Out-Law News 2 min. read
07 Jun 2016, 2:56 pm
In its Soil Health report (49-page / 760 KB PDF), published last week , the House of Commons' Environmental Audit Committee said local authorities were struggling to meet their duty to identify and clean up contaminated land because of a decision by the Department for Environment, Food and Rural Affairs (DEFRA) to phase out grant funding by 2017.
Local authorities have a duty under Part 2A of the Environmental Protection Act 1990 to identify contaminated land and to take steps to ensure that the contamination is remedied. The cost of cleaning up contaminated land is supposed to be met by the person that caused it, or if the responsible party cannot be found, the current owner or occupier of the land. However, the committee heard evidence that the cost of remediation usually falls to councils, because it is often impossible to find the polluter and current owners and occupiers may lack the means to pay.
Witnesses told the committee that in 83% of cases between 2000 and 2013, local authorities had ended up dealing with contaminated land through planning applications. The report said cleaning up land this way was only feasible on high value sites, so "contamination in high-value areas such as London will continue to be remediated through planning, while sites in other cities, such as Middlesbrough, Liverpool and York will not be identified or remediated at all".
According to data presented to the committee, 81% of remediation between 2000 and 2013 had been funded by DEFRA capital grants. The report said DEFRA funding was slashed from £17.5m in 2009/10 to £2m in 2013/14 and £0.5m in 2014. It said a decision to discontinue the grants by 2017 had "undermined councils' ability to meet their statutory duty", with a loss of expert staff and some councils reportedly being told not to investigate land due to the financial burdens of remediating any contamination identified.
Planning expert Jo Miles of Pinsent Masons, the law firm behind Out-Law.com, said: "The phasing out of the DEFRA contaminated land capital grants to local authorities is particularly interesting when viewed in the context of Department for Communities and Local Government’s announcement in March of this year that a new £1.2 billion Starter Homes Land Fund (13-page / 422 KB PDF) would be made available to local authorities outside of London for purposes that include remediating brownfield sites."
"Whereas the previous DEFRA grants could be spent by local authorities on meeting their statutory duties under Part 2A of the Environmental Protection Act 1990 to identify and remove unacceptable risks to human health and the environment, this new fund will only be available to those local authorities who form a partnership with the Homes and Communities Agency and who can demonstrate they will use the funds to de-risk sites in local authority ownership for starter homes development," said Miles.
"The expectation is that starter homes would account for at least 50% of the homes built on sites that have been de-risked using these funds, with the remainder as market housing to help with viability. The clear message from government is that decontamination is a priority, but only where it helps secure the delivery of its flagship housing policy," she said.
"It will also be interesting to see how the issue of funding for decontamination plays out in the context of the proposed new duty on local authorities to compile and maintain a register of brownfield sites in their area. Regulations to be made under the new Housing and Planning Act will provide more detail on when a site is suitable for inclusion in the register, and the result of inclusion will be eligibility for ‘permission in principle’," Miles said.