s industrial past.
Liability under the Regime
The key principle is that the “polluter pays”. This means that whoever has caused or knowingly permitted contamination should pay for its remediation (Class A person). Where the causer/knowing permitter cannot be found then the current owner or occupier of the site at the time it is designated will be liable (Class B person). Where no Class A or Class B person can be found the cost of remediation falls on the State.
Local authority inspections
The Regime requires that local authorities inspect their respective areas from time to time to identify land which may be “contaminated land”. The statutory guidance which accompanies the Regime explains how land should be inspected and prioritised. To date the main reason given by local authorities for designating a site is an unacceptable risk to human health.
Funding for Remediation
Despite the “polluter pays” principle the Environment Agency’s latest report on Dealing with Contaminated Land in England, April 2016 confirms that at the majority of remediated sites the costs fell to the local council or the Environment Agency. Whilst the polluters/knowing permitters were often pursued to meet the costs of remediation, they could not be found or be made to pay in the majority of cases. Only in 9% of cases did the original polluter fund the remediation. The current owner/occupier funded the remediation in a further 8% of cases.
Funding in the majority of cases where remediation was undertaken by the local authority was through direct funding from DEFRA in the form of Contaminated Land Capital Grants. These are to be phased out completely from April 2017.
The Environmental Audit Committee’s Soil Health report, published 2 June 2016 has highlighted concerns that due to the removal of this funding local authorities now have no budget to investigate or remediate contamination.
The Environmental Audit Committee has called for DEFRA to consider an ongoing dedicated funding stream for contaminated land. It has also called for the Department for Communities and Local Government to make clear what proportion of funds allocated to local authorities through other measures relate to their statutory contaminated land duties.
Central government appears to think that land contamination is an issue for local government and should be funded by individual Local Authorities. Against the current financial climate that is likely to be a challenge.
The planning regime does already deal with the remediation of the vast bulk of land contamination in the UK and for high value attractive sites that will remain the best option. However, the Regime has provided a stop gap to ensure that where there are significant environmental/ human health risks there is a method of ensuring even unattractive sites will be remediated.
The extent to which this will continue to happen going forward is currently an open question!