What is "Contaminated Land"?
The contaminated land regime, referred to as Part 2A of the Environmental Protection Act, was introduced in 1995. It provides a legislative framework for dealing with contaminated land.
Section 78A(2) of Part 2A of the Environmental Protection Act 1990 defines "contaminated land" as:
"Any land which appears to the local authority in whose area the land is situated to be in such a condition, by reason of substances in, on or under the land, that (a) significant harm is being caused or there is a significant possibility of such harm being caused; or (b) pollution of controlled waters is being, or is likely to be, caused".
This guidance defines harm as:
"Harm to health of living organisms or other interference with ecological systems of which they form a part".
This can also include harm to property.
It is important to note that the presence of contaminants alone is not sufficient for a site to be deemed “Contaminated Land” within the terms of the legislation.
In order for land to be determined as contaminated land, the Council must identify the existence of a “pollution linkage”. For a pollution linkage to exist, the following three components must be present:
- A source of contamination
- A receptor that could be impacted by the contamination (eg a property or its occupiers)
- A pathway capable of exposing a receptor to the contaminant source.
Should these components exist, the Council must then be satisfied that the pollution linkage is significant. Only in cases where all three elements of a pollutant linkage are present can land be determined as contaminated land.
Initially, potentially contaminated land is identified through reference to “desktop” sources such as historical maps and trade directories of previous industrial uses of areas of land in the borough.
Contaminated land in Sandwell
As part of the Black Country, Sandwell has a long history of industrial activity. This has had a considerable impact on the condition of much of the land and hence left a potential legacy of soil contamination.
The Council is responsible for implementing the Contaminated Land Regulations, which require it to inspect the land in the borough to identify contaminated land. Where such land is identified, the Council must by law make the determination that land is 'contaminated land' as defined in the Act and arrange for it to be cleaned up. Ideally, this work should be undertaken through the planning process or by voluntary agreement. If however, this is not possible, the law requires the Council to take legal action to clean up the land. In instances where no polluter or owner of the land in question can be identified, the Council may be required to undertake the work itself.
The Environmental Protection Act 1990 – Part IIA and accompanying Statutory Guidance (as issued in April 2012) require that all local authorities must prepare a strategy detailing how they plan to identify and deal with contaminated land within their boundaries. Sandwell’s Contaminated Land Inspection Strategy (January 2013) is available here.
In accordance with Government Policy, where possible the Council aims to investigate and if required remediate potentially contaminated land through redevelopment and the planning process. If a site proposed for redevelopment has a history of activities which may have contaminated the land, the Council may require the developer to carry out an investigation and where necessary clean-up the land to a standard that makes it suitable for its new use.
Register of contaminated land
All local authorities are required to maintain a public register of contaminated land within their borough.
The information kept on the register relates to regulatory action and remediation. The information which must be recorded is specified in the Contaminated Land (England) Regulations 2006 and can include copies of appropriate notices, declarations and statements. A site will not appear on the register until one of the specified documents, as defined by the regulations is available.
It should be noted however that premises identified as sites of concern, sites under investigation and sites determined as contaminated land will NOT appear on the register until the point that further regulatory action has been taken, eg a remediation declaration is made.
The Council has a statutory duty to inspect the borough to identify potential contaminated land, as defined by Part 2A, and as such the register is under constant review.
The Council’s contaminated land register currently has one entry, as follows:
Land at Brades Rise, Oldbury, West Midlands – Remediation Statement
Contaminated land enquiries
The Council can provide information about a property or site in relation to potential contamination. For the majority of properties, the information that can be made available relates primarily to the previous use of the site and immediate surrounding area.
Should a property be situated on land with a past industrial use, it does not necessarily follow that the property is on contaminated land, but instead indicates potential for contamination to be present.
Contaminated land searches are a chargeable service, with the cost dependent on how long it takes to compile the response.
Please note that this service will not provide definitive answers about past or present contamination. Interested parties are advised to seek professional advice to assess the available information. It is the responsibility of those involved in the transaction process to satisfy themselves about the actual condition of land at a property or site.
Contaminated land enquires can be made by using your MySandwell account.