Uncertain prospect for contaminated land registers

Suspicions that the Government was getting cold feet about opening up public registers of potentially contaminated land were confirmed on 10 March when Environment Minister David Trippier announced that the regulations to establish the registers will be delayed. There must now be some doubt whether the registers will ever see the light of day.

Regulations to place a duty on local authorities to compile public registers of "contaminative" uses of land had been expected to be brought into force on 1 April, with the registers themselves being opened to the public 12 months thereafter. But early this year it became clear that Ministers had been alarmed by an intense lobbying effort by property developers, banks and related interest groups, who claimed that the initiative would cause widespread blight and damage property values (ENDS Report 205, pp 24-5 ).

Announcing the decision to delay the regulations, Mr Trippier confirmed that the Government had been "concerned about suggestions that land values would be unfairly blighted because of the perception of the registers."

Sites were to have been entered on the registers on the basis of historical and current land use information. The entries would merely have drawn attention to the possibility that they had been polluted by specified "contaminative" uses, providing a basis for further investigations and transparency in land transactions. But property developers generally argued that what was needed was a register of actual contamination.

According to Mr Trippier, the delay will enable further consideration to be given to the detail of the proposals, and allow further consultation to be carried out.

In principle, the Minister's suggestion that what is needed is a review of the detail of the proposals does not rule out the possibility that the Government will eventually proceed with the regulations. Details which could be amended include, for example, the list of contaminative uses, the nature of the information provided in register entries, provision for it to be made clear when registered sites had been cleaned up, and opportunities for landowners to appeal against having their sites entered on the registers in appropriate circumstances.

However, it is far from clear that fine-tuning the regulations in these ways would overcome the strong opposition to the concept of a register of potential, as distinct from actual, contamination. Mr Trippier's announcement was also notable in lacking a timetable for completion of the promised review and consultations.

On the other hand, the Government remains under pressure not to let the matter rest. The registers were a response to reports published within the past two years by the Law Commission and the House of Commons Environment Committee which recommended forcefully that new arrangements were needed to ensure that purchasers of land were properly informed about any environmental liabilities they might be acquiring. The Government has no other proposals in hand to meet these demands.

It has been evident for some time that proceeding with the registers alone would cause problems for the Government. Supporting policy initiatives - including clear procedures and funding for investigations of sites entered on the registers, and funding and liability mechanisms to ensure that contaminated sites were cleaned up as necessary - are clearly needed to minimise blight and public alarm. But serious policy development in these areas has only just begun at the Department of the Environment (DoE).

In December, officials revealed that the DoE has begun looking into a system under which civil liability for land contamination would be strengthened and/or cash for clean-up measures found from a fund financed by the private sector (ENDS Report 203, pp 3-4). The DoE has also just let a contract to consultants M J Carter Associates to develop procedures for identifying rapidly those sites entered on registers which need investigation or remedial action, and those which are unlikely to cause unacceptable environmental impacts.

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