On 6 April 2012 changes to the contaminated land regime entered into force in England. The issue of the revised statutory guidance, which is so critical to the operation of Part 2A, (see our previous lawnow) on the subject) is the main change but the opportunity has also been taken to address some other issues in the legislation applicable to contaminated land with a view to making the Part 2A regime more effective. These include bringing into force a change to the water limb of the definition of contaminated land provided for in the Water Act 2002 along with some changes to contaminated land regulations dealing with procedural matters. Separate statutory guidance for radioactive contaminated land has also been published.
All organisations dealing with contaminated land need to be aware of these changes. Whilst the fundamental principles underlying Part 2A are unchanged, the intention of these changes to the regulations and statutory guidance is to add clarity to the operation of the regime so that efforts can be focused towards sites most in need of remediation and more land can be cleaned up more quickly.
To view our previous lawnow on this subject click here.
Pollution of controlled waters
The definition of contaminated land due to pollution of controlled waters did not include the word "significant". It was quickly recognised that this could result in a situation where any pollution of controlled waters could result in a site meeting the definition. The Water Act 2003 corrected this by amending the definition of contaminated land to refer to significant pollution of controlled waters and significant possibility of significant pollution of controlled waters (our emphasis) but this change has not been brought into effect until now. Whilst in practice regulators have recognised the issue with the definition when making decisions under Part 2A, it is helpful to have the legislative position regularised. The Water Act 2003 (Commencement No. 11) Order 2012 brought section 86 of the Water Act 2003 into force from 6 April 2012 in England and a separate order was passed in Wales on the same date. Regulators will need to show that there is significant water pollution, or a significant risk of significant water pollution, before land can be designated as contaminated under the Part 2A regime. This brings the position into line with Scotland.
Revised statutory guidance
The revised statutory guidance builds on experience with Part 2A to date and is intended to give greater clarity to regulators, particularly on the issue of when land is or is not contaminated land for the purposes of Part 2A. In particular, the guidance is intended to assist local authorities with determining land as contaminated land on the basis of the significant possibility of significant harm to the environment or human health, dividing land into 4 categories based on level of risk.
The revised statutory guidance for England was laid before Parliament on 7 February 2012 and is also effective as of 6 April 2012. (A copy of the guidance is accessible here. This guidance is legally binding on enforcing authorities in its entirety and is intended to explain how local authorities should implement the regime and to explain parts of the Part 2A liability arrangements. Described in the Forward as "new and improved", the revised guidance replaces the previous statutory guidance published as Annex 3 of Defra Circular 01/2006. The non-statutory guidance that was also contained in the Circular is stated to be obsolete. This guidance does not apply to radioactive contaminated land. A revised draft of the guidance for Wales was also laid before the National Assembly for Wales on 7 February 2012.
Radioactive contaminated land
Radioactive contaminated land is covered by separate statutory guidance which was laid before Parliament on 28th February 2012 and also came into force on the 6 April 2012. In the event that land is affected by both radioactive and non-radioactive contaminants both sets of statutory guidance will apply. A copy of the guidance is accessible here.
Changes to contaminated land regulations
The Contaminated Land (England) (Amendment) Regulations 2012 and the Contaminated Land (Wales) (Amendment) Regulations 2012 make minor amendments to the existing contaminated land regulations and both entered into force on the 6 April 2012. Of particular relevance is an amendment to Regulation 11 designed to speed up the appeals process for remediation notices. The amendment to Regulation 11 means that an affected person who is served with a remediation notice may appeal to the Secretary of State against the remediation notice but where the Secretary of State plans to modify the notice in a way that is less favourable to the appellant, in appeals commenced after 6 April 2012 there will no longer be the right to make further representations. This is intended to avoid lengthy and costly public inquiries and an appellant aggrieved by the modification of a notice on appeal will need to consider an application for judicial review.
Since the introduction of the contaminated land regime in 2000, this is the first time the regime has been given a "make-over". The benefit of experience with Part 2A, in particular the concerns of local authorities about determination of land as contaminated on the basis of the significant possibility of significant harm to the environment or human health, have been taken into account in the revised statutory guidance. Will the "make-over" deliver the desired objectives and will it lead to an increase in contaminated land determinations? Part 2A functions alongside the regulations implementing the Environmental Liability Directive 2004/35/EC, namely, the the Environmental Damage (Prevention and Remediation) Regulations 2009 in England, the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 and the Environmental Liability (Scotland) Regulations 2009 which may be more appropriate in some circumstances to address contamination. However, in the case of historic contamination, Part 2A will no doubt continue to play an important role in management of the issue and remains an important factor needing to be addressed in the management of legacy liabilities as well as current transactions and redevelopment.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
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The original publication date for this article was 11/05/2012.