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Contaminated land: Who is responsible?

If you’ve received communications from a local authority for you or on behalf of a client about contaminated land, you may rightly feel confused and even concerned.

Contaminated land can represent a “bump in the road” to securing planning permission and protecting the sale value of land or property. However, with the right advice, management of contaminated land can be straightforward.

How is contaminated land dealt with in the UK?

Contaminated land poses potential risk to human health and the environment, making its identification and assessment essential. In the UK, contaminated land is dealt with under two frameworks: the Planning System and Part 2A of the Contaminated Land Act 1990.

Each framework plays a specific role in the mitigation of risk associated with contaminated land, and in the case of new developments, ensuring land is safe for its intended use, which we’ve outlined below.

The Planning System

The planning system is the most common route for addressing contaminated land in the UK.

Local planning authorities require developers to assess and, if necessary, remediate contamination during the development process.

This is guided by the National Planning Policy Framework (NPPF), which mandates that new developments are “suitable for use” and safe from contamination risks.

Developers must conduct land contamination assessments, often including site investigations and risk assessments, as part of their planning applications.

If necessary, remediation strategies are then implemented as a condition of planning consent, ensuring land is appropriately safe for its intended use.

Unlike Part 2A, the planning system focuses on proactive remediation tied to land development, leveraging private investment to address contamination.

Part 2A of the Environmental Protection Act 1990

Under Part 2A of the Environmental Protection Act 1990, anyone who is an “appropriate person” may be liable for the remediation of contaminated land. An “appropriate person” is any:

  • Person who causes or knowingly permits contaminating substances to be in, on or under the land in question (Class A).
  • Owner or occupier of contaminated land, but only where a Class A person cannot be found (Class B).

Where Class A persons cannot be located then responsibility may default to a Class B person, who may be the current resident or landowner.

The local authority is responsible for identifying responsible parties and takes the lead in inspecting their areas to determine whether land qualifies as “contaminated” under the Act.

The Environment Agency oversees sites with serious water pollution concerns or those involving “special sites” (e.g., certain industrial facilities or military land).

Remediation under Part 2A ensures public health and environmental risks are addressed, but it is typically used as a last resort and when land cannot be remediated via the planning system.

Part 2A Planning System
Reactive approach to existing risks. Proactive remediation during development.
Public sector-driven enforcement. Developer-led with regulatory oversight.
Focus on protecting health and water. Ensures land is suitable for new uses.

Who is responsible for contaminated land?

Who is responsible for contaminated land ultimately depends on the framework being used.

  • Local Authorities: Lead the identification and regulation of contaminated land under Part 2A and manage contamination risks through the planning system.
  • Environment Agency: Oversees cases involving serious water pollution or special sites.
  • Developers and Landowners: Responsible for investigating and remediating land during development or when identified as liable under Part 2A.

What is the legal definition of contaminated land?

Contaminated land is defined by Part IIA of the Environmental Protection Act 1990 as:

“Contaminated land” is 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, where:

  • Significant harm is being caused, or there is a significant possibility of such harm being caused.
  • Pollution of controlled waters is being, or is likely to be, caused.

The act and statutory guidance produced by the government provide further definitions and details on how local authorities must fulfil their duties in identifying and dealing with contaminated sites.

Contaminated substances can include, but are not limited to:

  • Toxic heavy metals, including arsenic, lead and mercury.
  • Asbestos.
  • Carcinogenic chemicals such as cyanide, arsenic, and radon.
  • Radioactive substances.
  • Corrosive chemicals.
  • Combustible materials that pose a risk of fire or explosion.
  • Organic substances that contain carbon and hydrogen atoms. Examples include hydrocarbons from fossil fuels and former insecticides and pesticides.

How do you know if contaminants are present?

The most effective way to check for the potential presence of contamination and the level of risk they pose is to perform a contaminated land risk assessment. To ensure delays to your project are kept to a minimum, whether this be land acquisition or undertaking a new development, choose a trusted provider that prioritises a right-first-time approach—like us here at Ashfield Solutions.

Certain types of land may be more commonly associated with contamination, such as former landfill sites, petrol stations, mining areas and industrial sites. However, it is not just the obvious culprits that are affected. Some agricultural properties can also be contaminated by poor historical waste practices and asbestos.

Ultimately, a proactive approach is needed to identify potential liabilities and ensure prompt planning approvals. . Speak to the team at Ashfield Solutions today and get your contaminated land risk assessments completed quickly and to the highest standard.

Conclusion

The UK’s dual approach to contaminated land ensures both existing risks are addressed and future developments are safe. Part 2A acts as a safety net for serious issues, while the planning system drives remediation during redevelopment, aligning environmental safety with economic progress. These complementary frameworks safeguard public health and the environment, ensuring land is fit for purpose.