Contaminated land basics

Part IIA of the Environmental Protection Act 1990 (which was inserted by section 57 of the Environment Act 1995) came into force in England and Scotland in 2000 and Wales in 2001, and introduced a new regulating regime for the identification of contaminated land. In April 2012, the statutory and non-statutory guidance was replaced by the Contaminated Land Regulations 2012 although the underlying primary Part 11A legislation remained fit for purpose and unchanged, apart from an amended definition in relation to pollution of controlled waters which introduced the word 'significant', introduced via the Water Act 2003 (Commencement Order No.11) 2012.

The amended statutory definition of contaminated land is therefore as follows:

'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:

• significant harm is being caused, or there is a significant possibility of such harm being caused; or
• significant pollution of controlled waters is being caused, or there is a significant possibility of such pollution being caused.'

Harm is defined as 'harm to the health of living organisms or other interference with the ecological systems of which they form a part and, in the case of man, includes harm to his property'.

Substance is defined as 'any natural or artificial substance whether in solid or liquid form or in the form of gas or vapour'.

The term pollution of controlled waters is as defined in section 78A(9) of the Act as 'the entry into controlled waters of any poisonous, noxious or polluting matter or any solid waste matter'.

Part IIA of the Environmental Protection Act 1990 uses the concept of a pollutant linkage, in the context of the suitability for current use, whereby there must be a source, a target and a physical pathway connecting them.

The amendment of the legislation in April 2012 was a response to widespread criticism of the original guidance. Under the original guidance, councils commonly had difficulty assessing whether land was sufficiently contaminated in order for action to be taken to enforce clean up. The knock-on effect of this was that redevelopment was often delayed with significant financial implications. The Water Act 2003 amended the definition of contaminated land to refer to the 'significant' pollution of controlled waters in order to address the uncertainty. This brought the legislation into line with Scotland.