What does the impending close of the funding programme for contaminated land enforcement in England mean for owners and developers of contaminated sites?

The government announced back in 2013 that the contingency fund, supplied by DEFRA and available for contaminated land projects (CLCP) to investigate and remediate contaminated land, will be cut completely from April 2017.

There are around 300,000 hectares of contaminated soils across the UK, resulting in part from our industrial heritage. Many of these brownfield sites are being purchased for development.

Remediation of contaminated land can be dealt with through the planning system, with environmental conditions imposed within planning consents to ensure remediation of the land. It is also dealt with by voluntary measures or by local authorities pursuant to Part 2A of the Environmental Protection Act 1990.

Under Part 2A of the Environmental Protection Act 1990, local authorities have a duty to identify and ensure remediation of contaminated land sites which pose an unacceptable risk to human health and the environment.

The obligations under Part 2A will remain despite the imminent cut in funding and, will continue to require local authorities to serve notice on land owners if their land is assessed as contaminated. If those responsible for causing or knowingly permitting the contamination cannot be found, liability falls to the innocent land owner and occupiers to fund the remediation who, if eligible, could receive a grant for clean-up operations to ensure the land is remediated.

What will happen to these sites following April 2017?

The contingency fund has been reduced to £400,000 for 2015/16 from its peak of £17,500,000 in 2009/10. Therefore local authorities and the Environmental Agency are now having to prioritise cases and allocate funds only to cases requiring urgent remediation and closing down ongoing projects.

Following April 2017, it is likely that councils will be less proactive in investigating potential contamination under Part 2A., and therefore the planning system and voluntary actions of owners and occupiers will be relied upon in order to remediate sites. This could potentially lead to developers incurring higher clean-up costs, and low value sites, which are economically unviable for regeneration, being left contaminated. Innocent land owners held to be liable for contaminated sites without the means to undertake remediation works will no longer receive the support needed to effectively clean up the land.

The government has announced its ambition to manage soils sustainably by 2030, but with the proposed cuts in funding increasing numbers of contaminated land sites may be left untreated, resulting in the spread of contamination taking them further away from this goal.