Land Pollution

We are a small, densely populated country with a long industrial heritage. In recent years, much
heavy industry has closed. It has sometimes left behind a legacy of pollution. In 2005 it was
estimated that up to 325,000 sites might be polluted as a result of former uses. As many as
33,500 sites could require some form of clean up. It is also possible that pollution could migrate
from such contaminated sites to neighbouring land. For example, poorly engineered waste landfill
sites might generate methane gas which can travel underground. It is even possible that some
former industrial sites have been developed without proper attention being given to polluting
materials that remain on the site.

There are legal measures to deal with all of these problems under Part 2A of the Environmental
Protection Act 1990 under the ‘contaminated land regime’. These pages explain who bears the
responsibility for land based pollution and how they can be made to clean it up.

What Is Contaminated Land?

It is possible to order the clean-up of land which is considered 'contaminated. Land is
contaminated when there are polluting substances in, on or under the land. This may mean that
the substances have been left in buildings or on land or that the substances are buried in the
ground. It doesn't really matter what these substances are providing they are giving rise to
significant harm or water pollution.

Every local council has a duty under Part 2A of the Environmental Protection Act (EPA) 1990 to
devise a strategy to identify all contaminated sites within their area. Where contamination is found
to be significant, the Council must actively take steps to remove or reduce the risk to people and
the environment. If reports are made about problem sites then your local authority has a duty to
investigate. If you contact them saying that you are worried about harmful substances on land in
your local area, they should take your complaint seriously and check whether significant harm
or water pollution is resulting from the presence of those substances.

Types of Harm
If a source of pollution in terms of substances left on the land have a pathway through which the
pollution can reach a target then we call this a pollution linkage. Examples of pollution linkages
would include:

 Asbestos from a derelict building travelling through the air to affect people nearby.

 Spilt oil travelling through the drainage system to a nearby river.

 Chemicals in leaking drums travelling down through the soil into an underground water
supply.

 Air emissions from a factory being carried by the wind to a nearby nature reserve which is
being harmed as a result.

These are just examples. A pollution linkage may lead to the land being designated as a
contaminated site in four situations:

 Significant harm, including harm attributable to radioactivity, is being caused.

 There is a significant possibility of this type of significant harm being caused.

 Pollution of controlled waters is being caused.

 Pollution of controlled waters is likely to be caused.

Some help is needed with the wording given above:

Significant harm in relation to human beings includes serious injury, death, disease, genetic
mutation, birth defects, cancer or impairment of reproductive functions and mental dysfunctions
because of the effects of a pollutant on the body.

Controlled waters means any coastal waters including territorial waters seawards for three
miles, inland freshwaters, including waters in lakes or ponds, rivers or other watercourses and
waters in underground strata (known as groundwaters). You can get more information about
controlled waters from our section on water pollution offences.

When we are looking at what might be harmed, we are interested not only in humans but also
buildings, protected habitats, and crops or farmed animals. Wherever these are facing significant
harm as a result of land based pollution, it might be necessary to designate the site as
contaminated.

When A Site Is Contaminated

Where there is a pollution linkage found on a site that is causing or threatening significant harm or
water pollution, then that site ought to be designated as contaminated land. Once a determination
has been made that land is "contaminated land" the local authority is required to inform various
people about the determination including:

 the owner of the land

 the occupier of the land

 each person who appears to be an "appropriate person"

 the Environment Agency

Providing it is possible to trace the appropriate persons - those responsible for the presence of
substances on the land - then these parties will be made to clean up. If necessary, a notice (called
a remediation notice) will be served on them requiring them to do so. A formal notice is not always
necessary, however, as agreement may be reached to clean up the land by voluntary action.

The authorities have to wait for at least three months following the designation of the site before
they can serve a remediation notice. During this time consultation and negotiation will take place
and will focus on is needed to achieve the remediation of the site and on what particular solutions
would eliminate the harm caused by the site.

If it happened that the appropriate parties refused to clean up, then in addition to any criminal
proceedings against them, the authorities can clean up the land themselves and take action to
recover the costs incurred.

Guidance Documents
DEFRA: Contaminated Land Statutory Guidance (April 2012)

Guides on how to interpret and implement the contaminated land legislation (Part 2A of the
Environmental Protection Act 1990). This includes:
  explaining how local authorities should implement the contaminated land regime, including
how to decide whether land is contaminated;

 elaborating on the goals of remediation, and how regulators should ensure that
remediation requirements are reasonable.

DEFRA/CIEH: Local Authority Guide to the Application of Part 2A of the Environmental Protection
Act 1990

Part C of the Guidance document provides useful information on determining if land is

contaminated.

Who is Responsible?
The law labels the responsible parties as "appropriate persons". These are divided into two classes
of people. The first group, Class A persons, are those who caused or knowingly permitted the
polluting substances to be in, on or under the land.

The word "cause" here just means that the person is responsible for the substances being on the
land. It doesn't imply that they have done anything wrong. For example, in the past we may have
engaged in industrial practices, such as land-filling waste within the vicinity of an industrial facility
like a mine or paper mill, which we would not consider appropriate today. Similarly when we
decommissioned industrial facilities such as a gas or steel works, we may have left contaminants
on the site because that was not considered dangerous at the time. Nonetheless, the law now
considers that the polluter should pay and that the appropriate persons who ran such enterprises
should now clean up any remaining contamination.

The phrase "knowingly permit" suggests that certain persons may have known about polluting
substances on the site but failed to do anything to remove these; instead they permitted these to
remain. These persons will be considered just as responsible as those who caused the substances
to be there. The terms "cause" and "knowingly permit" are also used in water pollution
offences. Click here for more information.

The class A group is built up, therefore, of the parties who caused or knowingly permitted the
substances to be on the land. There may be a number of such persons and they will bear
responsibility between themselves as directed in any notice served. It might be the case, however,
that nobody in this group can be found. This may be because the substances have been
abandoned on land by persons unknown or because the substances have been there for many
years and the responsible party cannot be traced or no longer exists - as when a company is
wound up.

If no Class A person can be found then responsibility will pass to any Class B persons. This group
is made up of the current owners or occupiers of the contaminated site. Owners or occupiers only
become "appropriate persons" where no Class A person can be found. These owners and occupiers
have neither caused nor permitted the pollution to be present on the land, but the law takes the
view that someone should be responsible for the site. The worry here is that the owners or
occupiers might be simply be living in housing built on former industrial land or small companies
on an industrial estate which used have some other, more polluting use. However, the authorities
have the power to clean up land themselves and they must consider the hardship that might be
caused in seeking to recover the costs of clean up (see the Bawtry case study).

Guidance Document
DEFRA: Contaminated Land Statutory Guidance (April 2012)
 Section 7 gives guidance on who is responsible for what, where more than one person may be
liable.

DEFRA/CIEH: Local Authority Guide to the Application of Part 2A of the Environmental Protection
Act 1990

Part D of the Guidance document provides useful information on how to decide who is the
appropriate person to clean up a contaminated site.

Land Pollution and the Law

Because the law makes appropriate persons clean up pollution on land where it is causing
significant harm or water pollution, where former industrial land changes hands or is re-developed,
it is quite common for the question of pollution to be addressed. The law assists with this by
offering incentives to deal with the problem. For example:

 If one appropriate person offers money to another to pay for the clean-up of the land, then
assuming that the money is sufficient to deal with the problem then the person paying the money
over will escape any liability in the future

 If a company selling land informs the person buying it of the presence of the polluting
substances and/or allows these to be inspected then that company will be free from future liability
for cleaning up the land.

By using these sorts of incentives the law is trying to get parties to consider how to deal with
historic pollution especially where land is changing hands. In addition to this, the planning system
makes provision for ensuring that land based pollution is addressed in the course of land re-
development.