1. Contaminated land in England UKELA Seminar, Belfast October 2011 Andrew Wiseman Head of Environmental Law

2. Contaminated land in England  Introduction  Part 2A  Planning  The changes  Where next?

3. Contaminated land in England  The structure –Part 2A  The legislation  Statutory Guidance  Non statutory guidance

4. Contaminated land in England  The legislation –Environmental Protection Act 1990 Part 2A –Environment Act 1995 s78A(2) “…. any land which appears to the local authority.… to be in such a condition, by reason of substances in, on or under the land, that.... significant harm is being caused or there is a significant possibility of such harm being caused”

5. Contaminated land in England  Statutory Guidance –DEFRA Circular 01/2006  Table A (Annex 3 Para A.26) –What harm is regarded as significant (in relation to human beings) “Death, disease, serious injury ….”

6. Contaminated land in England  Statutory Guidance –DEFRA Circular 01/2006  Annex 3 Para A.28 –The Local Authority should take into account the following when looking at whether PoSH is SPoSH: –Nature & degree of harm –Susceptibility of the receptors –Timescale the harm may occur  Table B sets out conditions for SPoSH  An unacceptable intake

7. Contaminated land in England  Non Statutory Guidance –Guidance on the Legal Definition of Contaminated Land (July 2008) “.. Local Authorities must …. Conduct a science-based risk assessment which takes account of toxicological information, and site-specific and local circumstances” (Para 23)

8. Contaminated land in England  Government consultation –Responses have been analysed –Revised Statutory Guidance shortly?  Potentially in force by January 2012

9. Contaminated land in England  Local Authority inspection duties  A strategic approach to risk assessment  GACs  Risk summaries  POSH and SPOSH  The traffic light test –Green –Amber / Green –Amber / Red –Red –Category 1 - 4

10. Category 1 - 4 SPOSH POSH Chosen by developers? New screening? Current SGVs/GACs? CATEGORY 1 2 3 4

11. Contaminated land in England  Remediation –More sustainable –Health impacts of remediation –Shorter and more focussed

12. Contaminated land in England  Liability –No real changes  Class A (cause or knowingly permit)  Class B (current owner / occupier)  Orphan –Liability still there for landowners (current & former) –Some are excluded and liability can be apportioned

13. Contaminated land in England  Where next? –No numbers –Onus on local authorities –Liability still there for landowners (current and former)

14. Contaminated land in England  Planning –Under review (attack?)  Protection –v- localism –v- economic stimulation  NPPF –v- PPS23 –Shorter, more focussed?  Model planning conditions  Environmental Damage Regs

15. Soil Framework Directive  Among other things it is intended that it will cover the identification & remediation of contaminated land  Negotiations continue on what it should contain  Potential impact for Part 2A are some years down the line

16. Contact details Andrew Wiseman Head of Environmental Law andrew.wiseman@shlegal.com +44 (0)20 809 2528 +44 (0)79833 093 344