Environmental Protection Act 1990 - Part IIA Contaminated Land: statutory guidance edition 2

2 - The Definition of Contaminated Land

The Definition in Part IIA

2.1 Section 78A(2) defines CONTAMINATED LAND for the purposes of Part IIA as:-

"any land which appears to the LOCAL AUTHORITY in whose area it is situated 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 such harm being caused; or

"(b) SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT is being caused or there is a significant possibility of such pollution being caused".

2.2 This definition reflects the role of the Part IIA regime, which is to enable the identification and remediation of land on which contamination is causing unacceptable risks to human health or the wider environment. It does not necessarily include all land where contamination is present, even though such contamination may be relevant in the context of other regimes. For example, contamination whilst not necessarily causing a significant level of risk in the context of new development of land, may still be deemed a material planning consideration under the Town and Country Planning (Scotland) Act 1997.

2.3 The definition does not cover any HARM or POLLUTION OF THE WATER ENVIRONMENT which is attributable to any radioactivity possessed by any substance ( section 78YC). However, Scottish Ministers have powers to make regulations applying some or all of the Part IIA regime - with modifications where appropriate - to cases of radioactive contamination ( section 78YC(a)). The Scottish Executive published a consultation paper in October 2005 on proposed Radioactive Contaminated Land (Scotland) Regulations in order to extend the Part IIA regime to include radioactivity. The consultation closed in January 2006. Those regulations will deal with the procedure for sites where both radioactive and non-radioactive contamination is present. For the time being, any non-radioactive contamination on such sites may be addressed under the Part IIA regime as described here.

Significant Harm

2.4 The definition of CONTAMINATED LAND includes the notion of "SIGNIFICANT HARM" and the "SIGNIFICANT POSSIBILITY" of such HARM being caused. The LOCAL AUTHORITY is required to act in accordance with statutory guidance issued by The Scottish Ministers in determining what is "significant" in either context ( section 78A(2) & (5)). This statutory guidance is set out at Chapter A of Annex 3 to this circular.

2.5 The statutory guidance uses the concept of a "POLLUTANT LINKAGE" - that is, a linkage between a CONTAMINANT and a RECEPTOR, by means of a PATHWAY. The CONTAMINANT may be described as a POLLUTANT only when a PATHWAY and RECEPTOR are present. The statutory guidance then explains: (a) the types of RECEPTOR to which SIGNIFICANT HARM can be caused (HARM to any other type of RECEPTOR can never be regarded as SIGNIFICANT HARM); (b) the degree or nature of HARM to each of these RECEPTORS which constitutes SIGNIFICANT HARM ( Chapter A, Table A); and

(c) for each RECEPTOR, the degree of possibility of the SIGNIFICANT HARM being caused which will amount to a SIGNIFICANT POSSIBILITY ( Chapter A, Table B, & paragraphs A.28 to A.37).

2.6 Before the LOCAL AUTHORITY can make the judgement that any land appears to be CONTAMINATED LAND on the basis that SIGNIFICANT HARM is being caused, or that there is a SIGNIFICANT POSSIBILITY of such harm being caused, the authority must therefore identify a SIGNIFICANT POLLUTANT LINKAGE. This means that each of the following has to be identified:

(a) a CONTAMINANT;

(b) a relevant RECEPTOR; and

(c) a PATHWAY by means of which either:

(i) that CONTAMINANT is causing SIGNIFICANT HARM to that RECEPTOR, or

(ii) there is a SIGNIFICANT POSSIBILITY of such harm being caused by that CONTAMINANT to that RECEPTOR ( paragraphs A.12 and A.20).

Pollution of The Water Environment

2.7 The LOCAL AUTHORITY is also required to act in accordance with statutory guidance issued by THE SCOTTISH MINISTERS in determining whether significant POLLUTION OF THE WATER ENVIRONMENT is being caused or there is a significant possibility of such pollution being caused ( section 78A(5)). This guidance is also set out at Chapter A of Annex 3 to this circular.

2.8 Before the LOCAL AUTHORITY can make the judgement that any land appears to be CONTAMINATED LAND on the basis that significant POLLUTION OF THE WATER ENVIRONMENT is being caused or there is a significant possibility of such pollution being caused, the authority must identify a SIGNIFICANT POLLUTANT LINKAGE, where THE WATER ENVIRONMENT forms the RECEPTOR ( paragraphs A.12 and A.20).

2.9 Guidance on what constitutes significant POLLUTION OF THE WATER ENVIRONMENT, or the significant possibility of such pollution, is contained in paragraphs A.38 to A.46 of Part 4 to Chapter A to Annex 3 and paragraphs B.50 to B52 of Part 4 of Chapter B to Annex 3. .