1.3 Regulatory Context

Contaminated Land Inspection Strategy
1.3 Regulatory Context

This section sets out the responsibilities of the regulatory bodies under the new regime for contaminated land.

Part IIA of the Environmental Protection Act 1990, which came into force in England on the 1st April 2000, introduces a new regime for the identification and remediation of contaminated land. Part IIA of the Environmental Protection Act 1990 was inserted by Section 57 of the Environment Act 1995 [2]. The regime is considered in some detail in DETR Circular 02/2000, which includes a statement of Government policy, a description of the new regime, the statutory guidance and a guide to the supporting regulations. The Contaminated Land (England) Regulations 2000 [3] deal with particular aspects of the regime, including Special Sites, remediation notices, appeals and registers.

1.3.1 Role of Bath and North East Somerset Council

Local authorities have been given the primary regulatory role under the Part IIA regime. B&NES Council has a duty to:

  • Act in accordance with guidance issued by the Secretary of State and inspect its area from time to time to identify contaminated land

  • Determine whether particular sites meet the statutory definition of contaminated land, and establish if they should be classified as ‘Special Sites’

  • Act as the enforcing authority for all contaminated land with the exception of Special Sites, where the Environment Agency assumes responsibility.

1.3.2 Role of the Environment Agency

The Environment Agency’s role is to: -

  • Provide relevant information held by the Agency to local authorities

  • Ensure remediation of Special Sites

  • Provide advice to local authorities on identifying and dealing with pollution of controlled waters

  • Provide site specific guidance to local authorities on contaminated land

  • Publish periodic reports on contaminated land, and the state of contaminated land nationally

  • Deal with Special Sites

1.3.3 Definition of Contaminated Land

Contaminated land is defined (1) as “…any land which appears to the local authority in whose area it is situated 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 (categories of significant harm are detailed in Appendix F: Categories of Significant Harm); or

  • pollution of controlled waters is being, or is likely to be caused”.

Part IIA requires land designated as contaminated to have a significant pollutant linkage.

(1) Environmental Protection Act (1990) Part IIA, Section 78A(2) 

1.3.4  Pollutant Linkages

The legislation requires that for an area of ground to be determined to be contaminated land, the local authority initially identifies the presence, or potential presence of the following three elements with respect to the land;

  • contaminant(s) or source(s) of contamination: a substance or range of chemically related substances with similar effects, which is in, on, or under the land, and has the potential to cause harm to, or pollution of, a specified receptor;

  • a receptor or target upon which any contamination identified may cause harm; this may be in the form of living organisms including humans and identified types of livestock, specified types of ecological systems, property and controlled bodies of water; and

  • a pathway, that is the identification or evidence of routes or means by which the receptor is, or could be, exposed to the source of contamination. A pathway could, for example, be air, soil or water.

The presence of a receptor, pathway and source is termed a pollutant linkage, as illustrated. Land will be determined contaminated if a significant pollutant linkage exists

1.3.5 Risk Assessment

Risk may be defined as the combination of the probability or frequency of a hazard occurring and the magnitude or seriousness of the consequences. Through desk studies, site investigation and interpretation of data, risk assessment will enable B&NES Council to identify and evaluate the level of risk, and to reach decisions when the level is found to be unacceptable.

As required by the guidance [4], the Council will be using a risk assessment based approach in the identification of contaminated land. The document “Guidelines for Environmental Risk Assessment and Management” [5] produced by Environment Agency and Institute for Environment and Health, details the principles of risk assessment.

1.3.6 Requirements for Strategic Approach

The statutory guidance requires that a strategic approach to the programme of land investigation be formulated over the initial 15 months from the onset of the regime on 1st April 2000.

This written strategy is designed to ensure a consistent ordered approach to the task of inspection whilst taking into account information already held within the local authority domain and further, any additional matters brought to its attention by third parties.

The approach is required to:

  • be rational, ordered and efficient;

  • be proportionate to the seriousness of any actual or potential risk;

  • seek to ensure that the most pressing and serious problems are located first;

  • ensure that resources are concentrated on investigating in areas where the authority is most likely to identify contaminated land; and to

  • ensure that the local authority efficiently identifies requirements for the detailed inspection of particular areas of land.

1.3.7 Interaction with Other Regulatory Regimes

Those sites which may be considered contaminated, but are controlled by legislation in the acts below, will be dealt with by the Environment Agency:

  • Pollution Prevention and Control Act 1999

  • Integrated Pollution Control

  • The relevant provisions within Part II, Waste on Land, of the EPA 1990

  • The Water Resources Act 1991

  • Waste Management Licensing

Other regimes currently in place for the various regulatory authorities to use, in order to prevent or deal with contamination, include:

  • Water Resources Act 1991

  • Statutory Nuisance

  • Town and Country Planning Act 1990, and associated legislation

  • Health and Safety at Work, etc. Act 1974

  • Food Standards Act 1999

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