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

PART 3: The Local Authority's Inspection Duty

Strategic Approach to Inspection

B.9 In carrying out its inspection duty under section 78B(1), the local authority should take a strategic approach to the identification of land which merits detailed individual inspection. This approach should:

(a) be rational, ordered and efficient;

(b) be proportionate to the seriousness of any actual or potential risk;

(c) seek to ensure that the most pressing and serious problems are located first;

(d) ensure that resources are prioritised on investigating areas where the authority is most likely to identify contaminated land; and

(e) ensure that the local authority efficiently identifies requirements for the detailed inspection of particular areas of land.

B.10 In developing this strategic approach the local authority should reflect local circumstances. In particular it should consider:

(a) any available evidence that significant harm or significant pollution of the water environment is actually being caused;

(b) the extent to which any receptor (which is either of a type listed in Table A in Chapter A or is a water environment) is likely to be found in any of the different parts of the authority's area;

(c) the extent to which any of those receptors is likely to be exposed to a contaminant (as defined in Chapter A), for example as a result of the use of the land or of the geological and hydrogeological features of the area;

(d) the extent to which information on land contamination is already available;

(e) the history, scale and nature of industrial or other activities which may have contaminated the land in different parts of its area;

(f) the nature and timing of past redevelopment in different parts of its area;

(g) the extent to which remedial action has already been taken by the authority or others to deal with land-contamination problems or is likely to be taken as part of an impending redevelopment; and

(h) the extent to which other regulatory authorities are likely to be considering the possibility of harm being caused to particular receptors or the likelihood of any pollution of the water environment being caused in particular parts of the local authority's area.

B.11 In developing its strategic approach, the local authority should consult SEPA and other appropriate public authorities, such as statutory enterprise bodies, Scottish Natural Heritage, Historic Scotland and the Scottish Executive.

B.12 All local authorities have set out this approach in a formally adopted and published written strategy document. Each local authority should keep its strategy under periodic review.

Contents of the Strategy

B.15 Strategies are likely to vary both between local authorities and between different parts of an authority's area, reflecting the different problems associated with land contamination in different areas. The local authority should include in its strategy:

(a) a description of the particular characteristics of its area and how that influences its approach;

(b) the authority's particular aims, objectives and priorities;

(c) appropriate timescales for the inspection of different parts of its area; and

(d) arrangements and procedures for:

(i) considering land for which it may itself have responsibilities by virtue of its current or former ownership or occupation;

(ii) obtaining and evaluating information on actual harm, or pollution of the water environment;

(iii) identifying receptors, and assessing the possibility or likelihood that they are being, or could be, exposed to or affected by a contaminant;

(iv) obtaining and evaluating existing information on the possible presence of contaminants and their effects;

(v) liaison with, and responding to information from, other statutory bodies, including, in particular, SEPA, Scottish Natural Heritage and the Scottish Executive (see paragraphs B.16 and B.17 below);

(vi) liaison with, and responding to information from, the owners or occupiers of land, and other relevant interested parties;

(vii) responding to information or complaints from members of the public, businesses and voluntary organisations;

(viii) planning and reviewing a programme for inspecting particular areas of land;

(ix) carrying out the detailed inspection of particular areas of land;

(x) reviewing and updating assumptions and information previously used to assess the need for detailed inspection of different areas, and managing new information; and

(xi) managing information obtained and held in the course of carrying out its inspection duties.

Information from Other Statutory Bodies

B.16 Other regulatory authorities may be able to provide information relevant to the identification of land as contaminated land, as a result of their various complementary functions. The local authority should seek to make specific arrangements with such other bodies to avoid unnecessary duplication in investigation.

B.17 For example, SEPA has general responsibilities for the protection of the water environment. It monitors the quality of the water environment and in doing so may discover land which would appropriately be identified as contaminated land by reason of significant pollution of the water environment being caused or where there is a significant possibility of such pollution being caused..

Inspecting Particular Areas of Land

B.18 Applying the strategy will result in the identification of particular areas of land where it is possible that a pollutant linkage exists. Subject to the guidance in paragraphs B.22 to B.25 and B.27 to B.30 below, the local authority should carry out a detailed inspection of any such area to obtain sufficient information for the authority:

(a) to determine, in accordance with the guidance on the manner of determination in Part 4 below, whether that land appears to be contaminated land; and

(b) to decide whether any such land falls within the definition of a special site prescribed in regulations 2 and 3 of the Contaminated Land (Scotland) Regulations 2000, and is therefore required to be designated as a special site.

B.19 To be sufficient for the first of these purposes the information should include, in particular, evidence of the actual presence of one or more contaminants and receptors.

B.20 Detailed inspection may include any or all of the following:

(a) the collation and assessment of documentary information, or other information from other bodies;

(b) a visit to the particular area for the purposes of visual inspection and, in some cases, limited sampling (for example of surface deposits); or

(c) intrusive investigation of the land (for example by exploratory excavations).

B.21 Section 108 of the Environment Act 1995 gives the local authority the power to authorise a person to exercise specific powers of entry. For the purposes of this Chapter, any detailed inspection of land carried out through use of this power by the local authority is referred to as an "inspection using statutory powers of entry"

B.22 Before the local authority carries out an inspection using statutory powers of entry, it should be satisfied, on the basis of any information already obtained:-

(a) in all cases, that there is a reasonable possibility that a pollutant linkage (as defined in Chapter A) exists on the land (this implies that not only must the authority be satisfied that there is a reasonable possibility of the presence of a contaminant, a receptor and a pathway, but also that these would together create a pollutant linkage); and

(b) further, in cases involving an intrusive investigation:

(i) that it is likely that the contaminant is actually present; and

(ii) given the current use of the land as defined at paragraph A26, that the receptor is actually present or is likely to be present.

B.23 The local authority should not carry out any inspection using statutory powers of entry which takes the form of intrusive investigation if:

(a) it has already been provided with detailed information on the condition of the land, whether by SEPA or some other person such as the owner of the land, which provides an appropriate basis upon which the local authority can determine whether the land is contaminated land in accordance with the requirements of the guidance in this Chapter; or

(b) a person offers to provide such information within a reasonable and specified time, and then provides such information within that time.

B.24 The local authority should carry out any intrusive investigation in accordance with appropriate technical procedures for such investigations. It should also ensure that it takes all reasonable precautions to avoid harm, or pollution of the water environment or damage to natural resources or features of historical or archaeological interest which might be caused as a result of its investigation. Before carrying out any intrusive investigation on any area notified as an area of special scientific interest ( SSSI), the local authority should consult Scottish Natural Heritage on any action which, if carried out by the owner or occupier, would require the consent of Scottish Natural Heritage under section 28 of the Wildlife and Countryside Act 1981.

B.25 If at any stage, the local authority considers, on the basis of information obtained from a detailed inspection, that there is no longer a reasonable possibility that a particular pollutant linkage exists on the land, the authority should not carry out any further detailed inspection for that pollutant linkage.

Land which may be a Special Site

B.26 If land has been determined to be contaminated land and it also falls within one or more of the "special sites" descriptions prescribed in the 2000 it is required to be designated as a special site. SEPA then becomes the enforcing authority for that land. It is therefore helpful for SEPA to have an informal role at the inspection stage for any such land.

B.27 Before authorising or carrying out on any land an inspection using statutory powers of entry, the local authority should consider whether, if that land were found to be contaminated land, it would meet any of the descriptions of land prescribed in the Regulations as requiring to be designated a special site. This might occur, for example, where the prescribed description of land in the Regulations relates to its current or former use, such as land on which a process designated for central control under the Integrated Pollution Control regime has been carried out or land which is occupied by the Ministry of Defence.

B.28 If the local authority already has information that this would be the case, the authority should seek advice from SEPA preferably before proceeding with the inspection.

B.29 If the local authority considers that there is a reasonable possibility that a particular pollutant linkage is present, and the presence of a linkage of that kind would require the designation of the land as a special site (were that linkage found to be a significant pollutant linkage), the authority should seek advice from SEPA. An example of this kind of pollutant linkage would be pollution of the water environment in the circumstances described in regulation 3(b) of the Contaminated Land (Scotland) Regulations 2000.

B.30 In some limited circumstances SEPA may agree after discussion with the local authority, that it is appropriate for SEPA to carry out the inspection on behalf of the local authority. In such cases the local authority would remain responsible for any costs incurred by SEPA. Where SEPA is to carry out an inspection on behalf of the local authority, the authority should authorise such persons as necessary to exercise the powers of entry conferred by section 108 of the Environment Act 1995. Before the local authority gives such an authorisation, it should ensure that the conditions for the use of the statutory powers of entry set out in paragraphs B.22 to B.25 above are met.