The UK Contaminated Land Regime ("Regime") was introduced in April 2000. Under the Regime, local authorities have a duty to identify contaminated sites within their area with a view to ensuring that the sites are remediated if necessary. The costs of remediation are generally apportioned on a "polluter pays" principle, although the current landowner or occupier can potentially be liable as the last man standing.

An Environment Agency report published earlier this year confirmed that almost half of local authorities had made little or no progress towards achieving their stated objectives. The report confirmed that 781 sites had been determined by the authorities as contaminated, of which less than 150 had been completely remediated by March 2007.

Many reasons have been put forward for the lack of progress, including the following:

  • the regime is considered too complicated and unwieldy;
  • the local authorities have allocated their limited finances to other areas of regulation;
  • some local authorities lack the technical skills to assess whether land is contaminated;
  • local authorities have been put off by the small number of cases where remediation notices have been appealed due to the lengthy and costly court procedures involved;
  • however perhaps the most important deterrent for local authorities has been the lack of confidence in the soil guideline values ("SGVs") which are intended to assist in the assessment of risk of harm to human health from contaminants in soil - a key factor in deciding whether a site is contaminated for the purposes of the Regime.

Between April and June of this year the Environment Agency is publishing new SGVs for a range of substances including mercury, benzene, toluene, arsenic, cadmium, lead, nickel and xylene. For each substance, different SGVs are set for different land uses including residential, allotments and commmercial/industrial. Where soil concentrations fall below the appropriate SGV the risk may be considered tolerable but where it is exceeded there may be a significant risk to human health and further investigation would generally be required.

The publication of the new SGVs should assist in removing one of the most significant barriers to progress for the Regime. These improvements to technical standards will hopefully be welcomed by not only local authorities but also environmental consultants and the property industry. It is true to say that these parties will need to become comfortable with these standards as a tool for assessing whether land is contaminated, but once they have done so a more clear approach should prevail.

Whilst the Regime has certainly increased attention on contaminated land issues, the vast majority of remediation during the time that it has been in place has been undertaken as part of the development process through planning legislation. To an extent, this, in itself, has masked a lack of action by many local authorities who would clearly prefer that remediation of contaminated sites be undertaken outside of the Regime, where possible.

The current economic climate has, however, led to a significant reduction in development and also means that voluntary remediation schemes have come under financial pressures, placing the onus back on local authorities for some sites which may otherwise have been expected to be remediated outside the Regime. Clearly, it will take a period of time for local authorities to get up to speed with the new SGVs, but increased activity under the Regime over the coming year would not be a surprise.

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