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

Purpose

4. The objective of this paper is to promulgate revised guidance and to put the changes to the contaminated land regime into context. In addition to the detailed amendments to the statutory guidance consequent upon the 2005 Regulations, we have taken the opportunity to update earlier text which, with the passage of time since Circular SERAD 1/2000 was first issued, is now out of date; these are mainly statutory references. This paper also reiterates earlier guidance on the operation of the contaminated land regime and the regulatory role of local authorities and SEPA contained in Circular 1/2000. It also provides a short summary of Scottish Executive policy in this field, a description of the contaminated land regime, a guide to the 2000 Regulations and a note on the 2005 Regulations.

5. The purpose of the changes introduced by the 2005 Regulations is, primarily:

• to prevent disproportionate regulation being applied to contaminated land causing only trivial amounts of pollution to the water environment; and
• to align the contaminated land regime and the relevant provisions of the Water Environment and Water Services Act 2003 (the 2003 Act).

6. Prior to the amendments introduced by the 2005 Regulations, section 78A(2) of the 1990 Act defined contaminated land 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 significant possibility of such harm being caused; or

(b) pollution of controlled waters is being, or is likely to be, caused.

7. This definition had the effect that while actual or possible harm required to be significant, any degree of pollution or likely pollution of controlled waters could have resulted in the polluting land being designated as contaminated land. To remedy this anomaly, regulation 2(3)(a) of the 2005 Regulations amends the definition of "contaminated land" in section 78A(2) of the 1990 Act. The effect of the amendment is to ensure that the contaminated land regime will apply to land, as regards water pollution, only where significant pollution of the water environment is being caused or is likely to be caused.

8. The 2005 Regulations also amend terminology used in the contaminated land regime to bring it into line with the provisions of the 2003 Act. For example regulation 2(3)(l) of the 2005 Regulations amends section 78A(9) of the 1990 Act by replacing the definition of "controlled waters" in Part IIA of that Act with a definition of the "water environment" (section 3 of the 2003 Act). This seeks to ensure consistency of approach in the operation of the pollution control regimes provided for under Part IIA of the 1990 Act and the 2003 Act regarding contaminated land as a source of pollution of the water environment.

9. Similarly, regulation 2(3)(l) of the 2005 Regulations amends section 78A(9) of the 1990 Act by introducing a definition of "pollution" in relation to the water environment with reference to the definition of pollution provided at section 20(6) of the 2003 Act. This replaces the previous definition of "pollution of controlled waters" in section 78A(9) of the 1990 Act (based on the pollution offence in section 30A of the Control of Pollution Act 1974).

10. Further information on the provisions of the 2005 Regulations is contained in Annex 5.

11. This paper and the attached statutory guidance at Annex 3 applies only to Scotland. Responsibility for implementing Part IIA of the Environmental Protection Act 1990 in England and Wales rests with the Department of Environment, Food and Rural Affairs and the National Assembly for Wales, respectively.