Review of contaminated land policy as registers are scrapped

Environment Secretary Michael Howard caused little surprise on 24 March when he announced that the Government was abandoning its proposals to introduce registers of contaminative land uses. But the issue is to be kept alive by the formation of an official group to review the role of public authorities in controlling land pollution. The most favourable scenario is that this could bring new legal provisions to tackle contaminated land in the Bill to establish the Environment Agency later this year.

Powers to establish registers of contaminative land uses were introduced by section 143 of the Environmental Protection Act 1990. Regulations to establish the registers were to have been introduced in April 1992, but Environment Ministers pulled the plug on the initiative at the last minute. Revised proposals on the form and content of the registers were subsequently issued in July (ENDS Report 211, pp 26-27 ), but these too have failed to make it onto the statute book.

Opposition to the registers has been widespread. Property developers, chartered surveyors, insurers, bankers, many sectors of industry, development corporations and some local authorities have all argued that they would cause planning blight, diminish property values and reduce the security on loans provided by land. These consequences, they maintained, would be all the more unacceptable because land identified on the registers would only be potentially and not necessarily actually contaminated.

Last summer's revised proposals did nothing to stem the flow of objections to the Department of the Environment. The DoE's principal concession was to reduce the list of contaminative uses of land from more than 40 to eight. But an accompanying suggestion that the list could be extended in future merely encouraged the scheme's opponents to complain that this would prolong uncertainty about the status of sites not on the initial list.

The DoE has now caved in beneath the weight of these vested interests. On 24 March, Mr Howard announced that the proposals were being withdrawn.1The Government, he said, remains "determined to ensure that land contamination does not give rise to unacceptable risks to health and safety, to groundwater and the environment generally, and also to ensure that vacant urban and industrial land can be put back into good use wherever practicable. The responses to our consultation paper showed that the proposed registers would have made this objective more difficult by reducing confidence in the value of sites placed on the register, thereby exacerbating blight without giving any clear indication on how such sites could be brought back into good condition and confidence restored."

Mr Howard added that the principal criticisms of the registers had been three-fold:

  • The registers would contain some sites which were not actually contaminated, "while missing other sites that are actually contaminated by other former uses not on the prescribed list." What he omitted to say was that that prospect had been greatly enhanced by the DoE's decision to whittle down the original list of 40 or so contaminative uses to eight.

  • There was no way of removing sites from the register even if contamination had been dealt with satisfactorily.

  • When sites were found to be actually contaminated, it remained unclear "what action should be taken, what remediation measures should be carried out and by whom, which regulatory authorities should be involved, and where the liability for the cost of remediation or compensation should fall."

    The latter problems are mostly of the Government's making. It was clear as soon as section 143 was written into the 1990 Act that the registers would stir up public demand for investigations to show whether sites were actually contaminated, and for the costs of investigations and clean-up measures to be borne by the polluter or some other source rather than by innocent landowners. It was also clear that this would require a programme to identify and investigate priority sites (ENDS Report 193, pp 12-15).

    The Government, however, appeared to believe that creating the registers would solve the land contamination problem in itself, although there was some recognition by officials by the end of 1991 that a source of funds would be needed to pay for clean-up operations (ENDS Report 203, pp 3-4). Scottish Secretary Ian Lang tacitly acknowledged this in a statement on 24 March when he said that the Government now intends "to look beyond registers, with their emphasis on identifying possible problems, at possible solutions."2In February, as the registers were on their last legs, Environment Minister David Maclean promised the House of Commons that the DoE would "shortly bring forward proposals on how we see the way ahead." Proposals as such have not been forthcoming. Instead, Mr Howard announced the establishment of an inter-departmental group chaired by the DoE to have a fresh look at the issue.

    The inquiry's full terms of reference will be "to review the powers and duties of public authorities which relate to the identification, assessment and appropriate treatment or control of land that could cause pollution of the environment or harm human health, having regard to the need to minimise the costs which existing and new regulatory burdens place on the private sector; to consider the mechanisms for recovering authorities' costs in controlling or remedying pollution of such land sufficient to ensure its safety for health and the environment, and its return to beneficial use where practicable; to consider the implications of these for the role of the Environment Agency; to report initially on any statutory changes needed in the short term and on the scope of any longer term studies that should be put in hand; and to undertake and report on these studies."

    The first opportunity to tackle these issues in law will be provided by the Bill to establish the Environment Agency which is due to enter Parliament this autumn. Indeed, the reference to the Agency in Mr Howard's statement will have encouraged speculation that the Bill may be used as a vehicle to refine the Agency's component bodies' powers in respect of land contamination, and to address the thorny issues of cost recovery and liability.

    The regulatory authorities' powers to deal with contaminated land are certainly not consistent at present. In addition to the statutory nuisance powers of local authorities, the newest provisions are in:

  • Section 27 of the 1990 Act. This enables HM Inspectorate of Pollution and its Scottish counterparts to take reasonable steps to remedy harm to the environment and to recover their costs from the person responsible. However, such action can only be taken if the polluter has been convicted of failing to comply with the terms of an integrated pollution control authorisation or an enforcement or prohibition notice, and also requires the Secretary of State's consent.

  • Section 61 of the 1990 Act imposes a duty on waste regulation authorities (WRAs) periodically to inspect land in their area with a view to identifying sites which may pose a health or environmental hazard by virtue of releases of noxious gases or liquids from deposits of controlled waste.

    Where such a threat is identified, the WRA may carry out reasonable works to avoid it. It may also recover all or part of its costs from the present owner of the land, but must have regard to any hardship which cost recovery might cause him. Cost recovery is barred, however, where the WRA has accepted the surrender of a waste management licence.

  • Section 161 of the Water Resources Act 1991 entitles the National Rivers Authority (NRA) to carry out anti-pollution works in cases where polluting matter threatens to enter, or is or was present in, any controlled waters. In the first case it may carry out preventive works, while in the other two it may remove the pollutants, remedy or mitigate the pollution, and, as far as "reasonably practicable", restore the waters to their previous state. The NRA can also seek to recover costs reasonably incurred in such works from whoever caused or knowingly permitted the pollution or threat of pollution.

  • Section 162 of the same Act also entitles the NRA to carry out works on land to ensure that water in any "relevant waterworks" - which includes mains, springs, wells, boreholes and service reservoirs - is "not polluted or otherwise contaminated." No cost-recovery powers are provided in this case.

    These provisions are clearly not consistent, and one of the review group's tasks will almost certainly be to recommend a more coherent regime - possibly for inclusion in the forthcoming Bill.

    A serious drawback of the existing powers is that the authorities have often been unable to secure the clean-up of polluting sites because the person responsible for the contamination has not been readily identifiable, or because the contamination was caused many years ago by a previous landowner or occupier, or because the present landowner is clearly unable to pay. These factors have discouraged the NRA from acting in a number of recent water pollution cases.

    These problems are likely to focus the review group's attention on other sources of finance in cases where the polluter cannot be identified or is unable to pay. Probably the leading candidate is the landfill levy on which a DoE study was published in February (ENDS Report 217, pp 12-13 ).

    The study recommended that the WRAs, and after them the Agency, should collect the levy - a conclusion which doubtless reflected the DoE's desire to get its hands on a large pot of money to pay for environmental projects. At £10 per tonne of household and commercial waste alone, the levy would raise £1.3 billion per year - a sum interesting enough for the Treasury to take a close interest in the review group's proceedings. Indeed, a conflict between the DoE and the Treasury on where the revenues should go could well be a central theme of the group's deliberations.

    It also appears unavoidable that the group will have to address how Britain's existing civil liability regime should be clarified. Mr Maclean confirmed in a Commons statement on 24 February that the Government is "looking at the liability question."

    Another thorny issue concerns information for land transactions. A key principle behind the registers was that they would enhance the capacity of the purchaser to inform himself of any possibility of contamination. Hence, the Government argued, no change to the "buyer beware" principle was needed. Now that the registers have been abandoned, the Government will be under pressure to review its resistance to legal changes in this area. However, Mr Howard's statement made no explicit reference to this problem.

    An alternative to the registers put forward by the Royal Institute of Chartered Surveyors (RICS) which attracted a good deal of publicity in the run-up to the Government's decision appears to be a non-starter in failing to address this point.

    The RICS' proposal was that "land quality statements" setting out what was known about the contamination status of a site and the likely nature of remedial works required should accompany certain types of planning applications.

    The proposal does not appear to be much of an advance on what developers should have been doing in compliance with a 1987 DoE circular on the redevelopment of contaminated land. This urged planning authorities to take into account a site's possible contamination history when considering planning applications, and in appropriate cases to oblige developers to carry out site investigations and any necessary remedial works either before a planning decision was taken or as a condition of planning permission (ENDS Report 151, p 19).

    Two of the major flaws in the RICS' proposals are that they do not address how buyers should be protected in most land transactions or assist in the identification of contaminated - and possibly actively polluting - land until it comes up for redevelopment. The Government had hoped that the registers would perform both these functions, but now that they have been withdrawn a number of measures are likely to be needed in their place unless the objectives of its contaminated land policy are to be severely trimmed back.

    It may prove, of course, that the establishment of the review group was simply a case of the standard Whitehall practice of establishing a committee to ponder at length about a difficult problem in the hope that it will eventually go away. Environmentalists may therefore have to campaign vigorously if they are to keep the issue on the agenda.

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