UK: Cleaning Up Property: What Does This Involve?

Last Updated: 28 February 2002

With active implementation of the contaminated land regime and pending obligations regarding the removal or making safe of asbestos, what can property owners expect to have to do in terms of fulfilling their duties in relation to environmental and health and safety matters?

The Continuing Impact of the Contaminated Land Regime

The contaminated land regime was brought into effect in England on 1 April 2000. It came into effect in Scotland on 14 July 2000 and in Wales on 15 September 2001. It applies to any kind of land, whether residential, commercial, industrial or agricultural. It can affect owners, occupiers, developers and lenders. The legislation which is contained in Part IIA Environmental Protection Act 1990 and in regulations and statutory guidance is retrospective: existing and future contamination is covered. It is a very complex area of law and one which cannot be ignored.

The regime requires local authorities to inspect their areas for contaminated land and serve remediation notices on all ‘appropriate persons’. Although a key concept is that the ‘polluter pays’, it is important to realise that current owners and occupiers of the contaminated land can in certain circumstances be ‘appropriate persons’ even if they have not caused or knowingly permitted such contamination.

For land to be regarded as ‘contaminated’ a ‘pollutant linkage’ must be identified i.e. a pollutant, a pathway through which it can travel and a target which can be affected through contamination (a ‘receptor’). Weighting factors may be used to reflect the relative importance of receptors and human beings are likely to be given priority.

Close to 95% of local authorities in England have completed their inspection strategies although many have yet to set clear timetables or methodologies for gathering data on former industrial sites and prioritising them for inspection. Indeed only 31 sites have been officially "determined" by local authorities as contaminated land. This slow start is partly attributable to the fact that many local councils do not have the necessary expertise or resources to move from strategy development to inspection of their areas

Under the new regime, regular inspections of a local authority’s area must be carried out. A risk assessment procedure must then be followed to decide whether a site is contaminated within the statutory definition. If a site is contaminated, the local authority must notify the Environment Agency, owner, occupier and any other ‘appropriate person’ and a three-month consultation period follows. If after this time no voluntary action has been agreed, the authority has a duty to serve a notice requiring a clean up of the land. If the remediation notice is not complied with, a criminal offence may be committed.

To assist in the implementation of Part IIA, a Local Authority Guide to the Application of Part IIA has been prepared on behalf of the Local Government Association. This very helpful guide will be used as the main reference source for local authorities. It addresses issues such as the inspection, identification and notification of sites as well as apportionment of liability, remediation requirements and enforcement. The guide is available on the Internet at http://www.lga.gov.uk/.

New Planning Technical Advice - Development on Land Affected by Contamination - Consultation Draft

The long awaited draft Planning Technical Advice in respect of development on land affected by contamination was put out for consultation on 25th February 2002. This advice revises and updates the existing guidance on contaminated land contained in Planning Policy Guidance Note (PPG) 23 Planning and Pollution Control (1994) to take into account and complement the contaminated land regime in Part IIA of the Environmental Protection Act 1990 which was introduced on 1 April 2000. Part IIA deals with existing land use rather than future use. The draft assumes that remediation of contaminated land (even where identified under Part IIA) will be effected largely through redevelopment and thus through the planning system. The draft Advice aims to develop existing guidance to look at land contamination issues at all stages of the planning process. It applies the broad approach, concepts and principles of the Part IIA regime to the plan-making and development control system and provides advice on:

  • factors to be considered by developers and their advisers when proposing development on land which may be affected by contamination;
  • appropriate policies to be included in development plans and factors to be taken into account when considering applications for development on such land; and
  • the standard for remediation of contaminated sites under development to ensure that unacceptable risk is removed and that the site is made suitable for its new use, by the protection of all relevant receptors, including humans, surface and groundwater, flora and fauna and buildings, and by setting out requirements for maintenance and after-use.
The status of the final Technical Advice is unclear as the Government has proposed that planning guidance would be reduced in the future. It may be that core advice will be retained in a reduced PPG23 with the new advisory text as a supporting "daughter document" but views are sought on this and other matters. The consultation paper is on the DTLR’s web site at www.planning.dtlr.gov.uk/conindex.htm.


The Duty to Manage Asbestos

So long as asbestos is in good condition and remains undisturbed, it is often safer to leave it where it is rather than remove it. The real risk occurs when asbestos is disturbed or damaged. The existing law requires employers to ensure that anybody working on their premises is safe from exposure to asbestos; however, few employers appear to be aware of this law or how to comply with it.

New Regulations

To deal with this problem, the Health & Safety Executive (“HSE”) has published the draft Control of Asbestos at Work Regulations 2002. Draft Regulation 4 is key and imposes new obligations on every employer in charge of a work place to ensure achievement of several measures, including the following:

  • an assessment of the workplace for the presence of asbestos;
  • maintenance of a register recording the location and condition of all asbestos present;
  • an exposure risk assessment to identify the people at risk; and
  • a plan to manage the exposure risks, and the implementation of it.
The ‘Employer’ is the main duty holder but he must ensure that the new requirements are complied with by obliging all other parties with duties in relation to the maintenance or repair of the premises to take the necessary measures to enable the employer to meet those requirements. The ‘other parties’ include owners, managing agents and tenants.

Code of Practice

HSE plans to publish approved Codes of Practice which will advise duty holders how to meet the duties imposed by the new Regulations. Indeed, a consultative document was published this month containing proposals for amendments to the existing draft Codes, which emphasises the importance HSE is attaching to providing the correct balance between general guidance and the requirements of the Codes. Guidance has also been published on how surveys should be carried out, and the standards to be used.

Timing

The Regulations are likely to be published in the summer, and the lead-in period for their implementation will be 18 months.

© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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