Out-Law / Your Daily Need-To-Know

Water part of contaminated land definition is changed

Out-Law News | 11 Apr 2012 | 10:58 am | 1 min. read

The statutory contaminated land regime has changed, with the principal change being to the definition of contaminated land. The changes took effect on 6 April.

The second limb of the definition of contaminated land has changed, narrowing the definition in respect of controlled waters. The changes apply a more stringent test to the contamination of controlled waters, bringing the statutory criteria in line with the test that is applied to land.  The change has been expected for some time and harmonises the two limbs of the definition of contaminated land.

The Department for Environment, Food and Rural Affairs (DEFRA) has said that the change in regulations will not have a significant impact in practice because regulators have tended to take this approach in any event in applying the regime to date.

Developers and promoters of development schemes are likely to view the change as favourable because regulators and local planning authorities will now need to show that there is "significant" water pollution or a "significant risk" of water pollution occurring before any land may be designated by the local authority as contaminated under the regime.

The changes to the statutory regime are accompanied by revised statutory guidance for England (74-page / 360KB PDF). This was laid before Parliament on 7 February and came into effect on 6 April.  Equivalent revised guidance will apply to Wales.

The guidance has been made simpler and clearer but it also emphasises a need for the regulators to focus on higher risk sites first. A new four category test has been developed to clarify when land does and does not need to be when land does and does not need to be cleaned up, or remediated. The guidance on liability and remediation has been shortened but remains substantially unchanged. 

Environmental law expert Linda Fletcher of Pinsent Masons, the law firm behind Out-Law.com, said that the changes to the regime bring the criteria for establishing pollution of controlled waters in line with the test applied to land. This is "long overdue” and "not unexpected” as the changes were first proposed in the Water Act 2003, she said. 

The new guidance also gives local authorities more clarity on how they should determine whether land is contaminated, said Fletcher.

In addition to the changes to the statutory contaminated land regime, "the new statutory guidance should also be welcomed and it will be interesting to see if the clarification of the local authority's responsibilities and the standard of remediation that is to be required will assist local authority's in applying the regime on a more consistent basis," said Fletcher.

Fletcher said that the new requirement for local authority's to prepare a risk summary for any land it considers "is likely to be determined as contaminated land" should also encourage local authorities "taking practical steps to apply the regime to land in their area."