Contaminated Land Inspection Strategy 2019-2024

Stockton Borough Council is mindful that the Part 2A regime should only be used where no appropriate alternative solution exists and that other legislative regimes may provide a means of dealing with land contamination issues.

5.1 Voluntary Action

Stockton Borough Council aims to encourage owners to deal with contamination by voluntary action to minimise unnecessary burdens on the taxpayer, businesses and individuals and where appropriate will encourage problematic land to be dealt with as part of wider regeneration work.

5.2 The Planning Regime

Contamination is a material consideration under the Town and Country Planning Act 1990 and the planning regime remains the primary mechanism for dealing with contaminated land.  In accordance with the National Planning Policy Framework 2012, local planning authorities have to consider the implications of contamination when developing local plans and when considering applications for proposed developments.

The planning regime addresses the risks in relation to future use of land and where a site is affected by contamination or land stability issues, responsibility for securing a safe development rests with the developer and / or landowner.

Planning policies and decisions should ensure that a site is suitable for its new use and that after remediation, as a minimum, land should not be capable of being determined as contaminated land under Part 2A of the Environmental Protection Act 1990.

Where necessary, Stockton Borough Council will use conditional approval on planning consents that requires the developer and / or landowner to follow a staged process of risk assessment to demonstrate that contamination has been effectively considered and dealt with in accordance with legislation, current guidance and good practice to demonstrate that the development is suitable for its new intended use.

5.3 Building Regulations

The Building Regulations 2010 Part C, C1.(2) and approved Document C, Site preparation and resistance to contaminants and moisture (2004 edition, incorporating 2010 and 2013 amendments), contain specific requirements regarding contamination and landfill gas issues.  These require measures to be taken to protect new buildings, and their future occupants, from the effects of contamination, including hazardous ground gases.

5.4 Pollution of Controlled Waters

The Water Resources Act 1991 provides the Environment Agency with powers to take action to prevent or remedy the pollution of controlled waters.  The Act is particularly useful in cases where there is historic pollution of groundwater, but where the Part 2A regime cannot be applied, for example, where pollutants are entirely contained within the relevant body of groundwater or where the source site cannot be identified.

5.5 Environmental Permits and Waste Management

The regulation and operation of installations under Local Authority Integrated Pollution Prevention Control are legislated under The Environmental Permitting (England and Wales) Regulations 2016 and The Industrial Emissions Directive 2010/75/EU of the European Parliament and the Council on Industrial Emissions, and  makes provisions for dealing with pollutant emissions and land contamination resulting from the breach of an environmental permit. 

Where an activity involves the use, production or release of relevant hazardous substances, having regard to the possibility of soil and groundwater contamination, the Local Authority shall require a baseline report be undertaken in accordance with Article 22 (1) of Directive 2010/35/EC.

Local Authority environmental permit applications must include a site report (non-risk based) describing in particular the baseline condition of the site of the installation / mobile plant.  This includes identifying any substance, on or under the land which may constitute a pollution risk.  On surrender of the permit, the operator must be able to demonstrate that no deterioration of the baseline condition has occurred as a result of the permitted activities, and may be required to restore the land and groundwater to its original state.

Environmental Permits issued by the Environment Agency are subject to the same requirements.

An enforcing authority acting under Part 2A cannot serve a remediation notice in any case where the contamination results from an illegal deposit of controlled waste. Instead, the Environment Agency and the waste disposal authority have powers under section 59 of the Environmental Protection Act 1990 to remove the waste and to deal with any contamination caused by it being present.

5.6 Environmental Damage Regulations 2016

The Environmental Damage (Prevention and Remediation) Regulations 2016 provide additional enforcement powers for the prevention and regulation of land contamination. This legislation enables an expeditious reactive resolution to land contamination caused for instance by pollution incidents, as the focus of Part 2A is typically historic contamination.

The regulations only apply to damage which has taken place after 1 March 2009 and are usually applied to allow a rapid reactive resolution to land contamination caused by a pollution incident.

These regulations define environmental damage as damage to:

1. protected species or natural habitats, or a site of special scientific interest, or
2. surface water or groundwater with a deterioration in the water's status, or
3. contamination of land that results in a significant risk of adverse effects on human health.

The Environment Agency, Natural England, Local Authorities and the Secretary of State are the enforcing authorities responsible for administering and enforcing the regulations in England and Wales, depending on the type of damage involved.  The enforcing authority must establish whether damage is 'environmental damage' and identify a responsible operator in order to serve a remediation notice taking account of any measures proposed by the operator.