Overlapping Regulatory Functions
4.0 Overview
Part 2A should only be used to secure remediation of contaminated land where no appropriate alternative solution exists. There are several regulatory functions that provide local authorities with powers to deal with land contamination including planning, building control and The Environmental Damage (Prevention and Remediation) Regulations 2009.
Action under Part 2A may be precluded where action under these regimes results in a desirable outcome, however, these should be assessed on a case-by-case basis. In the commercial site example given in the previous section, the planning process took over dealing with land contamination excluding action under Part 2a.
4.1 Planning Process
In February 2019 the Government published its revised National Planning Policy Framework (NPPF) which refers to brownfield and contaminated land as follows:
“Planning policies and decisions should:
give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs, and support appropriate opportunities to remediate despoiled, degraded, derelict, contaminated or unstable land
Paragraph 118 of the NPPF:
“…. contribute to and enhance the natural and local environment by….. remediating and mitigating despoiled, degraded, derelict, contaminated and unstable land, where appropriate.”
Paragraph 170 of the NPPF
“…ensure that:
a) a site is suitable for its proposed use taking account of ground conditions and any risks arising from land instability and contamination. This includes risks arising from natural hazards or former activities such as mining, and any proposals for mitigation including land remediation (as well as potential impacts on the natural environment arising from that remediation);
b) after remediation, as a minimum, land should not be capable of being determined as contaminated land under Part IIA of the Environmental Protection Act 1990; and
c) adequate site investigation information, prepared by a competent person, is available to inform these assessments.”
Paragraph 178 of the NPPF
“Where a site is affected by contamination or land stability issues, responsibility for securing a safe development rests with the developer and/or landowner.”
Paragraph 179 of the NPPF
“It is important therefore that the Contaminated Land Officer maintains close liaison with the planning department to ensure that, where land affected by contamination is to be developed, site investigation and, where necessary, remediation is carried out to the appropriate standard. The Contaminated Land Officer would provide technical assistance to the planning department in assessing planning applications and site investigation reports presented by developers.”
4.2 Building Control
Part C1 of Schedule 1 of the Building Regulations (2010, updated 2013) introduced the requirement for reasonable precautions to be taken to avoid danger to health and safety caused by contaminants on or in the ground covered, or to be covered by the building and any land associated with the building.
Technical guidance issued by the HM Government in the form of The Building Regulations 2010 Approved Document C – Site preparation and resistance to contaminates and moisture (2010, updated 2013), provides advice on site preparation and resistance to contaminants in order to mitigate the effects of contaminants, whilst recognising the connection between building control, planning and environmental protection.
The responsibility for securing a safe development rests with the developer and/or landowner, who should be made aware that actions or omissions on their part could lead to liability being incurred under Part 2A.
The building control function has an increasingly important role in securing a safe development with the rising number of developments being constructed using permitted development rights that do not require planning permission. Where contamination potential exists, restrictions on building approvals should be used to ensure developers undertake appropriate site assessments and address any unacceptable risk to human health and safety as part of the development.
4.3 Environmental Damage Regulations
The Environmental Damage (Prevention and Remediation) Regulations 2009 (‘EDR Regulations’) (S.I. 2009/153) as amended in 2015 and 2017 provide a mechanism to deal with environmental damage to land, water or ecosystems where this occurs to businesses after March 2009. They rely on the polluter pays principle requiring operators of commercial activity to have in place measures to prevent environmental damage and take remedial action if it does occur.
The term ‘environmental damage’ has a specific meaning in the regulations and is damage that adversely affects land, surface or groundwater, marine waters, protected species or natural habitats or a site of special scientific interest. The Local Authority has enforcement responsibilities in relation to damage to land where this results in a significant risk of adverse effects on human health. Enforcement responsibility for damage to water is held by the Environment Agency, whilst damage to natural habitats or protected species or sites of special scientific interest is enforced by Natural England.
4.4 Environmental Permitting
The Environmental Permitting Regulations (England and Wales) 2016 (as amended) were introduced on 11 December 2016 replacing the 2010 regulations. These Regulations cover industrial processes, waste operations, water discharges, groundwater activities and radioactive substances and give the enforcing authority the ability to apply conditions to permits to control activities and discharges to land, air and water.
Operators holding an environmental permit are liable for the prevention and remediation of environmental damage under the EDR Regulations.
4.5 Radioactive Contamination
The Radioactive Contaminated Land (Enabling Powers) (England) Regulations 2005 (SI 2005/3467) (as amended in 2010 and 2018) and the Radioactive Contaminated Land (modification of Enactments) (England) Regulations 2006 (S.I. 2006/1379) (as amended 2007-2018) make provision for Part 2A to be extended for the purpose of identification and remediation of radioactively contaminated land where this is causing harm to human health only.
4.6 Waste Management Licensing
The Environmental Protection Act 1990 Part II requires all waste disposal and processing sites (including scrap yards) to be licensed. Contamination causing harm, or pollution of controlled waters, should be dealt with as a breach of the conditions of the licence.
In exceptional circumstances, where the problem arises from an unlicensed activity, it is possible that Part IIA could apply. An example of this would be a leak from an oil tank outside the tipping area. Where there has been an illegal tipping of controlled waste (fly tipping) this should also be dealt with under the Environmental Protection Act 1990 Part II (Section 59).
4.7 Pollution of Controlled Waters
Where a pollution incident has occurred and the pollutant is discharged directly into the body of water and not arising from land, or it has left land and it is entirely in the body of water (i.e. the land is no longer causing pollution), the Water Resources Act 1991 section 161 will apply.
4.8 Risk of Harm to Employees
Where there is a risk of harm to persons at work from land contamination, this should be dealt with under the Health and Safety at Work Act 1974. The enforcing authority will be either the Health and Safety Executive or this Council depending on the work activity.
4.9 Risk of Harm Following an Incident
Where there has been a release, explosion or other major incident, which has caused land contamination, the restoration should be carried out under the Control of Major Accident Hazard Regulations 1999 as part of the COMAH on site / off site emergency restoration plan.