Contaminated Land Notes

• 78A(2) – contaminated land is any land which appears to LA to be in such a condition, by reason of substances in, on or under the land, that (a) significant harm is being caused or there is a significant possibility of significant harm being caused; or (b) pollution of controlled waters is being, or is likely to be, caused. In determining this must follow guidance issued by S of S.

(4) – Harm means harm to health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property.

(5) – The questions (a) what harm is significant, (b) whether possibility is significant, shall be determined in accordance with guidance issued for the purpose by the S of S.

(7) – Remediation means – (a) assessing condition of land, (b) the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land or waters for the purpose (i) of preventing or minimising, or remedying or mitigating the effects of, any significant harm, or any pollution of controlled waters, by reason of which the contaminated land is such land; or (ii)of restoring the land or waters to their former state, and (c) subsequent inspections.

• 78B – Duty to inspect lands for contamination, notification upon designation.

• 78C + D – set out a procedure for a special site designation (particular cases of contamination).

• 78E(1) – Duty of authority to serve a remediation order if land is found to be contaminated. To be served on the appropriate person and must specify what they are to do in the way of remediation and the time limit to do those things.

(2) – Different remediation notices OK for different substances.

(3) – if multiple appropriate persons then notice must state proportions of costs.

(4) – remediation must be considered reasonable by authority having regard to cost and seriousness of harm.

(5) – in determining what is to be done by way of remediation, the standard to which land is to be remediated and reasonableness authority must have regard to guidance.

• 78F(1) – this decides who appropriate person is for responsibility.

(2) – Persons who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land.

(3) – (2) only applies so far as remediation done in response to substances which he caused or knowingly permitted to be present.

(4) – If person can’t be found then owner or occupier is an appropriate person.

(5) – If things are remediated but not caused by D as in (3) then owner or occupier are appropriate individuals.

(6) – If more than one qualify as appropriate then LA will decide on guidance if one will be labelled otherwise.

(7) – Proportions which multiple appropriate persons pay to be determined by authority in accordance with guidance of S of S.

(9) – If substance causes another substance through chemical reaction or biological process then D still appropriate person.

• 78G – Granting of, and compensation for the grant of, rights of way onto land which is to be remediated, in favour of the appropriate individual.

• 78H – Restrictions on serving remediation orders.

• 78K – Liability in respect of substances leaking onto other land.

• 78L – Appeals against remediation notices.

• 78M – Offences for not complying with remediation notices.

• 78P(1) – LA entitled to recover reasonable cost of remediation from the appropriate person, if there are 2 or more persons then divide in proportions under 78F(7).

(2) – In deciding whether to recover costs LA shall have regard to hardship the recovery may cause and guidance of S of S.

Guidance.

• Para 1.3 – 2A provides means of dealing with unacceptable risks posed by land contamination to human health and the enviro. Starting point is that land isn’t contaminated unless reason to think otherwise. Only considered to meet definition off contaminated if unacceptable risks are clearly identified after a risk assessment has been undertaken.

• Para 1.4 – objectives of regime: (a) identify and remove unacceptable risks to health and enviro, (b) ensure contaminated land is made suitable for current use, (c) ensure burdens on individuals, companies and society are proportionate, manageable and compatible with sustainable development.

• Para 1.5 – To be used only where no appropriate alternative solution exists – just one of many ways to address problem. PP, building control process, independent action of landowners all other options.

• Para 3.1 – we take risk based approach to defining contaminated land. ‘risk’ means combination of (a) likelihood that harm will arise, and (b) scale of that harm.

• Para 3.2 – all soils contain contaminants, must focus on those that pose unacceptable risk.

• Para 3.3 – LA should regard guidance on risk assessments so as to make robust decisions in line with Part 2A guidance.

• Para 3.4 – Risk assessments to be based on info which is: (a) scientifically-based, (b) authoritative, (c) relevant to the assessment of risks arising from the presence of contaminants in the soil, and (d) appropriate to inform regulatory decisions.

• Para 3.8 – For relevant risk to exist there must be one or more contaminant-pathway-receptor-linkage; contaminant linkage. There must be a contaminant in a quantity that poses a hazard and a pathway for it to reach and harm people/environment. A contaminant is a substance with potential to cause significant harm to a receptor, a receptor is something that could be adversely affected by a contaminant, a pathway is a route by which it is affected.

• Para 3.9 – contaminant linkage is the relationship between the contaminant, a pathway and a receptor. This must be significant which denotes that the level of risk is significant enough.

• Para 3.12 – Risk assessment involved understanding the risks presented by land and the uncertainties. Usually start with desk-based study followed by site study if needed, followed by generic quantitative risk...

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