If ever there was a piece of legislation which did more to alter the behaviour of those working in the property sector by its existence and the threat of its application, rather than actually being applied, it is Part 2A of the Environmental Protection Act 1990 (more commonly known as “the contaminated land regime”).
Although the last 12 years have only resulted in a four-figure number of “contaminated land” designations (and many fewer formal clean-up requirements in “remediation notices”), local authorities now routinely include ground investigation and remediation conditions in all but the smallest-scale planning permissions.
The regime backs up these planning conditions. If the condition is not properly complied with, quite apart from the usual Breach of Condition and Enforcement Notices, the contaminated land regime can be a potent additional enforcement route.
In private corporate and real estate deals, the ever-present perceived threat of historic clean-up means that draftsmen spend many hours negotiating not just who is left with contractual liability, but what steps should practically be taken to clean up worst affected land to avoid any liability attached to anybody in the future. This is not only a better option than endless contractual wrangle, but also results in land actually being cleaned up voluntarily.
There have only been a handful of legal cases based on the regime since it was introduced, and Part 2A itself and the essential statutory guidance have been left relatively untouched.
There are now, though, a number of changes.
One change seems simply to recognise current practice. The present definition of “contaminated land” as it affects controlled waters (ie, surface and ground and some coastal waters) is land which is causing or likely to cause “pollution”. This will change to land causing or likely to cause “significant pollution” to controlled waters.
The change is made in the Water Act 2003 (Commencement No. 11) Order 2012 dated 2 February 2012. It came into force on 6 April 2012. This change was a long time coming; it had been trailed, as the Commencement Order suggests, as long ago as 2003.
When the regime was introduced in 2000, there was some criticism that this trigger for pollution of controlled waters was too trivial. Over the last 12 years any pollution could in theory have triggered the need for land to be classed as “contaminated”. However, local authorities, from day one, have worked on a risk-based assessment approach and generally only raised concerns if controlled waters were being polluted significantly.
To accompany the amendment and to make a number of other updating changes will be new statutory guidance, which will be considerably shorter than the existing version.
One important factor in the new guidance is the way that it encourages local authorities to assess carefully whether getting involved in a potentially contaminated site will be a positive intervention. Although it has come in for some criticism (in that it still does not give a step-by-step route-map to local authorities), it is more helpful than the replaced guidance because it gives useful pointers on what is, and isn’t, contaminated land. It should all mean a lot less head-scratching by regulator and property professional alike and, critically, could reduce the need to commit funds for what can be long-running scientific assessments in doubtful cases. The new guidance encourages local authorities to take a much more robust approach and will give clear indications as to when land is not likely to be contaminated. It should be available on Defra’s website shortly so that it roughly coincides with the controlled water changes.