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

ANNEX 1: A Statement of Scottish Executive Policy

Sustainable Development

PREVENTING NEW CONTAMINATION

1 Contaminated land is an archetypal example of our failure in the past to move towards sustainable development. We must learn from that failure. The first priority for the Scottish Executive's policy on land contamination is therefore to prevent the creation of new contamination. We have, or are creating, a range of regimes aimed at achieving this. Of these, the most significant are:

(a) Integrated Pollution Control ( IPC) - Part I of the Environmental Protection Act1990 ("the 1990 Act") places a requirement on operators of prescribed industrial processes to operate within the terms of permits issued by SEPA to control harmful environmental discharges;

(b) Pollution Prevention and Control ( PPC) - The Pollution Prevention and Control (Scotland) Regulations 2000 implement the European Union's Integrated Pollution Prevention and Control directive; that includes the specific requirement that permits for industrial plants and installations must include conditions to prevent the pollution of soil as well as the requirement for site restoration on closure; the PPC Regulations, which are being phased in on an industrial sectoral basis between 2001 and 2007, will eventually replace the IPC regime; and

(c) Waste Management Licensing - Part II of the 1990 Act places controls over the handling, treatment and disposal of wastes; in the past, much land contamination has been the result of unregulated, or badly-managed, waste disposal activities.

2 Whilst the prevention of new contamination is of critical importance, the focus of this circular is on dealing with land which has been contaminated in the past.

OUR INHERITED LEGACY OF CONTAMINATED LAND

3 As well as acting to prevent new contamination, we have also to deal with a substantial legacy of land which is already contaminated, for example by past industrial, mining and waste disposal activities. It is not known, in detail, how much land is contaminated. This can be found out only through wide-ranging and detailed site investigation and risk assessment. The answer will be critically dependent on the definition used to establish what land is to be regarded as "contaminated".

4 Various estimates have been made of the extent of the problem. In its report Contaminated Land, published in 1993, the Parliamentary Office of Science and Technology referred to expert estimates of between 50,000 and 100,000 potentially contaminated sites across the UK, with estimates of the extent of land ranging between 100,000 and 200,000 hectares. The report did comment, however, on international experience, which suggests that only a small proportion of potentially contaminated sites posed an immediate threat to human health and the environment. More recently, the Environment Agency has estimated that that there may be some 300,000 hectares of land in the UK affected to some extent by industrial or natural contamination.

5 Land which is contaminated hinders the pursuit of sustainable development by:

(a) impeding social progress, depriving local people of a clean and healthy environment;

(b) threatening wider damage to the environment and to wildlife;

(c) inhibiting the prudent use of our land and soil resources, particularly by obstructing the recycling of previously-developed land and increasing development pressures on greenfield areas; and

(d) placing a high burden on individual companies, home and other landowners, and the economy as a whole, in terms of the cost of remediation.

6 In this context, the Scottish Executive's objectives with respect to contaminated land are:

(a) to identify and remove unacceptable risks to human health and the environment;

(b) to seek to bring damaged land back into beneficial use; and

(c) to seek to ensure that the cost burdens faced by individuals, companies and society as a whole are proportionate, manageable and economically sustainable.

7 These three objectives underlie the "suitable for use" approach to the remediation of contaminated land, which the Scottish Executive considers is the most appropriate approach to achieving sustainable development in this field.

THE "SUITABLE FOR USE" APPROACH

8 The "suitable for use" approach focuses on the risks associated with land contamination. The approach recognises that the risks presented by any given level of contamination will vary greatly according to the use of the land and a wide range of other factors, such as the underlying geology of the site. Risks therefore need to be assessed on a site-by-site basis.

9 The "suitable for use" approach then consists of three elements:

(a) ensuring that land is suitable for its current use - in other words, assessed on the basis of the current use and circumstances of the land, identifying any land where contamination is causing unacceptable risks to human health and the environment, and returning such land to a condition where such risks no longer arise ("remediating" the land); the new contaminated land regime provides general machinery to achieve this;

(b) ensuring that land is made suitable for any new use, as planning permission is given for that new use - in other words, on the basis of the proposed future use and circumstances, assessing the potential risks from contamination, before official permission is given for the development and, where necessary to avoid unacceptable risks to human health and the environment, remediating the land before the new use commences; this is the role of the town and country planning and building control regimes; and

(c) limiting requirements for remediation to the work necessary to prevent unacceptable risks to human health or the environment in relation to the current use or future use of the land for which planning permission is being sought - in other words, recognising that the risks from contaminated land can be satisfactorily assessed only in the context of specific uses of the land (whether current or proposed), and that any attempt to speculate as to the future uses of the land is likely to result either in premature work (thereby risking distorting social, economic and environmental priorities) or in unnecessary work (thereby wasting resources).

10 Within this framework, it is important to recognise both that the use (as defined in the Town and Country Planning (Use Classes) (Scotland) Order 1997) of any particular area of land may cover several different activities and that some potential risks arising from contamination (particularly in relation to water and the wider environment), may arise independently of the use of the land. In practical terms, the current use of any land should be taken to be any use which:

(a) is currently being made of the land, or is likely to be made of it; and

(b) is consistent with any existing planning permission or is otherwise lawful under town and country planning legislation

(This approach is explained in more detail in paragraph A.27 of Annex 3 to this Circular).

11 Regulatory action may be needed to make sure that necessary remediation is carried out. However, limiting remediation costs to what is needed to avoid unacceptable risks will mean that more previously-developed land will be able to be recycled than would otherwise be the case, increasing the ability to make beneficial use of the land. This helps to increase the social, economic and environmental benefits from regeneration projects and to reduce unnecessary development pressures on greenfield sites.

12 The "suitable for use" approach provides the best means of reconciling our various environmental, social and economic needs in relation to contaminated land. Taken together with tough action to prevent new contamination, and wider initiatives to promote the reclamation of previously-developed land, it will also help to bring about progressive improvements in the condition of the land which we pass on to future generations.

13 Within the "suitable for use" approach, it is always open to the person responsible for a site to do more than can be enforced through regulatory action. For example, a site owner may plan to introduce at a future date some new use for the land which would require more stringent remediation, and may conclude that, in these circumstances, it is more economic to anticipate those remediation requirements. However, this is a judgement, which only the person responsible for the site is in a position to make.

14 The one exception to the "suitable for use" approach to regulatory action applies where contamination has resulted from a specific breach of an environmental licence or permit. In such circumstances, the Scottish Ministers considers that it is generally appropriate that the polluter is required, under the relevant regulatory regime, to remove the contamination completely. To do otherwise would be to undermine the regulatory regimes aimed at preventing new contamination.

Action to Deal with Contamination

VOLUNTARY REMEDIATION ACTION

15 The Scottish Executive aims to maintain the quality of the land resource in Scotland and to progressively regenerate land where it has been degraded in the past. Redeveloping areas where previous development has reached the end of its useful life not only contributes to the social and economic regeneration of local communities but also enables this progressive environmental improvement.

16. Scottish Planning Policy and Advice emphasises that full and effective use should be made of previously developed sites within existing built up areas, and that priority should, wherever possible, be given to reusing derelict and vacant land.

17 It is, of course, necessary to ensure that when previously developed land is redeveloped any potential risks associated with contamination are properly identified and remediated. The planning and building control systems, described at paragraphs 45 to 50 below, provide the means of achieving this.

18 There are very few cases where land cannot be restored to some beneficial use. However, the actual or potential existence of contamination on a site can inhibit the willingness or ability of a developer to do so. The Scottish Executive is acting in three specific ways to overcome the potential obstacles to the redevelopment of land affected by contamination:

(a) by providing public subsidy - funding is made available through Scottish Enterprise and the local enterprise network to support site redevelopment costs for projects aimed at particular social and economic regeneration objectives;

(b) by promoting research and development - the programmes of the science research councils, the Scottish Executive, SEPA, the Environment Agency, SNIFFER, DEFRA and the DTI aim to increase scientific understanding and the availability and take-up of improved methods of risk assessment and remediation; and

(c) by providing an appropriate policy and legal framework - the "suitable for use" approach ensures that remediation requirements are reasonable and tailored to the needs of individual sites; a significant objective underlying the contaminated land regime is to improve the clarity and certainty of potential regulatory action on contamination, thereby assisting developers to make informed investment appraisals.

REGULATORY ACTION

19 The regeneration process is already dealing with much of our inherited legacy of contaminated land. However, there will be circumstances where contamination is causing unacceptable risks on land, which is either not suitable or not scheduled for redevelopment. For example, there may be contamination on sites now regarded as greenbelt or rural land, or contamination may be affecting the health of occupants of existing buildings on the land or prejudicing wildlife on the site or in its surroundings. We therefore need systems in place both to identify problem sites of this kind and, more significantly, to ensure that the problems are dealt with and the contamination remediated.

20 A range of specific clean-up powers exists to deal with cases where contamination is the result of offences against, or breaches of, pollution prevention regimes. The main examples of these are described in paragraphs 45 to 52 below.

21 Part IIA of the Environmental Protection Act 1990 creates a framework for the identification and remediation of contaminated land in circumstances where there has not been any identifiable breach of a pollution prevention regime.

22 In July 2000, Part IIA largely replaced existing regulatory powers and duties. Local authorities have long-standing duties to identify particular environmental problems, including those resulting from land contamination, and to require their abatement. The origins of these powers are found in the mid-19th century legislation, which created the concept of the statutory nuisance. They were codified in the Public Health (Scotland) Act 1897 and have most recently been set out in Part III of the Environmental Protection Act 1990, which modernised the statutory nuisance regime.

23 In addition, SEPA has powers under the Water Environment (Controlled Activities) (Scotland) Regulations 2005 to regulate activities which impact on the water environment, including circumstances where the pollution arises from contamination in the land.

The Contaminated Land Regime

OUTLINE OF PART IIA AND ASSOCIATED DOCUMENTS

24 The primary legislation in Part IIA contains the structure and main provisions of the regime. It consists of sections 78A to 78YC. An explanation of how the regime will operate is set out in the Description of the Regime, at Annex 2 to this Circular.

25 Within the structure of the Part IIA legislation, the statutory guidance set out in Annex 3 to this Circular provides the detailed framework for the following key elements of the new regime:

(a) the definition of contaminated land (Chapter A);

(b) the identification of contaminated land (Chapter B);

(c) the remediation of contaminated land (Chapter C);

(d) exclusion from, and apportionment of, liability for remediation (Chapter D); and (e) the recovery of the costs of remediation and the relief from hardship (Chapter E).

26 The Contaminated Land (Scotland) Regulations 2000 made under Part IIA deal with:

(a) the descriptions of land which are required to be designated as "special sites";

(b) the contents of, and arrangements for serving, remediation notices;

(c) compensation to third parties for granting rights of entry etc. to land;

(d) grounds of appeal against a remediation notice, and procedures relating to any such appeal; and

(e) particulars to be contained in registers compiled by enforcing authorities, and the locations at which such registers must be available for public inspection.

27 Annex 4 to this Circular provides a detailed description of the Contaminated Land (Scotland) Regulations 2000.

MAIN FEATURES OF THE REGIME

28 The primary regulatory role under Part IIA rests with Scottish local authorities.

29 This reflects their existing functions under the statutory nuisance regime, and will also complement their roles as planning authorities. In outline, the role of these authorities under Part IIA will be:

(a) to cause their areas to be inspected to identify contaminated land;

(b) to determine whether any particular site is contaminated land;

(c) to act as enforcing authority for all contaminated land which is not designated as a "special site" ( SEPA will be the enforcing authority for special sites).

30 The enforcing authorities will have four main tasks:

(a) to establish who should bear responsibility for the remediation of the land (the "appropriate person" or persons);

(b) to decide, after consultation, what remediation is required in any individual case and to ensure that such remediation takes place, either through agreement with the appropriate person, or by serving a remediation notice on the appropriate person if agreement is not possible or, in certain circumstances, through carrying out the work themselves;

(c) where a remediation notice is served, or the authority itself carries out the work, to determine who should bear what proportion of the liability for meeting the costs of the work; and

(d) to record certain prescribed information about their regulatory actions on a public register.

31 Contaminated land is land which appears to the local authority to be in such a condition, by reason of substances in, on or under the land, that significant harm is being caused, or there is a significant possibility of such harm being caused, or that significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused.. This definition is to be applied in accordance with other definitions in Part IIA and the statutory guidance set out in this Circular. These definitions and the guidance are based on the assessment of risks to human health and the environment. The regime thus reflects the "suitable for use" approach.

32 Under the provisions concerning liabilities, responsibility for paying for remediation will, where feasible, follow the "polluter pays" principle. In the first instance, any persons who caused or knowingly permitted the contaminating substances to be in, on or under the land will be the appropriate person(s) to undertake the remediation and meet its costs. However, if it is not possible to find any such person, responsibility will pass to the current owner or occupier of the land. (This latter step does not apply where the problem caused by the contamination is solely one of pollution of the water environment: this reflects the potential liabilities for such pollution as they existed prior to the introduction of Part IIA.) Responsibility will also be subject to limitations, for example where hardship might be caused; these limitations are set out in Part IIA and in the statutory guidance in this Circular.

33 SEPA will have four principal roles with respect to contaminated land under Part IIA and the 2000 Regulations:

(a) it will provide advice on request in relation to the identification and designation of special sites;

(b) it may issue site-specific advice to local authorities on contaminated land;

(c) it will act as the "enforcing authority" for any land designated as a "special site" (the descriptions of land which are required to be designated in this way are prescribed in the 2000 Regulations); and

(d) it will publish periodic reports on contaminated land.

34 In addition, SEPA has an interest in the contaminated land research programme now run by the Environment Agency, and previously run by the then Department of the Environment. The Environment Agency will continue to carry out technical research and, in conjunction with DETR, publish scientific and technical advice. SNIFFER will also continue to carry out technical research and publish the findings of such research.

MEASURING PROGRESS

35 The Executive is introducing performance indicators ( PIs) to assess overall progress by local authorities, and SEPA, in carrying out their statutory responsibilities for implementing the contaminated land regime in Scotland. A consultant's report commissioned by the Executive in 2004 proposed a series of 14 PIs which would allow measurement of regulatory activity and outcomes achieved. The PIs were developed in consultation with local authorities and SEPA.

36 The PIs include both (a) measures of the scale of regulatory activities carried out by local authorities and SEPA under Part IIA and the 2000 Regulations; and (b) indicators of overall progress in the task of identifying and remediating contaminated land, whether this is the result of voluntary action, compliance with remediation conditions in planning consents, or a response to regulatory action under Part IIA or the 2000 Regulations.

37 It is recognised that there are sometimes inconsistencies across local authorities in the way that information on contaminated land is collected and recorded. To provide local authorities with an opportunity to rationalise their data handling arrangements, the introduction of PIs is being phased in on an informal basis in the short term with a view to moving to a formal reporting process for the data collected with effect from 2006-07. During the transitional phase the Executive will accept submission of incomplete returns due to lack of available data. The Executive will look to formally introduce new arrangements for resource distribution, including an element related to performance measurement, in the 2007 spending review.

PUBLISHED TECHNICAL ADVICE

38 DEFRA, the Environment Agency, SEPA and other bodies have published a range of technical advice documents relating to contaminated land. A bibliography is on the DEFRA website at http://www.defra.gov.uk/corporate/publications/default.htm. This will be kept up to date as further documents are produced.

Interaction with Other Regimes

PLANNING AND DEVELOPMENT CONTROL

39 Land contamination can be addressed by the planning system in terms of planning policy and planning decisions. Guidance to planning authorities is set out in Planning Advice Note ( PAN) 33 - Development of Contaminated Land (Revised October 2000), and PAN 51 - Planning and Environmental Protection.

40. Planning authorities are responsible for preparing structure and local plans which set out the policy framework for dealing with issues such as the development of contaminated land. Development Plans provide an opportunity for authorities to set out their priorities for the reclamation and reuse of contaminated land and inform developers of the availability of sites, their suitability for development and the potential constraints attached to them.

41 In relation to planning decisions, land contamination may be regarded as a "material consideration" when individual planning applications are considered as part of the statutory development control process. When determining a planning application the planning authority should satisfy itself that the potential for contamination has been properly assessed by the applicant, and the proposed development incorporates any necessary remediation. PAN 33 states that the planning authority must consider (often following expert advice) whether a developer's restoration plan is adequate to avoid unacceptable risks to human health and the wider environment from the contamination on the site, both during the restoration period and for the final end use. If it is not adequate then there are grounds for refusal. Where necessary, any planning permission should include conditions requiring that remediation measures are implemented before commencement of any new use. Under the "suitable for use" approach, risks should be assessed, and remediation requirements set, on the basis of the proposed new use. It is also the responsibility of the planning authority to consider the potential risk of development works, and/or a proposed use, contaminating a site or the surrounding area. (This is in contrast to the approach under Part IIA, where only the current use and circumstances are considered.)

42 In some cases, the carrying out of remediation activities may itself constitute "development" within the meaning given at section 26 of the Town and Country Planning (Scotland) Act 1997, and therefore require planning permission.

43 In addition to the planning system, the Building Standards (Scotland) Regulations 1990 (made under the Building (Scotland) Act 1959 ) may require measures to be taken to protect the fabric of new buildings, and their future occupants, from the effects of contamination. Part G of the Technical Standards for Compliance (Preparation of Sites and Resistance to Moisture) gives guidance on these requirements.

44 In any case where new development is taking place, it will be the responsibility of the developer to ensure the required and necessary remediation is carried out. In many cases, the enforcement of any remediation requirements will be through compliance with planning conditions and building control requirements, rather than through a remediation notice issued under Part IIA.

INTEGRATED POLLUTION CONTROL ( IPC) AND POLLUTION PREVENTION AND CONTROL ( PPC)

45 Section 27 of the Environmental Protection Act 1990 gives SEPA the power to take action to remedy harm caused by a breach of IPC controls under section 23(1)(a) or (c) of the Act. This could apply to cases of land contamination arising from such causes.

46 In any case where an enforcing authority acting under Part IIA considers that the section 27 power is exercisable, it is precluded by section 78YB(1) from serving a remediation notice to remedy the same harm.

47 In some cases, remediation activities may themselves constitute processes which cannot be carried out without a permit issued under the IPC regime.

48 The Pollution Prevention and Control (Scotland) Regulations 2000 ( PPC), which are replacing the current IPC regime, transpose into Scottish law the requirements of the EC Integrated Pollution Prevention and Control Directive (96/61/EC). The PPC Regulations also require the submission of reports characterising the condition of the site, to ensure that the site is left in a satisfactory state upon surrender or revocation of a permit. The PPC regime will have the same relationship to Part IIA as has the IPC regime in that it will prevent further land contamination.

WASTE MANAGEMENT LICENSING

49 There are three areas of potential interaction between the Part IIA regime and the waste management licensing system under Part II of the Environmental Protection Act 1990.

50 Firstly, there may be significant harm or significant pollution of the water environment arising from land for which a site licence is in force under Part II. Where this is the case, under section 78YB(2), the Part IIA regime does not normally apply; that is, the land cannot formally be identified as "contaminated land" and no remediation notice can be served. If action is needed to deal with a pollution problem in such a case, this would normally be enforced through a "condition" attached to the site licence. However, Part IIA does apply if the harm or pollution on a licensed site is attributable to a cause other than a breach of the site licence, or the carrying on of an activity authorised by the licence in accordance with its terms and conditions.

51 Secondly, under section 78YB(3), an enforcing authority acting under Part IIA cannot serve a remediation notice in any case where the contamination results from an illegal deposit of controlled waste. In these circumstances, SEPA has powers under section 59 of the 1990 Act to remove the waste, and to deal with the consequences of its having been present.

52 Thirdly, remediation activities on contaminated land may themselves fall within the definitions of "waste disposal operations" or "waste recovery operations", and be subject to the licensing requirements under the Part II system.

STATUTORY NUISANCE

53 Until the implementation of the Part IIA contaminated land regime, the statutory nuisance system under Part III of the 1990 Act was the main regulatory mechanism for enforcing the remediation of contaminated land.

54 The Scottish Executive has considered that the Part IIA regime, as explained in the statutory guidance, sets out the right level of protection for human health and the environment from the effects of land contamination. It has therefore judged it inappropriate to leave in place the possibility of using another, less precisely defined, system which could lead to the imposition of regulatory requirements on a different basis.

55 From the entry into force of the new contaminated land regime, most land contamination issues are therefore removed from the scope of the Statutory Nuisance regime. This is the effect of an amendment to the definition of a statutory nuisance in section 79 of the 1990 Act, consisting of the insertion of sections 78(1A) and (1B); this amendment was made by paragraph 89 of Schedule 22 to the Environment Act 1995. Any matter which would otherwise have been a statutory nuisance will no longer be treated as such, to the extent that it consists of, or is caused by, land "being in a contaminated state". The definition of land which is "in a contaminated state", and where the statutory nuisance regime is therefore excluded, covers all land where there are substances in, on, or under the land which are causing harm or where there is a possibility of harm being caused.

56 However the statutory nuisance regime will continue to apply for land contamination issues in any case where an abatement notice under section 80(1), or an order of the court under section 82(2)(a), has already been issued and is still in force. This will ensure that any enforcement action taken under the statutory nuisance regime can continue, and will not be interrupted by the implementation of the Part IIA regime.

57 It should also be noted that the statutory nuisance regime will continue to apply to the effects of deposits of substances on land which give rise to such offence to human senses (such as stenches) as to constitute a nuisance, since the exclusion of the statutory nuisance regime applies only to harm (as defined in section 78A(4)) and the pollution of the water environment.

RADIOACTIVITY

58 Under section 78YC of the 1990 Act, the normal Part IIA regime does not apply with respect to harm, or pollution of the water environment, which is attributable to any radioactivity possessed by any substance.

59 However, this section does give powers to the Scottish Ministers to make regulations applying the Part IIA regime, with any necessary modifications, to problems of radioactive contamination. The Scottish Executive published a consultation paper in October 2005 on proposed Radioactive Contaminated Land (Scotland) Regulations in order to extend that Part IIA Regime to include radioactivity. The consultation closed in January 2006.

OTHER REGIMES

60 Other regimes which may have implications for land contamination, or which may overlap with Part IIA, include the following:

(a) Food Safety - The Scotland Act 1998 (Consequential Modifications) Order 2000 ( SI 2000/240) transferred to the Scottish Ministers powers under Part 1 of the Food and Environment Protection Act 1985 to prohibit specified agricultural activities in a designated area in order to protect consumers from exposure to contaminated food. Enforcing authorities under Part IIA of the 1990 Act should liaise with the Food Standards Agency about any possible use of the powers in Part I of the 1985 Act. The Food Standards Agency will advise the Scottish Ministers on the proposed use of these powers.

(b) Health and Safety - The Health and Safety at Work etc Act 1974, the Construction (Design and Management) Regulations 1994 ( SI 1994/3140) and their associated controls are concerned with risks to the public or employees at business and other premises; risks of these kinds could arise as a result of land contamination. Liaison between Part IIA enforcing authorities and the Health and Safety Executive will help to ensure that unnecessary duplication of controls is avoided, and that the most appropriate regime is used to deal with any problems.

(c) Landfill Tax - The Finance Act 1996 introduced a tax on the disposal of wastes, including those arising from the remediation and reclamation of land. However, an exemption from this tax can be obtained where material is being removed from contaminated land in order to prevent harm, or to facilitate the development of the land for particular purposes. An exemption certificate has to be specifically applied for, through HM Revenue and Excise, in each case where it might apply. No exemption certificate will be granted where the material is being removed in order to comply with the requirements of a remediation notice served under section 78E of the 1990 Act. This provides a fiscal incentive for those responsible for carrying out remediation under Part IIA to do so by agreement, rather than waiting for the service of a remediation notice.

(d) Major Accident Hazards - The Control of Major Accident Hazards Regulations 1999 ( SI 1999/743) ( COMAH) require operators of establishments handling prescribed dangerous substances to prepare on-site emergency plans, and the local authorities to prepare off-site emergency plans. The objectives of these emergency plans include providing for the restoration and clean-up of the environment following a major accident. The Health and Safety Executive and SEPA are jointly responsible for overseeing the COMAH Regulations.