The Role of the Contaminated Land Regime in Cleaning up Contaminated Land in the UK - Essay Example

? Number: The role of the contaminated land regime in cleaning up contaminated land in the UK, and the planning system interrelating to it Local authorities are accountable for addressing contaminated land issues within two different regimes. These are the contaminated land regime; generally referred to as part 2A, and the Planning Regime (development control). Section 78A (2) of the 1990 environmental protection act defines contaminated land as “any land appearing in the local authority location where noteworthy damage is occurring or is likely to occur in, on or under the ground”. The land has to be in a condition such that noteworthy damage is arising or/and, there is a noteworthy probability of the said damage being caused. Additionally, the land has to be in a condition such that controlled waters are being polluted or there is a probability that contamination is likely to occur. The water Act defines contaminated controlled waters as a situation where significant effluence of restricted waters is occurring, and/or there is a noteworthy probability of the said contamination occurring. Polluted land must fall within part 2A definition for it to be said to cause significant damage to people’s wellbeing or other specified receptors. Land development has to incorporate part 2A since a change in land use might bring the development inside the mandatory definition of contaminated land by creating a pollutant linkage (Organisation for Economic Co-Operation and Development, 2002). Other regimes that interact with management of land affected by contamination include the IPC, PPC, WML and WRA. Integrated pollution control (IPC) controls the management of large industrial buildings to lessen the danger of contamination arising. The body is also responsible for remediating the danger resulting from of the authorization. The waste management licensing (WML) controls the way in which waste management facilities are managed, as well as controls the disposal and recovery of controlled waste. Water resource act takes actions to safeguard or remedy the contamination of proscribed waters. The United Kingdom government has instituted and put in place a proactive regime and legal framework to handle land that has been previously contaminated. The new regime offers a means to put in force remediation where the IPC and WML may not apply. For new freeways, the prerequisite for handling the contaminated land will be agreed with the Environment Agency during the planned development. New development may also involve the Integrated Pollution Controls and the Waste Management Licensing. Contaminated land regime or WML might apply depending on the degree of contamination on existing sites that contain contaminated land. The remediation of polluted site is taken to be a waste management operation, and thus falls under the WML regime (Wolf& Stanley, 2010). For a number of remedial techniques, the specialized remediation contractor will need a mobile plant license and waste management site license incase contaminated material remains in the site. The regulatory framework now exists to put in force remediation and cleanup of contaminated land in any state of affairs. In instances where WML and IPC are in force on a specific land site, they will go on being used. The contaminated land administration acts to clean up areas that are not covered under IPC and WML, and initiate the remediation of static land that is polluted. Static land refers to land that is not undergoing redevelopment. Risk evaluation principles are employed to evaluate whether a site is contaminated under the meaning of the Environmental Act. Pollution linkage Before land may be defined as contaminated, the risk evaluation process has first to establish that noteworthy damage is being caused, or that there is a considerable likelihood of damage being caused by the presence of a pollutant linkage. Three elements have to be set out for there to be an existence of a noteworthy pollutant. These elements are 1. A contaminant or the pollution source. A contaminant refers to a substance that is in, on or below the ground, and which is capable of causing damage or resulting in pollution of restricted waters. Contaminating substances may include metals like chromium, nickel and lead and inorganic compounds like cyanide. Other contaminant include organic components like petrol, solvents; gases like carbon dioxide and methane, and extremely high or low Ph. 2. A pathway, which is a route or routes by which the contaminant is causing noteworthy damage of noteworthy probability of damage to a receptor. 3. A target (receptor) refers to living organisms, an ecological system, or some piece of property that is likely to be damaged by the contaminant. A receptor also denotes the controlled waters that are being or are likely to be polluted by the contaminant (Environmental Protection Group, 2001). Local authorities and the Environment Agency mutually regulate contaminated land regime, where the local authority is the lead regulator. Its main obligation is to identify and determine contaminated land once an important pollution linkage has been acknowledged by the local authority. The implementing body has legal authority to call for remediation of polluted land, once a momentous pollutant linkage has been established and officially declared contaminated land by the local authority. This may include treatment, alteration or eliminating the contaminant, breaking the route or changing the receptor’s behavior in some way (Zhao, 2013). The local authority is the enforcing authority for all sites excluding special sites like the specified water bodies and sites under the regime of PPC and IPC. Where a noteworthy pollution linkage subsists, the site can be set out as contaminated and officially designated as a special site. The agency then becomes the implementing authority. In cases where there is a practical likelihood that the site may be contaminated, and matches the description of a special site, the agency can inspect hat prospective special site upon request from the local authority, before the site is determined as contaminated land by the local authority. Appropriate persons The implementing authority has to establish and consult the individuals that might be accountable for site remediation. Appropriate persons may either be occupier of the land, or/ and those who caused the pollution. The appropriate persons may establish whether to execute remediation voluntarily, in which case remediation statement is agreed. Remediation statement highlights what ought to be executed by means of remediation, by when and by whom. The implementing authority makes sure that the agreed upon actions are indeed executed. In cases where the appropriate individual does not consent to undertaking voluntary remedial action, or where the implementing body is unsatisfied that the remedial provision has not been observed, the implementing body may serve the appropriate person with a remediation notice. This calls on them to remediate the site according to the details specified in the notice. Orphan sites are contaminated land where appropriate person is not found. In such an instance, the implementing body ensures that the momentous pollutant linkage is broken and uses its mandate to execute remediation. The supplementary credit approval scheme provides that local authorities should finance such remediation (Organisation for Economic Cooperation and Development, 2002). In instances where nothing reasonable can be specified by means of remediation, having regard for the cost of remediation and the seriousness of damage or pollution, the implementing authority. A remedial declaration is then made and put on the public register clearly indicating why no action was initiated. The implementing body ought to regard for the compulsory guidance and, for specific actions, they have to act according to it. The role of the developer The developer has to ensure that development is safe and apt for the activity for which it is planned for in case of proposed development. The developer is thus accountable for establishing whether a certain site is appropriate for a particular development, or may be made so by remedial action. To demonstrate that land is suitable, the contaminated land regime necessitates the developer to establish three things. One, the developer has to establish whether the land in issue is already affected by contamination through contaminant-pathway- target pollutant linkages (Macrory, 2008). Secondly, the developer has to determine whether the proposed development will give rise to new linkages, such as fresh routes by which the current contaminants may reach the present or the proposed targets. Thirdly, the developer must establish what act is taken to sever the pollutant linkages and avoid new ones. This includes actions to be done to handle any unacceptable perils and facilitate secure development and future tenancy of the site and neighboring land. The developer has to satisfy the local authority that intolerable peril from pollution will be effectively attended to through remediation without unnecessary environmental impact during and after the development. In so doing, a land developer must be aware that acts or omissions on their part can result into liability being incurred under Part 2A. In the case of national grid gas Plc (formerly Transco Plc) v Environmental Agency (2007), there remains controversies as to whether successor companies are liable for land contamination or not (Macrory, 2008). The House of Lords in this case held that the contaminated land regime does not compel liability on legislative successors to companies whose gasworks caused contamination. The House of Lords overruled the high court’s decision permitting the “polluter pays” rule to give an extended interpretation of the legal language. The Lord’s decision u-turned the high court’s verdict, indicating that retrospective obligation is inflicted under a legislative regime, it is for legislature rather than the courts to classify who should be accountable. The National Grid Gas v Environmental Agency case related to previous gasworks in Doncaster, where the land in question was used by the Bawtry and District Gas Company for coal gasworks. Coal gasworks stopped right away after nationalization in 1948, and the site was sold for housing needs to a private developer (Ross, 2007). Previous coal gasworks caused pollution problems, making the Environment Agency declare the entire area (11 homes) a special site in accordance to contaminated land regime. Remediation cost was set approximately at ? 66,000 per house. Contention arose as to who was responsible for paying up the cost. The Environment Agency held that both the National Grid Gas and the private developers were equivalently responsible. The developers were inexistent at the time. The Agency then carried out the suitable works and requested the National Grid Gas to contribute half of the amount. The fundamental question arose as to whether National Grid Gas was responsible as the legal successors to the initial gas companies (Macrory, 2008). The National Grid Gas held that it did not exist at the time contamination was caused, in spite of being the current owner. It was ruled that the change of property and obligations by the 1948 Gas Act could not stretch to encompass obligations that were made when the polluted land stipulations came into existence in 1995. The transfer, successive reorganizing under the 1972 Gas Act, and the eventual privatization comprised the transfer of all obligations subsisting “immediately before” the transfer time. Thus, the legal responsibility at issue could not be supposed to subsist at those dates even if on a conditional basis (Ross, 2007). The Environment Agency argued its case on the ‘polluter pays” rule, holding that innocent land proprietors need not pay. Lord Scott held that he did not doubt or quarrel with the “polluter pays” rule, and went on to say that Transco was not a contaminator, and is no less blameless of having “caused or deliberately allowed the contamination than the innocent inhabitant of the 11 houses” (Ross, 2007). Lord Scott held that extremely careful legal language and wording would be required to compel “a company blameless on any contaminating action an obligation to pay for works to remedy contamination caused by others on land it had never possessed or had awareness thereof”. Therefore, the position of subsequent owners of contaminated land will depend on the comprehensive phrasing of the law that brought them into being. Where an agreed remediation plan includes future scrutiny and maintenance designs, preparations will require to be made to make sure that any succeeding proprietor is entirely aware of these pre-requisites and assumes continuing obligations that stay with the new land proprietor (Macrory, 2008). The planning regime The most noteworthy driver for remediating sites affected by contamination is the necessity to use the land and improve its value in doing so. This entails the modification in land usage and implementation by the local planning authorities. Land contamination is a significant concern under the Town and Country Planning Act. Authorities responsible for planning have to examine the probable repercussion of contamination when developing local and structural plans, as well as when establishing personal applications for planning authorization. The planning regime has to acknowledge the present and proposed new use of the land when evaluating the impact of pollution and establishing remediation goals. Planning authorizations may impose provisions on a land developer to make sure that any contamination is remediated to a typical proper for the proposed use. Under the planning regime, remedial goals relate to the risk and danger linked to the assumed behavior of the land occupant. For illustration, land used for residential purposes is deemed as sensitive as it is associated with the most sensitive grouping in the society; children. Land that is used for manufacturing and business reasons is deemed less sensitive. Apparently, the remediation goals would reflect these differences. Nevertheless, the land developer may wish to remediate to an advanced level. In case the land is affected by contamination; and its present use does not present an intolerable danger; then it is handled by the planning regime when the land is to be developed (Brady, 2012). The existence of pollution is a material planning consideration. The planning regime advises that the likelihood of pollution should be taken as a precautionary measure when considering planning applications; in relation to all land subject to or close to previous industrial use. Another precautionary measure is the likelihood of land use that is deemed as receptive to contamination like hospitals. Wherever development is projected on land that might be affected by pollution, a risk evaluation should be carried out by the applicant for deliberation by the local planning authority. Any existing or new unacceptable perils ought to be established, and measures taken to deal with them successfully as part of the development process (Lee, 2011). The planning officer has to consult with the contaminated land section when a planning application is made in order to set out whether there is the likelihood of contamination to manipulate the site. The consultations also establish whether appropriate measures have been proposed to address any perils and whether the suggested development is acceptable. Other bodies affiliated to the Contaminated Land regime may be consulted as and when necessary. These are such as English Heritage and Conservation and Archaeology. If there is the likelihood for contamination to affect the land or the end use is essentially susceptible, proposals will be made that certain conditions be imposed on the development. The conditions are set to make sure that the site is made appropriate for its suitable end use, and ensure the wellbeing of site personnel, upcoming site clients, as well as for the safeguard of the environment (Environmental protection group contaminated land section, 2011). The contaminated land regime enshrines the risk evaluation principles make sure that the site is in a proper state for its existing use. Risk evaluation takes place before the local authority’s determination of whether land is contaminated or not. Legal measures have to be followed to the letter in guiding the authority assess a site. Specifically, the local authority establishes the land is contaminated on the basis that noteworthy damage is occurring, and/or there exists a momentous likelihood of damage being caused, where scientific and technical evaluations have been carried out and a pollutant linkage identified. After risk evaluation has been conducted, remedial measures are selected, evaluated and then implemented. Remediation techniques may either be civil engineering or process based technologies. The remedial strategy and technique adopted depends on the site-specific basis because every technology is capable of treating a wide range of contaminants (UKELA, 2013). In conclusion, the local authority has four main tasks in relation to cleaning up contaminated land and planning requirements to it. The local authority determines who ought to bear liability for the remediation of appropriate land by identifying the appropriate the appropriate person/s. Secondly, to establish what remediation is needed in any case and make sure that such remediation indeed takes place. This is done through agreement or serving a notice of remediation with the appropriate persons and carrying out remediation itself in instances where an appropriate person cannot be reached. Thirdly, carrying out remediation work where a notice of remediation is served, in order to establish who should bear what quantity of responsibility for meeting the costs of the work. Additionally, the contaminated land regime records certain information regarding its dogmatic doings on a community register. Bibliography Brady, J., 2012. Environmental Management in Organizations: The IEMA Handbook. London: Routledge. Environment Agency, 2002. Dealing With Contaminated Land in England. Accessed on 17 April 2013 from: http://www.environment- agency.gov.uk/static/documents/Leisure/dealing_with_contaminated_land_i.pdf. Environmental protection group contaminated land section, 2011. Planning guidance in relation to ground contamination: guidance note for applicants, developers, land owners and consultants. Version 3.01. Environmental Protection Group, 2001. Contaminated Land Inspection Strategy. Accessed on 17 April 2013 from: http://www.lewisham.gov.uk/SiteCollectionDocuments/ContaminatedLandInspectionStra tegy.pdf. Health Protection Agency, 2009. An Introduction To Land Contamination For Public Health Professionals. Accessed on 17 April 2013 from: http://www.hpa.org.uk/webc/HPAwebFile/HPAweb_C/1242198452810. Hutchings, T., 2002. The Opportunities for Woodland on Contaminated Land. Accessed on 17 April 2013 from: http://www.forestry.gov.uk/pdf/fcin44.pdf/$file/fcin44.pdf. Lee, R., 2011. Contaminated Land Regime. Accessed on 17 April 2013 from: http://www.eric- group.co.uk/environmental_regulation_story.php?content_id=118. Macrory, R., 2008. Regulation, Enforcement and Governance in Environmental Law. UK: Cameron May. Organisation for Economic Co-Operation and Development, 2002. OECD Environmental Performance Reviews: United Kingdom 2002. London: OECD Publishing. Ross, K., 2007. Contaminated Land- Where Are We Now. The Journal Of The Law Society Of Scotland. Accessed on 17 April 2013 from: http://www.journalonline.co.uk/Magazine/52-9/1004521.aspx#.UW5d-qJHKGM. Stirling Council, 2009. Contaminated Land Inspection Strategy. Accessed on 17 April 2013 from: http://www.stirling.gov.uk/__documents/environmental-health/public-health/-cont- land-inspect-strategy31109.pdf. UKELA, 2013. Making the law work for a better environment: contaminated land. Accessed on 17 April 2013 from: http://www.ukela.org/rte.asp?id=35. Wolf, S. & Stanley, N., 2010. Wolf and Stanley on Environmental Law. London: Routledge. Yong, R.N. & Thomas, H.R., 2001. Geoenvironmental Engineering: Geoenvironmental Impact Management. London: Thomas Telford. Zhao, X., 2013. Developing an Appropriate Contaminated Land Regime in China: Lessons Learned from the US and UK. NY: Springer. Read More