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The contaminated land regime is about to change but do not expect too much
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Draft statutory guidance on the contaminated land regime under Part 2A of the Environmental Protection Act 1990 was laid before Parliament on the 7th February 2012. If all goes smoothly the guidance will come into force on or around 6th April 2012.
The Water Act 2003 (Commencement No.11) Order 2012 was also made on 2nd February and comes into force on 6th April 2012. The Order amends the water-limb of the contaminated land definition, so that the regulators will now need to show that there is significant water pollution or a significant risk of significant water pollution before land can be designated as contaminated.
This is the first real change (expect minor amendments in 2006) to the regime since it was introduced in 2000. The regime has long been criticised on the basis that the statutory guidance does not adequately explain how to decide if land is contaminated, for example the uncertainty when there is “significant harm” or a “significant possibility of harm”. The result has led to inconsistent approaches by regulators; taking too long considering low risk sites and insufficient targeting of higher risk sites. The same technical uncertainty has led to problems for brownfield redevelopment, which local authorities setting (arguably) too high a standard of remediation with excessive costs being borne by developers. In many cases, months of negotiations with consultants and regulators are necessary in such developments.
The new guidance has been described as ‘fine-tuning’ the current regime. So what key changes can we expect?
The guidance will be condensed from 190 pages (of statutory and non-statutory guidance) to a stand alone 74 page document all of which is statutory guidance and sets the broad aims of the regime. It clarifies that the regime should aim to strike a reasonable balance between identifying and removing unacceptable risks to human health and the environment, while ensuring that the burdens faced by individuals, companies and society as a whole are proportionate, manageable and sustainable. The starting point under the guidance is that land should not be identified as contaminated unless there is good reason to consider otherwise.
To improve consistency and assist regulators in determining whether land is contaminated under the regime, the guidance introduces a traffic light test:
Red Clearly high risk – prioritise action
Amber/red Further consideration – then decide contaminated land
Amber/green Further consideration – then decide not contaminated land
Green Clearly low risk – take no action.
Further technical guidance is planned (and will be required) to ensure this test assists the regulators. However, the test should help focus regulators on high risk sites.
Other changes include new risk assessment guidance, including the process of risk assessment, using external expertise, use of generic assessment criteria and a new requirement for regulators to produce risk summaries. The guidance also clarifies that normal/background levels of contamination are very unlikely to cause land to qualify as contaminated.
The hardship test for the recovery of costs of remediation has also been clarified so that it cannot be interpreted as an ‘all or nothing’ test; it may be reasonable for a person to pay for part of the cost of remediation.
The new guidance is likely to receive mixed reviews. It is expected that developers will welcome it as it should assist the development of brownfield sites. However due to this, there been some criticism from other camps with the Chartered Institute of Environmental Health expressing concern that the changes could “result in fewer sites being treated before they are built on”.
First though, Parliament must approve the guidance.