Contaminated Land Regulations

In April 2000, the Contaminated Land regime was implemented, which included the Part 2A of the Environmental Protection Act 1990 and all associated regulations and statutory guidance covering environmental contamination. The regime incorporates all existing and future contamination and has also been broadened to include the effects of radioactivity.

The new Act encompasses all land, whether that land is residential, commercial, industrial or agricultural. It also pertains to areas of 'controlled waters, including ground, surface and coastal areas across commercial sites'.

The remit of the Act encompasses anyone with a vested interest in land, including people developing on land, property owners, those who occupy land or institutions lending against environmental spaces. While the Act is predominantly focused upon those individuals or firms who deliberately permit land to be contaminated, the ruling also has a significant impact upon unwitting owners or occupiers who have responsibility for land which is subsequently found to contravene basic laws regarding environmental and public safety.

How Land May Become Contaminated

Land can become contaminated due to a number of factors, including commercial activity, industrial development and other activities which may have a negative effect if substances aren’t managed and controlled effectively. There is a poor track record for contaminated land across both England and Wales as a result of soil contaminants and domestic pollution. While the contamination is usually relatively insignificant, there are occasions when levels are high enough to pose a risk for the environment, wildlife or inhabitants living in close proximity to the contamination.

Most soil does have a certain degree of contamination, and this is not usually significant enough to warrant management. However, certain key areas, including landfill sites or areas of industrial waste and development, may have levels high enough to pose a threat to the environment.

In 2012, the Contaminated Land Statutory Guidance Act was passed in order to replace the legislation on contaminated land which was previously encompassed by the 1990 Environmental Protection Act. The Guidance establishes a best-practice approach to minimising risks associated with areas of contamination while also including the need to assess land sites which are scheduled for redevelopment.

If a firm or developer in England or Wales is planning to develop on land, they could find themselves being liable for significant financial penalties if they are not covered through insurance against potential fines. It’s important to obtain advice prior to planning any development and to consider what sort of insurance policies are available in order to cover any unforeseen costs resulting from the need to mitigate risks on land which is currently contaminated or discovered to be so during redevelopment activities.

Regulated authorities are obliged to investigate any areas of land which are at risk of contaminant linkage, which occurs through the presence of a receptor, a pathway and the contaminant itself. Developers may be faced with costs for putting in measures to eliminate or contain contamination which they may not have factored into their initial cost-analysis and forecasting. If a Local Authority suspects that there is land contamination in any area being considered for development, they have the power to issue a notice of remediation, which requires the proposed developer to undertake at times costly actions to limit environmental risk and address the contamination in full prior to continuing their proposed activity.

The good news is that developers, landlords or other parties at risk of facing additional costs to rectify land contamination are able to purchase indemnity against such incidents happening prior to considering industrial or commercial development. Insurance provides a safeguard against additional unforeseen liabilities across England and Wales, ensuring that a development is not halted as a result of contaminants being discovered in the proposed area of development.

Comprehensive Contaminated Land Insurance

There are a number of reputable firms offering comprehensive insurance against land contamination, which will cover the costs of remediation and ensure that development plans can proceed following activities to minimise the risk and address areas of pollution and contamination so that the environment is safeguarded. However, in all cases it is better to have any land checked (especially for historical use) by using the services of an Environmental Consultant before any land searches, conveyancing / purchase takes place, as hopefully any solicitors involved would point out.

The Hidden Risks of Contaminated Land for Local Residents For people living in or around contaminated land, there can be significant health issues which make it important to act ethically to reduce harm and work to reduce or eliminate any associated impact on quality of life for both people and wildlife. For example, contaminated land may be hazardous as a result of residents inhaling various contaminants presented in the form of gas or dust and even through any food produce cultivated on the affected land sites.

In addition, developments erected on land which is contaminated will occasionally suffer from accelerated wear, tear and damage, meaning that the stability of structures could be compromised through the poor standards of soil upon which they are built. Leaching of hazardous substances can pollute any groundwater or rivers nearby, and corrosive contaminants may pose risks of fire, explosion or other ill-effects.

As a result, it’s important to ensure that any firm or developer looking to use an area of land seeks out effective indemnity against potential contamination and acts ethically to address any issues and maintain the safety and stability of the environment.

For more information on the service that Argyll Environmental provides, please see our case studies and if you have any questions or need more information please do contact us, we’ll be pleased to help.

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