Contaminated land guidance - Consultation draft imminent?

We understand that the long promised draft contaminated land guidance for the pending contaminated land regime (Part IIA of the Environmental Protection Act 1990) is to be issued this week, possibly even on today, Monday.

When issued we understand that it will be available on the Department of Environment Transport and the Regions ("DETR") web site at www.detr.gov.uk under the heading "Consultation Papers".

If this draft guidance is issued for consultation this week (previously promised publication dates have already passed without publication) then it is possible that the Government will be in a position to lay the draft guidance before Parliament in the New Year. This depends on a short consultation period possibly ending in middle to late November. To become law and, therefore, bring the pending contaminated land regime into force it must be laid before Parliament for a period of 40 days and provided neither house resolves within the 40 days that the guidance should not be issued then it shall come into force at the end of that period. This means the contaminated land regime could be in force by March or April 2000.

The Environment Law Group at CMS Cameron McKenna has produced a short background briefing paper on the pending contaminated land regime. To request a copy please e-mail your request to [email protected]. Please provide your e-mail and postal address as well as your name, company and job title. A copy of the briefing paper will be e-mailed to you. If you have any specific enquiries regarding this LawNow update please contact Anthony Hobley or Daniel Chappell on 0171 367 3000.

Brief Background Notes

For those not familiar with the pending contaminated land regime we set out below in brief some of the major points. It was enacted by Section 57 of the Environment Act 1995 and has been inserted as a new Part IIA into the Environmental Protection Act 1990.

The pending regime provides, for the first time in English law, a statutory definition of contaminated land adopting a risk based approach using the concept of a pollution linkage. A pollution linkage consists of a source, pathway and target (receptor). The definition sets a relatively high threshold of actual or threatened significant harm or pollution of controlled waters before land can be considered as statutory contaminated land.

The enforcing authorities will in most cases be the local authorities except for difficult or complicated contaminated land (to be known as special sites) which will fall under the jurisdiction of the Environment Agency. The local authorities would be under a duty to inspect their areas to identify both contaminated land and the appropriate persons responsible for it (see below). After a three month consultation period in the absence of a voluntary remediation agreement the local authority will be under a duty to serve a remediation notice on the appropriate person(s). The remediation notice will specify certain remediation works to be undertaken. Non compliance with a remediation notice would be a criminal offence.

The appropriate persons would in the first instance be those persons who have caused or knowingly permitted those substances to be in, on or under land by reason of which it has been identified as statutory contaminated land. If such persons cannot be found after reasonable enquiry then the owner or occupier for the time being would be the appropriate person or persons. The pending regime provides complicated provisions for apportionment of liability where there is more than one appropriate person and there are hardship provisions applicable in certain limited circumstances.

Much of the detail relating to the pending regime and particularly where the local authority or Environment Agency are required to exercise discretion will be set out in the statutory guidance. In particular, the statutory guidance will provide detailed guidance on amongst others the following issues: the scope of local investigation; a local authority should undertake; what constitutes significant harm and therefore falls within the definition of statutory contaminated land; what should be required by way of remediation; who is an appropriate person; and how should liability be apportioned between appropriate persons.

It is possible that when land is bought or sold liability for statutory contamination within the regime can be transferred or retained by the adoption certain acknowledgements or other contractual mechanisms as a result of a number of exclusion tests which are likely to be provided for in the statutory guidance.

The Environment Law Group at CMS Cameron McKenna provides a background briefing paper on the pending Contaminated Land Regime. If you would like a copy of this please e-mail your request to [email protected]. A copy of the slightly more background briefing paper will be e-mailed to you. If you have any specific enquiries or issues in relation to the new regime please Anthony Hobley or Daniel Chappell on 0171 367 3000.