Contaminated land is an issue which is not going to go away, and for those who have responsibility for its management, or who wish to sell, develop and/or acquire relevant land, obtaining appropriate reports which provide the information needed to understand and therefore manage the risks is crucial.
Receipt of a report can sometimes, however, signal the start of a much longer process of discussion and debate between experts acting for, for example, the buyer and seller, and with the regulator in terms of whether remediation is needed and if so what that should comprise. The National Quality Mark Scheme for Land Contamination Management aims to speed up this process, and provide assurance to all concerned that quality advice is being given.
HOW DOES IT WORK?
The scheme came about through the work of the Land Forum (which brings together private and public sector organisations to look at current and future land issues), in recognition of the variability and quality of reports on land condition. In simple terms, suitably qualified and experienced persons ("SQP") must register under the scheme. They can then sign off reports, ensuring that:
- The work has been planned, undertaken and written up by competent people who have relevant experience and/or qualifications in their respective disciplines.
- The underlying data has been collected in line with established good practice procedures and its collection has been subject to control via established quality management systems.
- The data has been processed, analysed and interpreted in line with established good practice and any specific advice provided by the relevant regulatory authorities or regulatory bodies.
- The reports set out recommendations or conclusions that are substantiated by the underlying data and are based upon reasonable interpretations.
- Any limitations in the data or uncertainties in the analysis are clearly identified along with the possible consequences of such limitations.
A declaration form has to be completed by the SQP and a fee paid. The form is then authenticated and sent to the SQP, and appended to the relevant report to which the quality mark is also applied.
The scheme can cover a range of reports, from desk studies, through to site investigations, remediation strategies, remediation verification and monitoring reports. It is also applicable in a number of different contexts, for example in relation to planning, Part IIA Environmental Protection Act (that is, the contaminated land regime), and relevant aspects of environmental permitting (for example soil or groundwater pollution occurring as a result of a breach of permit conditions, or indeed for baseline condition reports used in permit applications).
VIEW OF THE REGULATORS
During the consultation on the scheme, concerns were raised by local authority contaminated land officers as to its intention. It was made clear as a result of such concerns, that the scheme would not mean an end to the role of contaminated land officers, and indeed was voluntary. It was also stressed that contaminated land officers are not obliged to accept quality marked reports.
It is interesting to note that the Environment Agency has issued a position paper stating that when assessing compliance with respective legislative regimes, it will take account of whether or not information provided to it has been prepared under the scheme. In particular, it notes that where quality marked submissions conclude that pollution is being prevented or managed satisfactorily, the Environment Agency will take the view that no further regulatory intervention or enforcement is necessary.
The scheme is still in its infancy, and the Agency has made clear that it will continue to engage in the active review of a limited number of higher risk cases and will audit others on a random basis in order to monitor the effectiveness of the system. It also makes clear that if it is found that the scheme is failing to protect human health or the environment, it will withdraw its position and will revert to considering its input to the review of regulatory compliance on a case by case basis.
In terms of the Agency's relationship with local authorities, the position paper notes that it will encourage local councils to consider referencing the scheme in any standing advice to developers regarding land contamination management, and that where land contamination may be an issue for a prospective development, the Agency will encourage developers to employ specialist consultants working under the scheme.
How well the scheme works in practice is yet to be seen, but it is a development which is important to be aware of when appointing consultants in relation to contaminated land, as it is hoped that the scheme will go some way to smoothing the regulatory process.