On 7 February 2012 draft revised statutory guidance, which accompanies the contaminated land regime in England and Wales (Part 2A of the Environmental Protection Act 1990), was laid before Parliament with associated regulations.
The regime (in place for over 10 years), requires local authorities (and in some cases the Environment Agency) to identify and deal with contaminated land which presents significant risks to human health or the environment. Provided Parliament does not decide otherwise, the revised guidance will become effective around 6 April 2012. It will replace the current guidance. Revised regulations, the Contaminated Land (England) (Amendment) Regulations 2012 were also laid before Parliament and (unless Parliament rejects them) will come into force on 6 April 2012.
The new statutory guidance is intended to fine tune rather than re-do the previous approach. In particular, to be more user friendly than the existing guidance, to reduce regulatory uncertainty (and inconsistency) over what constitutes contaminated land to achieve a more proportionate impact, avoid unnecessary remediation and to assist market mechanisms for dealing with remediation.
The new guidance provides further clarification on what is not contaminated land and how to determine when land poses significant risk. It is hoped that this will reduce unnecessary property blight and speed up the determination process. A new four category test is intended to clarify when land does or does not need to be remediated. Guidance on liability and remediation is shortened but substantially unchanged and the reasonableness of remediation will continue to be a key part of discussions in relation to land once it has been determined.
DEFRA's view is that "the policy aims to make the
regime target higher risk land more efficiently". The intent
is that efforts shall be focused on high risk sites and at
accelerating decision-making by helping local authorities dismiss
low risk sites more easily.
In addition a long awaited statutory change to the definition of
contaminated land as it relates to pollution of controlled waters
is to be effected. The threshold for the definition is to become
higher. It will move from mere "pollution of controlled
waters" or such pollution is "likely to be caused"
to "significant pollution of controlled waters" or
"significant possibility of significant pollution of
controlled waters". A commencement order to effect the
change will be issued at the same time that the revised statutory
guidance is formally issued and the new guidance covers the
change.
Revised statutory guidance on radioactive contaminated land is intended to be issued separately.
It is hoped that the new guidance will assist both regulators and the private sector in dealing with the regulation and development of sites in a more proportionate manner which in turn hopefully will have a positive impact on asset value and remediation costs.
Please click here for the draft statutory guidance
laid in Parliament.
Please click here for the regulations
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
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 14/02/2012.
