The Department for Environment, Food and Rural Affairs has launched a consultation on proposed changes to the statutory guidance on the Contaminated Land Regime under Part 2A of the Environmental Protection Act 1990 (the Guidance).  The proposed changes are not sweeping but they will tidy up. Among the reasons for the consultation is cited the need to simplify the guidance, to make it more accessible and understandable, and therefore easier to apply effectively.

The consultation applies to the Guidance applying in England and Wales. The environment is a devolved matter and Scotland has its own Guidance. Although no current consultation is under way in Scotland, the Scottish Guidance is broadly the same as that in England and Wales and it is highly likely that a similar exercise will take place in Scotland in due course.

We will release a more detailed e-update when the Scottish consultation is published, but for the moment, the following are the headline proposals for England and Wales.

The Guidance will be made shorter and simpler, giving it greater transparency and accessibility.

Local authorities will still have to take a strategic approach to inspection and will have to have a written strategy, but they will be left largely to their own devices as to what the strategy will be and how much detail it goes into.

Changes are proposed to the section on risk assessment and the identification of pollutant linkages, to clear up the current uncertainties faced by local authorities, to give them more confidence in the application of the Guidance.

Various changes are proposed to the sections of the Guidance dealing with the ever-problematic assessment of "significant harm", "significant possibility of significant harm" and "significant pollution of controlled waters". Broadly, these changes aim to remedy the current lack of clarity which has caused considerable legal and practical uncertainty. They are intended to secure a greater consistency in approach to, and application of, the Guidance across all local authorities.

New provisions are proposed:

  • to help local authorities determine when land is not contaminated, i.e. that it can be dismissed from further investigation and freed from any negative implications that might have a blighting effect;
  • to clarify that local authorities should reconsider determinations in the light of new information and that determinations should be amended or revoked where appropriate; and
  • to suggest that local authorities should consider informing affected persons before determining that land is contaminated, giving them a chance to comment.

The current Guidance is silent on each of these issues.

Finally, changes will be made to the section on Remediation, including clarification of the factors to be taken into account when deciding what the enforcing authority can "reasonably" require by way of remediation.

Commentary

We are sure that this review will be welcomed by local authorities, upon whom rests the considerable administrative burden of the Contaminated Land Regime. Similar changes will also be welcomed in Scotland, and hopefully the overall result will be a more effective regime for the proportionate management of contaminated land in the UK.

The consultation paper and draft Guidance can be found HERE. The consultation closes on 15 March 2011.

Disclaimer

The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.

© MacRoberts 2010