Summary and implications
The Government has recently consulted on proposed changes to the Contaminated Land Regime in England and Wales under Part 2A Environmental Protection Act 1990 (the CLR).
The changes focus on:
- simplifying the statutory guidance that accompanies the legislation;
- creating an outcome-led regime which concentrates on protecting human health and the environment but without causing disproportionate burdens on society and businesses; and
- clarifying the guidance relating to risk assessment to enable local authorities to better determine when sites are “contaminated land” thereby dispelling the current inconsistency and uncertainty.
Due to its complex, costly and unwieldy nature, the CLR has been relatively ineffective during its 11-year history. The proposed changes to the CLR are therefore regarded by many as long awaited.
If implemented, they may have an important impact for those involved with potentially contaminated sites.
However, it is unlikely that we will see a marked increase in enforcement action under the revised regime. The clear message from the Government is that the place of the CLR sits firmly behind market-driven remediation under the planning system. Therefore, despite the Government’s intention to make the regime more workable and easier for local authorities to use, regulatory intervention is only likely to be taken where there is no prospect of redevelopment.
On 21 December 2010, the Department for Environment, Food and Rural Affairs (DEFRA) published a consultation paper proposing various amendments to the CLR. The consultation closes on 15 March 2011. Prior to the consultation, DEFRA held a series of informal discussions with specialist stakeholders, which revealed a general consensus that the Statutory Guidance (which underpins the CLR) required updating.
The need for change
It is estimated that there are around 300,000 hectares of land in England and Wales where historic activities could have led to contamination. According to figures published by the Environment Agency, between 2000 and early 2007 there were only 800 determinations of sites as “contaminated land” (some of which were multiple determinations of individual properties on larger sites).
This lack of progress is considered to have been caused by the complexity of the legislation and a lack of clear guidance and resources. This has resulted in local authorities being ill-equipped and uncertain as to how to implement the CLR. By way of example, the current Statutory Guidance does not adequately explain how to decide if land is “contaminated land”. This undermines the entire regime which the Government admits has led to inconsistent approaches being taken by local authorities when designating land as contaminated, as well as significant delays.
Despite much criticism of the CLR, DEFRA maintains that it has been a success and that the proposed amendments are not major changes, but rather “fine-tuning” of the existing regime.
However, what is surprising is the lack of amendment to the legislation itself, with the main focus on the accompanying Statutory Guidance. Also the consultation does not propose any substantive changes to the current provisions on the apportionment of liability, i.e. who will be responsible for clean-up.
There are, nevertheless, some potentially significant amendments proposed:
Click here for Key Proposals
More enforcement action under the CLR?
The broad objective of DEFRA’s proposals is to produce a regime that is clearer, simpler and in line with principles of good regulation. It aims to make the CLR more effective, placing much emphasis on helping local authorities understand how to use the CLR and when they should determine land as contaminated.
If the proposed changes do fulfil these intentions, it would be reasonable to assume that we may see greater enforcement action being taken. However, DEFRA has stressed that the place of the CLR sits firmly behind market-driven remediation under the planning system. It considers that the CLR supports the planning system and that regulatory intervention should be held in reserve for when there is no prospect of a market solution. For this reason, the CLR will remain a tool of last resort.
It is also likely that the Government’s spending cuts will have an impact on the activity levels of local authorities in this area. Previously, much of the inspection and investigation work was funded by government grants, which have now been significantly reduced.
That said, businesses who have potentially contaminated sites within their landbanks with no prospect of redevelopment in the near future should still remain alert to any renewed activity by the local authority in their area. DEFRA has indicated that it remains keen for landowners to bear the costs of remediation particularly where they stand to benefit from it financially.
The over-complexity, uncertainty and inconsistency created by the current regime has attracted much criticism and has produced ineffective results. The proposed simplification and clarification of the CLR is therefore to be welcomed. In particular, it is hoped that revised guidance for risk assessment will allow local authorities to dismiss low-risk sites more easily; target high-risk sites only; and move away from placing disproportionate socio-economic burdens on businesses which outweigh the environmental benefits of intervention.
However, the overall impact of the changes proposed by the consultation must be placed in context. Fundamentally, the legislation itself and the liability regime remains the same, as does the regime’s place in the remediation pecking order, that is, as a means of last resort where redevelopment is not anticipated.