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

ANNEX 5: The Contaminated Land (Scotland) Regulations 2005

1. This Annex provides additional material to help with the understanding of the Contaminated Land (Scotland) Regulations 2005 ( SI 2005/658), which are referred to as "the 2005 Regulations".

2. The purpose of the 2005 Regulations is to amend Part IIA of the Environmental Protection Act 1990("the 1990 Act"), which was inserted by section 57 of the Environment Act 1995. It also makes amendments to the Contaminated Land (Scotland) Regulations 2000 ("the 2000 Regulations").

3. Part IIA of the 1990 Act established a contaminated land regime, under which local authorities have a duty to identify and secure the remediation of "contaminated land" in their area. Section 78A(2) made provision to define "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 a significant possibility of such harm being caused; or (b) pollution of controlled waters is being, or is likely to be, caused". This meant that while actual or possible harm must be "significant", any degree of pollution or likely pollution of controlled waters might result in the polluting land being designated as contaminated. This could lead to the situation where trivial amounts of pollution would result in land being designated as contaminated, and subject to the requirements of Part IIA.

4. The 2000 Regulations make provision in relation to the circumstances in which contaminated land requires to be designated as a special site, and provides for a remediation regime, regulated by SEPA, in that regard.

5. The 2005 Regulations, which are mainly operational or technical in nature, are designed to achieve the following objectives:-

• To remedy the anomaly described above as regards trivial amounts of pollution resulting in land being designated as contaminated under Part IIA of the 1990 Act, and to prevent disproportionate environmental regulation being applied to such land, the definition of "contaminated land" in section 78A(2) of the 1990 Act is amended (regulation 2(3)(a)).
• The Water Environment and Water Services (Scotland) Act 2003 ("the 2003 Act") makes provision to implement the provisions of European Parliament and Council Directive 2000/60/EC, which establishes a framework for Community action in the field of water policy ("the Water Framework Directive"). Section 3 of the 2003 Act provides for a definition of "water environment" which is to replace the term "controlled waters" currently provided for at section 78A(9) of the 1990 Act (by reference to section 30A of the Control of Pollution Act 1974). Regulation 2(3)(l) amends section 78A(9) of the 1990 Act to replace the definition of "controlled waters" with a definition of the "water environment". The effect of the amendment is to accommodate this change in terminology, and 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, which concern contaminated land as a source of pollution of the water environment.
• The 1990 Act made provision for a definition of "pollution of controlled waters" based on the pollution offence in section 30A of the Control of Pollution Act 1974. This terminology is inconsistent with the pollution control regime in the 2003 Act and this could conceivably create operational difficulties for SEPA and local authorities. To address this, regulation 2(3)(l) 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.
• Scottish Ministers already have powers under section 78A(5) of the 1990 Act to issue guidance on the matter of "harm" to human health or the wider environment. Regulations 2(3)(d) and (e) amend sections 78A(5) and (6), respectively, of the 1990 Act to make provision for powers to issue such guidance as may be required on the criteria to be used in determining what pollution of the water environment is to be regarded as "significant" and on whether there is "a significant possibility of such pollution being caused".

6. In addition, the 2005 Regulations make two technical refinements to the 1990 Act required as a consequence of the amendments to the contaminated land regime, as described above:

• amendment of section 78YB of the 1990 Act to clarify that a remediation notice should not be served by a local authority under Part IIA, if and to the extent that SEPA exercise powers under the Water Environment (Controlled Activities) (Scotland) Regulations 2005. This has the effect of removing land which may be the subject of enforcement action under those Regulations from the contaminated land regime provided for under Part IIA to avoid duplication of regulation; and
• amendment of section 79(1B) of the 1990 Act, on statutory nuisance, to reflect the changes proposed to Part IIA with particular regard to the definition of land in a "contaminated state".

7. The 2005 Regulations also make a considerable number of textual amendments to Part IIA of the 1990 Act and the 2000 Regulations, mainly consequential upon the substantive changes notified above.