Jeffrey Green Russell

All Change for the Contaminated Land Regime with Effect from 4 August 2006

With effect from 4 August 2006:

  • The existing Contaminated Land Regime (the "Regime") will be extended (subject to certain modifications) to cover radioactive contamination.

  • Appeals against contaminated land remediation notices, whether served by a local authority or the Environment Agency, will be heard by the Secretary of State pursuant to the Clean Neighbourhoods and Environment Act 2005.

As a result of these changes:

  • The Contaminated Land Regulations 2000 (the "CLA Regulations 2000") will be repealed and replaced by a new set of regulations, the Contaminated Land (England) Regulations 2006 (the "CLA Regulations 2006").

  • Part IIA of the Environmental Protection Act 1990 (the "EPA 1990") is modified by the CLA Regulations 2006 in certain respects and in relation to "harm", so far as attributable to any radioactivity possessed by any substance, Part IIA EPA 1990 is both extended to cover radioactivity but applies with the modifications to Part IIA set out in The Radioactive Contaminated Land (Modification of Enactments) (England) Regulations 2006 (the "RCL Regulations 2006").

  • The amendments relating to appeals contained in the Clean Neighbourhoods and Environment Act 2005 will be brought into force on 4 August 2006 by virtue of the Clean Neighbourhoods and Environment Act 2005 (Commencement No.2) (England) Order 2006.

  • The existing statutory guidance has been revised.

  • The changes to the Regime apply to England only and will come into force on 4 August 2006. Separate legislation will be enacted in respect of Wales, Scotland and Northern Ireland.

Principal Differences

The principal differences between the existing Regime and the new Regime effective 4 August 2006, which includes provision for Radioactive Contaminated Land are set out below.

  • Radioactive contaminated land

Land will only qualify as radioactive contaminated land if harm is being caused, or there is a significant possibility of harm being caused, to human beings. Under the RCL Regulations 2006 "Harm" is defined as "lasting exposure to any person resulting from the after-effects of radiological emergency, practice or past work activity." Harm does not apply in respect of the wider environment or water pollution.

Contamination is caused by radioactivity possessed by any substance. "Substance" means, whether in solid, liquid, gas or vapour form, any substance which contains radionuclides which have resulted from the after-effects of a radiological emergency or which are or have been processed as part of a past practice or past work activity, but shall not include radon gas or certain other specified radionuclides listed in the RCL Regulations 2006.

  • Duty to inspect

A local authority ("LA") is responsible for inspecting its area in order to identify any radioactive contaminated land, but the requirement to inspect only applies where the LA has reasonable grounds for believing the land is contaminated by radioactivity.

  • Special sites

Radioactive contaminated land must be designated as a "special site" and, as is the case under the existing Regime in respect of "special sites", the Environment Agency ("EA") becomes the relevant enforcing authority in place of the LA. (To serve as a reminder, under the existing Regime, "special sites" include those sites where, for example, land contamination causes or may cause water pollution or where land has been used for the purification (including refining) of crude petroleum or of oil extracted from petroleum.)

  • Mixed Sites

Where there is a mixture of radioactive and non-radioactive contamination on a site, the EA will also becomes the relevant enforcing authority in place of the LA.

  • Remediation

When deciding whether remediation of a radioactive contaminated site is necessary and, if so, what remediation would be reasonable, the EA will be required to consider:

(a) the cost which is likely to be involved; and

(b) the seriousness of the harm in question.

The EA will, as part of this process, consider whether the benefit of carrying out remediation justifies the harm which this may be cause and how the remediation can be optimised so that the net benefit is maximised.

The EA will be under a duty to carry out remediation itself in certain circumstances where an appropriate person, liable for the remediation, cannot be identified.

  • Nuclear sites

The Radioactive Contaminated Land Regime will not apply to nuclear licensed sites in circumstances where the Health and Safety Executive has the power to deal with radioactive contamination under the Nuclear Installations Act 1965.

  • Appeals under the Non-radioactive and Radioactive Contaminated Land Regimes

Under the existing Regime, appeals against service of a remediation notice by a LA rest with the magistrates' court and appeals against those served by the EA rest with the Secretary of State.

Section 104 and Part 10 of Schedule 5 of the Clean Neighbourhoods and Environment Act 2005 (CNEA 2005) amends section 78L of the EPA 1990 so that all appeals against a remediation notice (regardless of whether this is served by a LA or the EA) will be heard by the Secretary of State.

However, where an offence is committed under either the Non-radioactive and Radioactive Contaminated Land Regimes, for example, where there is a failure to comply with a remediation notice, prosecutions will continue to be heard by the magistrates' courts or, where appropriate, the Crown Court.