Simplifying contaminated land guidance could put public health at risk, industry body warns

The Chartered Institute of Environmental Health (CIEH), which represents the interests of the environmental health profession, said that simplifying the existing guidance would water down the current risk assessment process. This could result in fewer sites being treated before they are built on, it claimed.

It argued that the changes would see local authorities being discouraged from declaring land to be 'contaminated', and would have to consider the social and environmental impact of decisions which would previously have been made on public health grounds.

New regulations to change the contaminated land regime in England and Wales will be laid before Parliament on Tuesday. A spokeswoman for the Government's environmental department, Defra, told Out-Law.com that new guidance would likely be published "in late March or early April".

"We have made it clear all along that our intention is to reduce the burden of regulation rather than the environmental outcomes they are designed to achieve," she said. "The current system for identifying and decontaminating brownfield sites is currently unclear and difficult to put into practice. We are therefore looking to simplify the guidance available – so we are protecting the environment, ensuring land is safe to be built on and removing unnecessary bureaucracy."

CIEH claims that the existing guidance (200-page / 530KB PDF)  does not adequately explain how to decide whether land is sufficiently contaminated so as to require  clean up before development works begin.

However, Howard Price of CIEH said that this was because the Government had not produced the technical guidance necessary for the regime to work.

"Changes in the new guidance appear collectively to raise the bar on what will qualify as 'contaminated' still without addressing the problem of making the line between that and 'not contaminated' any clearer. They may make developing some sites easier but at a lower standard of health protection," he warned.

In an impact assessment issued as part of its consultation into simplifying the regime, the Government had said that most of the cost savings as a result of its changes would come from reducing the costs to developers of remediating contaminated sites.

"There are pros and cons on simplifying the guidance and the CIEH is right to raise its concerns," said environmental law expert Helen Peters of Pinsent Masons, the law firm behind Out-Law.com. "When you lose the detail there is always the danger that issues won't be picked up adequately. However, the complexity of the regime and guidance is generally considered to be one of the reasons why the regime has not been effectively implemented by local authorities and the environment agencies."

"Simplifying the guidance has to be done right, and will hopefully speed up the time sites are investigated, determined as contaminated or not and where required a remediation strategy agreed and implemented," she said.