One year after implementation of the new contaminated land regime its success hinges on local authority resources, says John Waters.
It is now more than a year since a new regime to manage contaminated land was introduced in England and subsequently in Scotland and Wales.
The guidance, which provides specific contaminated land legislation on historical pollution incidents, is to support the implementation of Part IIA of the Environment Protection Act 1990, which was amended by Section 57 of the Environment Act 1995.
But how has this change affected landowners, regulators and consultants as they seek to redevelop brownfield sites?
The main objective of the new regime is to provide an improved system for identifying and remediating land where historical contamination is causing unacceptable risks to human health or the wider environment.
For the first time there is a specific definition of contaminated land, namely 'land which appears. . . to be in such a condition. . . 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 means the mere presence of contamination will not trigger action, unless it meets the 'significance' criteria.
Local authorities are under a statutory duty to identify contaminated land in their areas and to require landowners to investigate and, if necessary, clean up sites. Local authorities had to adopt a formal written strategy setting out how they propose to meet their duty by July 2001, a deadline only 50% are believed to have met.
Members of the Environmental Industries Commission (EIC) report that local authority implementation of Part IIA is patchy and levels of staff expertise vary widely.
Local authorities will also be required to establish and maintain a public remediation register. This risk of disclosure may be a more important encouragement to remedial action than the threat of prosecution and fines.
In cases where the enforcing authority believes there is imminent danger of significant harm, it can require urgent remediation, either through serving a remediation notice or conducting the works itself. However, the Government's objective is to achieve voluntary remediation and resort to enforcement only if agreement cannot be reached.
At the consultation stage plenty of concerns were expressed by landowners/developers about the difficulty of implementing the Part IIA regime, but many of these have proved unfounded.
There is clear acceptance in the guidance of the use of risk assessment to evaluate the impact of any contamination, rather than relying on arbitrary look-up tables which were developed for generic environmental or human health sensitivity scenarios.
Remediation has increasingly become targeted on those areas of a site that demonstrably require it and has provided the landowner with a mechanism to limit demands for excessive or unwarranted remediation from some of the more enthusiastic regulators.
It is also apparent that while there may be plenty of sites that are partially contaminated, only a small minority are so significantly contaminated that they may be defined as statutory contaminated land. So in the majority of cases contamination issues are dealt with as before through the planning regime, but using the risk assessment principles in the contaminated land guidance. As such there is limited recourse to protracted legal argument which some commentators were worried about pre-implementation.
Now best practice is defined by the guidance, landowners are finding it easier to obtain finance and environmental impairment insurance for redevelopment of contaminated sites.
An accelerated tax credits scheme to help clean up contaminated sites was announced by the Chancellor in his Budget statement in April 2001 (GE June 2001). This offers up to 150% relief on qualifying contaminated land expenditure which may also help, although it is too early to say how much. Key beneficiaries are likely to be property developers, because a polluter cannot qualify for tax relief - the Government does not want to pay companies to clean up their own pollution.
Implementation of Part IIA has helped improve the general quality of consulting advice to clients in that risk-based assessment requires appropriate levels of quality assured data and highly trained and experienced staff.
The availability of a framework for consultants on either side of a transaction to resolve technical differences and agree appropriate and sustainable remedial strategies with the regulators has been beneficial. It has also differentiated those consultants who can add value to ensure that the scope of remedial works are consistent with redevelopment potential and financial viability of a brownfield site.
Although the Government has provided some extra money, one of the factors that will be critical in the success of this regime is the availability and competence of local authority resources.
In some cases the local authority and the Environment Agency cannot agree which body should take the lead as the enforcing authority.
Already there are signs that planning authorities and environmental health officers may view remediation strategies differently from the Environment Agency - as shown by a number of high profile residential development cases.
Local authorities are under pressure to meet the Government's target for 60% of new residential developments to be on brownfield sites, yet their resources to assess risk-based remedial approaches proposed by increasingly sophisticated consultants/developers are limited.
Rather than the scope and quality of the guidance itself, balancing these competing agendas may yet be the primary issue on which the success of the Part IIA contaminated land regime will be judged.
John Waters is chair of the Environmental Industries Commission Contaminated Land Working Group and director of Environmental Resources Management.
www. eic-uk. co. uk