Scotland adjusts contaminated land regime

Amendments to the contaminated land regime were proposed in a consultation by the Scottish Executive in February.1 The paper deals with changes designed to improve consistency with the EU water framework Directive. It also sets out revisions so that water pollution has to be "significant" before a site is deemed "contaminated land".

The contaminated land regime, implemented across Britain in 2000 and 2001, is based on part IIa of the Environmental Protection Act 1990, inserted by the Westminster parliament in 1995.

The original regime defines contaminated land as any land which appears to be in a condition such that:

  • Significant harm is being caused or there is a significant possibility of such harm being caused; or

  • Pollution of controlled waters is being, or is likely to be, caused.

    When implementing the regime in 2000, the Government had already decided that the 1990 Act would need amending so that land would fall under the regime only where "significant" water pollution is being, or is likely to be, caused. The Water Act 2003 provided the opportunity to make such an amendment in the case of England and Wales - although the Government has yet to bring these changes into effect (ENDS Report 357, p 49 ).

    The new consultation paper - comprising draft regulations and statutory guidance - proposes similar changes to the regime in Scotland. Legislation amending the 1990 Act is to be laid before the Scottish Parliament at the earliest opportunity.

    "The proposed amendments will mean that land causing trivial amounts of pollution of the water environment will no longer come within the aegis of the contaminated land regime," the consultation paper says.

    Some land remediation projects in Scotland have fallen foul of the regime thanks to a strict interpretation of the phrase "pollution of controlled waters" by the Scottish Environment Protection Agency. In one case, a developer faced the risk of land being determined as "contaminated" even after concluding remediation works, because of tiny levels of pollution that the site might continue to cause.

    The Executive is also taking the opportunity to remove references to "controlled waters", replacing them with the term "water environment". This will bring terminology under the contaminated land regime into line with the EU water framework Directive, much of which was transposed into Scottish law by the Water Environment and Water Services Act 2003 (ENDS Report 337, pp 35-36 ).

    Another change relates to the definitions of "pollution" and "harm". A new definition of "pollution" in relation to the water environment is to be introduced - in line with the definition under the 2003 Scottish Act, under which pollution is "the direct or indirect introduction, as a result of human activity, of substances or heat into the water environment, or any part of it, which may give rise to any harm." The definition of harm in relation to the water environment will also be aligned with that under the 2003 Act.

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