Land Pollution

We are a small, densely populated country with a long industrial heritage. In recent years, much
heavy industry has closed. It has sometimes left behind a legacy of pollution. In 2005 it was
estimated that up to 325,000 sites might be polluted as a result of former uses . As many as
33,500 sites could require some form of clean up. It is also possible that pollution could migrate
from such contaminated sites to neighbouring land. For example, poorly engineered waste
landfill sites might generate methane gas which can travel underground. It is even possible that
some former industrial sites have been developed without proper attention being given to
polluting materials that remain on the site. There are legal measures to deal with all of these
problems under Part 2A of the Environmental Protection Act 1990 under the ‘contaminated land
regime’. These pages explain who bears the responsibility for land based pollution and how they
can be made to clean it up.

What Is Contaminated Land?

It is possible to order the clean-up of land which is considered 'contaminated. Land is
contaminated when there are polluting substances in, on or under the land. This may mean that
the substances have been left in buildings or on land or that the substances are buried in the
ground. It doesn't really matter what these substances are providing they are giving rise to
significant harm or water pollution.

Every local council has a duty under Part 2A of the Environmental Protection Act (EPA) 1990 to
devise a strategy to identify all contaminated sites within their area. Where contamination is
found to be significant, the Council must actively take steps to remove or reduce the risk to
people and the environment. If reports are made about problem sites then your local authority has
a duty to investigate. If you contact them saying that you are worried about harmful substances
on land in your local area, they should take your complaint seriously and check whether
significant harm or water pollution is resulting from the presence of those substances.
Types of Harm
If a source of pollution in terms of substances left on the land have a pathway through which the
pollution can reach a target then we call this a pollution linkage. Examples of pollution linkages
would include:

• Asbestos from a derelict building travelling through the air to affect people
nearby.
• Spilt oil travelling through the drainage system to a nearby river.
• Chemicals in leaking drums travelling down through the soil into an
underground water supply.
• Air emissions from a factory being carried by the wind to a nearby nature
reserve which is being harmed as a result.

These are just examples. A pollution linkage may lead to the land being designated as a
contaminated site in four situations:

• Significant harm, including harm attributable to radioactivity, is being caused.

• There is a significant possibility of this type of significant harm being caused.
• Pollution of controlled waters is being caused.
• Pollution of controlled waters is likely to be caused.

Some help is needed with the wording given above:

Significant harm in relation to human beings includes serious injury, death, disease, genetic
mutation, birth defects, cancer or impairment of reproductive functions and mental dysfunctions
because of the effects of a pollutant on the body.

Controlled waters means any coastal waters including territorial waters seawards for three miles,
inland freshwaters, including waters in lakes or ponds, rivers or other watercourses and waters in
underground strata (known as groundwaters). You can get more information about controlled
waters from our section on water pollution offences.

When we are looking at what might be harmed, we are interested not only in humans but also
buildings, protected habitats, and crops or farmed animals. Wherever these are facing significant
harm as a result of land based pollution, it might be necessary to designate the site as
contaminated.
When A Site Is Contaminated
Where there is a pollution linkage found on a site that is causing or threatening significant harm
or water pollution, then that site ought to be designated as contaminated land. Once a
determination has been made that land is "contaminated land" the local authority is required to
inform various people about the determination including:

• the owner of the land

• the occupier of the land
• each person who appears to be an "appropriate person"
• the Environment Agency

Providing it is possible to trace the appropriate persons - those responsible for the presence of
substances on the land - then these parties will be made to clean up. If necessary, a notice (called
a remediation notice) will be served on them requiring them to do so. A formal notice is not
always necessary, however, as agreement may be reached to clean up the land by voluntary
action.

The authorities have to wait for at least three months following the designation of the site before
they can serve a remediation notice. During this time consultation and negotiation will take place
and will focus on is needed to achieve the remediation of the site and on what particular
solutions would eliminate the harm caused by the site.

If it happened that the appropriate parties refused to clean up, then in addition to any criminal
proceedings against them, the authorities can clean up the land themselves and take action to
recover the costs incurred.
Who is Responsible?
The law labels the responsible parties as "appropriate persons". These are divided into two
classes of people. The first group, Class A persons, are those who caused or knowingly permitted
the polluting substances to be in, on or under the land.

The word "cause" here just means that the person is responsible for the substances being on the
land. It doesn't imply that they have done anything wrong. For example, in the past we may have
engaged in industrial practices, such as land-filling waste within the vicinity of an industrial
facility like a mine or paper mill, which we would not consider appropriate today. Similarly
when we decommissioned industrial facilities such as a gas or steel works, we may have left
contaminants on the site because that was not considered dangerous at the time. Nonetheless, the
law now considers that the polluter should pay and that the appropriate persons who ran such
enterprises should now clean up any remaining contamination.

The phrase "knowingly permit" suggests that certain persons may have known about polluting
substances on the site but failed to do anything to remove these; instead they permitted these to
remain. These persons will be considered just as responsible as those who caused the substances
to be there. The terms "cause" and "knowingly permit" are also used in water pollution offences.
Click here for more information.

The class A group is built up, therefore, of the parties who caused or knowingly permitted the
substances to be on the land. There may be a number of such persons and they will bear
responsibility between themselves as directed in any notice served. It might be the case,
however, that nobody in this group can be found. This may be because the substances have been
abandoned on land by persons unknown or because the substances have been there for many
years and the responsible party cannot be traced or no longer exists - as when a company is
wound up.

If no Class A person can be found then responsibility will pass to any Class B persons. This
group is made up of the current owners or occupiers of the contaminated site. Owners or
occupiers only become "appropriate persons" where no Class A person can be found. These
owners and occupiers have neither caused nor permitted the pollution to be present on the land,
but the law takes the view that someone should be responsible for the site. The worry here is that
the owners or occupiers might be simply be living in housing built on former industrial land or
small companies on an industrial estate which used have some other, more polluting use.
However, the authorities have the power to clean up land themselves and they must consider the
hardship that might be caused in seeking to recover the costs of clean up
Land Pollution and the Law
Because the law makes appropriate persons clean up pollution on land where it is causing
significant harm or water pollution, where former industrial land changes hands or is re-
developed, it is quite common for the question of pollution to be addressed. The law assists with
this by offering incentives to deal with the problem. For example:

• If one appropriate person offers money to another to pay for the clean-up of the land, then
assuming that the money is sufficient to deal with the problem then the person paying the
money over will escape any liability in the future
• If a company selling land informs the person buying it of the presence of the polluting
substances and/or allows these to be inspected then that company will be free from future
liability for cleaning up the land.

By using these sorts of incentives the law is trying to get parties to consider how to deal with
historic pollution especially where land is changing hands. In addition to this, the planning
system makes provision for ensuring that land based pollution is addressed in the course of land
re-development.

How the Planning System Helps

Where an application for planning permission is to be made, the owners and developers should
establish whether there are any potentially harmful materials on their sites. It is the council's duty
to make sure that those developing land carry out the necessary investigations and come forward
with proposals for cleaning up any contamination in a responsible and effective manner.

The Government issues planning advice on how this should be done. This is set out in Planning
Policy Statement 23 (PPS 23) on Planning and Pollution Control (2005). This demands that
developers take account of the quality of land, air or water in the course of development and
consider the potential impacts arising from development, including those that might impact upon
on human health.

The Policy Statement suggests that where pollution issues are likely to arise, developers should
hold informal, discussions with the local authority prior to the development and, where
necessary, speak to the environmental health department of the local authority and other
authorities (such as the Environment Agency) and stakeholders with a legitimate interest in the
safe re-development of the land.

The local authority should ensure that appropriate policies are developed to enable the risks to be
identified and assessed so that the problems of pollution can be overcome and the land can be
brought back into beneficial use. Investigating and assessing the risk is crucial because it allows
planning applications to be determined on the basis of adequate information. Visit our Planning
and Building Works section for further information on the planning system.
Cleaning Up
The most important requirement is that the land no longer poses a risk to health and environment
once it is cleaned up. This does not necessarily mean that all contaminants are removed from the
site or that the site is cleaned up completely. The standard required by law is that it should be
suitable for the use to which the land is put. This means that if land is to be used for housing with
gardens then we would expect the contaminants to be removed (see the Bawtry case) but if the
development comprises blocks of flats with no gardens or retail outlets with hard standing car
parks, we might expect a lower level of expenditure on clean up. If the site remains in industrial
usage this may be lower still.

It is not unusual to have new homes built on 'brown' land that has been subject to earlier
development. The Government has set a target of 60 percent of all new housing to be built on
brown land. In fact the number of new homes built on previously developed land stood at 73
percent in 2005 compared with 62 percent in 2000 - an increase of 18 percent. So it is not
uncommon for housing to be placed on former industrial land. If buying a new home on such a
site, the planning system ought to ensure that it is safe and has been adequately developed with
proper attention paid to any environmental pollution. Oddly enough you are more likely to suffer
problems with older housing built before we were so concerned about the health impacts of
pollution

Local Authorities Register

Local authorities should maintain a Register, available for inspection by the public, containing
details of sites designated as contaminated land together with any notices served and details of
any designated land that has been cleaned up. You may find that these registers contain relatively
little information since the level of designations of contaminated land has not been that high in
many local authorities. If you buy a house, then during the course of the conveyancing work the
searches conducted by your solicitor will check against this registered information.

Because the checks are only against the registered information they will only tell you if the land
that you are buying has ever been found to be contaminated. The search will not check if the land
has been used at some earlier stage of its history for industrial use. It is possible to check this,
however, by requesting a specific commercial search and it is also possible to insure against this
risk.
Case Study: Bawtry Gas Works
There are a large number of sites formerly used for the production of town gas. One such site is
in Bawtry, Yorkshire. It belonged to the Bawtry and District Gas Company (from 1912 to 1931,
becoming operational in about 1915). It was transferred to South Yorkshire and Derbyshire Gas
Company (in 1931). After the Second World War it was transferred again as part of a
nationalisation programme under the Gas Act 1948. It passed to East Midlands Gas Board but
production of gas at the site ceased at some point prior to 1952. After that it was used as a depot.
As with many former gas works in the 1960s it became redundant with the shift to natural gas
and was sold, in 1965, to a firm of house builders.

Because the production of town gas involved burning coal in an oxygen starved environment,
this process produced tars which were heavily contaminated, especially with deposits of heavy
metals. A small housing estate was soon built on the site by the developer but the pits containing
tars and certain other underground storage tanks were never removed. It was only in 2001 when
a resident of that housing estate was digging in the garden that a tar pit was discovered. This led
to the determination that the land on which 11 houses (all with gardens) stood constituted
contaminated land.

Where land contamination causes or may cause water pollution, the site may be labelled a
'special site' so that enforcement of the Act passes from the local authority to the Environment
Agency. This was the case in Bawtry. Although tar pits in gardens presented an obvious threat of
significant harm to human health, since coal tar is a carcinogen (can cause cancer) in this
instance the tar pits were leaking into underground water. A major aquifer (water source)
underneath the site was used for water abstraction, and the contamination from the tar pits was
causing pollution of this groundwater.

The determination of contaminated land can lead to the service of a remediation notice requiring
appropriate persons to clean up the site. However, here there were no appropriate persons.
Transco, the modern equivalent of the East Midlands Gas Board only came into existence as a
private company in 1986 when Margaret Thatcher privatised the old gas boards. Transco had
never occupied the site and the company that built the houses had been wound up some years
before. There were no Class A appropriate persons.

Nonetheless because people were living in the houses and because of the water pollution, clean
up was a matter of urgency. The Environment Agency could have tried to make the house
owners pay as Class B appropriate persons, but the cost for the clean-up work for the eleven
properties was £695,782, averaging £63,253 per property. The Agency decided this would cause
hardship to the residents and that it would be unfair to make them pay.

The clean-up was funded at public expense. There was a fuller site survey to locate any
remaining underground structures. All structures were removed together with any contaminated
materials. This included all contaminated soils to a depth of at least 0.6m, and a separator was
installed at 0.6m below ground to prevent contact by residents with residual contamination at any
lower depth. The soil dug out was replaced with new fill of a type suitable for domestic gardens
and there was full restoration of levels of the land, drainage, boundaries and garden/domestic
infrastructure.