Part 2A came into force on 1 April 2000. It provides the legislative framework for the identification and remediation of contaminated land, introducing for the first time a statutory definition of contaminated land. It is aimed at addressing land which has been historically contaminated with substances and which poses unacceptable risks to human health or the wider environment in the context of current use of the land.
The primary legislation contains the structure and main provisions of the new regime. It consists of sections 78A to 78YC of the Environmental Protection Act 1990, which were inserted by section 57 of the Environment Act 1995. The primary legislation has been modified by regulations to cover radioactive contaminated land.
In addition to the requirements contained in the primary legislation, operation of the regime is subject to regulations and statutory guidance.
Statutory guidance provides the detailed framework for the definition, identification and remediation of contaminated land, as well as exclusion from, and apportionment of, liability for remediation and the recovery of costs of remediation and relief from hardship. There have been some significant changes to the regime with revised statutory guidance coming into effect on the 6th April 2012.
The Department for Environment, Food and Rural Affairs has published Contaminated Land Statutory Guidance and the Department of Energy & Climate Change has published Radioactive Contaminated Land Statutory Guidance.
Regulations made under Part 2A deal with: the descriptions of land which are required to be designated as special sites; the contents of, and arrangements for serving, remediation notices; compensation to third parties for granting rights of entry etc to land; grounds and procedures of appeal against a remediation notices; and particulars to be included in the public registers.
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 it 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) significant pollution of controlled waters is being caused or there is a significant possibility of such pollution being caused;
In relation to harm from radioactivity the definition has been modified by regulation to read:
"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 -
(a) harm is being caused, or
(b) there is a significant possibility of such harm being caused,.."
These definitions reflect the intended role of the Part 2A regime, which is to enable the identification and remediation of land where contamination is causing unacceptable risks to human health or the wider environment; or lasting exposure to radiation where action is likely to be justified. The definitions do not necessarily include all land where contamination is present.
Harm is defined as "harm to the health of living organisms or other interference with the ecological systems of which they form a part, and in the case of man includes harm to his property".
The statutory guidance provides guidance on what should be considered to represent significant harm, or a significant possibility of significant harm. In relation to human health, significant harm includes death, life threatening diseases and birth defects.
In the case of radioactivity, harm is defined as meaning “lasting exposure to any person resulting from the after-effects of a radiological emergency, past practice or past work activity.”
Whether harm is being caused or whether the possibility of harm being caused is significant shall be determined in accordance with the statutory guidance.