Contaminated Land Inspection Strategy 2019-2024

England has a considerable industrial heritage; however a legacy of historic industrial enterprise and waste disposal is polluted land that often needs skilled and methodical recovery and remedial work to bring it back into everyday use.  The Government's policy on dealing with this legacy is through the Contaminated Land regime under Part 2A of the Environmental Protection Act 1990, with the overarching objectives of the regime being:

• to identify and remove unacceptable risks to human health and the environment
• to seek to ensure that contaminated land is made suitable for its current use
• to ensure that the burdens faced by individuals, companies and society as a whole are proportionate, manageable and compatible with the principles of sustainable development

In developing this Strategy Stockton Borough Council has responded to the Contaminated Land Regime under Part 2A of the Environmental Protection Act 1990, enacted by Section 57 of the Environment Act 1995, which placed new responsibilities on all local authorities to identify and assess the risk to human health, controlled waters, ecological systems and the environment.

This Strategy document sets out Stockton Borough Council's proposals for the identification, assessment and remediation of contaminated land within the Borough of Stockton on Tees. This is the 5^th Review of the Strategy and it replaces the previous Strategies published in 2014, 2009, 2003 and 2001.

1.1   Legislative Overview

Part 2A of the Environmental Protection Act 1990 set up a system for the regulation of contaminated land in England and Wales.  The regime provides a framework for the identification and remediation of contaminated land.

"Contaminated land" is land that poses an unacceptable risk to human health or the environment through its current use, including, likely future use which would not require a new or amended grant of planning permission, temporary use from time to time within the bounds of current planning permission, likely informal use and agricultural land where crops or animals are habitually reared.

Only land where unacceptable risks are clearly identified will be considered as meeting the Part 2A definition of contaminated land.

Stockton-on-Tees Borough Council assumes all the land within the Borough is not contaminated land under Part 2A of the Environmental Protection Act unless there is reason to consider otherwise in accordance with the outcome of detailed risk assessments.

1.2 Definition of Contaminated Land and Harm

Section 78A (2) of Part 2A of the Environmental Protection Act 1990 defines contaminated land as:

any land which appears to the local authority, in whose area it is situated, to be in such a condition, by reason of substances in, on or under the land that:

• significant harm is being caused or there is a significant possibility of such harm being caused, or -
• significant pollution of controlled waters is being caused, or there is a significant possibility of such pollution being caused.

The following types of pollution should be considered to constitute significant pollution of controlled waters:

• pollution equivalent to "environmental damage" to surface water or groundwater as defined by The Environmental Damage (Prevention and Remediation) Regulations 2009, but which cannot be dealt with under those Regulations.
• inputs resulting in deterioration of the quality of water abstracted, or intended to be used in the future, for human consumption such that additional treatment would be required to enable that use.
• a breach of a statutory surface water Environment Quality Standard, either directly or via a groundwater pathway.
• input of a substance into groundwater resulting in a significant and sustained upward trend in concentration of contaminants as defined in the Groundwater Directive (Article 2(3), 2006/118/EC ).

Section 78A (4) of Part 2A of the Environmental Protection Act 1990 defines 'Harm' to include "harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property."

Conditions for determining whether significant harm is being caused would be assessed according to section 2.3 which outlines the strategy for assessing the "risk" of harm. Having assessed the potential harm being caused using the scientific evidence available, the local authority should be satisfied, that on the balance of probabilities, that significant harm is being caused (i.e. it is more likely than not) by a particular contaminant.

The definition of harm has been updated in the statutory guidance (Defra, 2012) to be in line with the Water Act 2003 on controlled waters, namely, serious impacts on health; serious injury; birth defects; and impairment of reproductive functions. When deciding whether or not a particular form of harm is significant harm, Environmental Health will consider the seriousness and scale of the harm, and the impact on the health and quality of life of the person(s) impacted.

Significant pollution is said to be caused if substances are entering controlled waters or substances which have entered controlled waters and are likely to do so again. The term "pollution" of controlled waters means the "entry into controlled waters of any poisonous, noxious or polluting matter or any solid waste matter."  [S.78A (9) of Part 2A]

"Controlled waters" include estuaries (or transitional waters) and rivers, lakes, ponds and ground water. In relation to England, has the same meaning as in Part 3 of the Water Resources Act 1991 (territorial waters, coastal waters, inland freshwaters and groundwater's). This includes water that is above the saturation zone but not water that is in the underground strata.

1.3   Roles and Responsibilities under Part 2A

Local Authorities have been given the primary regulatory role under S.78B (1) Part 2A of the Environmental Protection Act 1990 for determining whether any land within their Borough is contaminated and for deciding whether any such land should be designated as a special site. In dealing with contaminated land the Environmental Health Department has regulatory remit for investigating statutory nuisance under Part 2A of the Environmental Protection Act 1990 and is a Planning Consultee under the Planning Regime.

If Stockton Borough Council identifies land which it considers would be likely to meet one or more of the descriptions of a special site set out in the Contaminated Land (England) Regulations 2006, further advice may be sought from an external body, such as the Environment Agency, regarding the risk to controlled waters. The Agency may carry out an intrusive inspection on behalf of the Local Authority, however where this is undertaken, the inspection duty and the decision as to whether land is contaminated land, remain the sole responsibility of the Council.

The local authority will liaise closely with the Agency, as the primary authority for dealing with controlled waters, wherever there is the potential for significant contamination of controlled waters from contaminated land or surface water.

1.4 Local Authority Duties under Part 2A

Local Authorities shall take a strategic approach to carrying out inspection duty under section 78B(1).  This approach shall be rational, ordered and efficient, and it should reflect local circumstances. In order to discharge its duties and responsibilities under the regime, Stockton Borough Council will:

1. Inspect its area to identify potential contaminated land
2. Determine whether any particular land is contaminated land under Part 2A of the Environmental Protection Act 1990
3. Undertake to consult with all interested parties and other agencies in determining appropriate action in the discharge of its statutory powers
4. Where decisions are not straightforward, and where there may be unavoidable uncertainty underlying some of the facts of each case, decide on whether and how to act.  Judgement shall be used to strike a reasonable balance between dealing with risks raised by contaminants in land and the benefits of remediating land to remove or reduce those risks; and, the potential impacts of regulatory intervention including financial costs to whoever will pay for remediation (including the taxpayer where relevant), health and environmental impacts of taking action, property blight, and burdens on affected people   
5. Take a precautionary approach to assess the risks raised by contamination, whilst avoiding a disproportionate approach given the circumstances of each case.  The various benefits and costs of taking action will be considered, with a view to ensuring that the regime produces net benefits, taking account of local circumstances, as specified in the Statutory Guidance
6. Only use Part 2A as a last resort to deal with land contamination and only where no appropriate other solution exists (see Section 5)

1.5 Strategic Implementation

Stockton Borough Council are required to take a "strategic approach" in accordance with the Contaminated Land Statutory Guidance (Defra 2012) by incorporating contaminated land into existing high level policy documents where appropriate - the Local Plan as an example.

1.6 Aim and Objectives

Stockton Borough Council's aim is to fulfil the requirements of the Statutory Guidance by inspecting its area according to the principles of the guidance. The strategy outlines how the legislation will be complied with through the following objectives:

• identify contaminated land sites in a rational, ordered and efficient manner which reflects any local circumstances
• be proportionate to the seriousness of any actual or potential risks
• prioritise areas of land it considers likely to pose the greatest risk to human health or the environment
• ensure that resources are concentrated on investigating areas where the authority is most likely to identify contaminated land
• minimise or reduce potential property blight as far as it considers reasonable
• be open to moves by the landowner (or other interested parties) in providing information to help resolve the status of the land
• encourage voluntary action to deal with land contamination issues as far as it considers reasonable and practicable
• encourage the re-use and remediation of brownfield land through the planning regime in accordance with the National Planning Policy Framework to ensure that new developments are suitable for use
• ensure the Environmental Protection Team continues to work closely with the Regeneration section to help with the identification and risk assessment of brownfield land to aid economic development
• ensure wherever possible that the original polluter pays for land remediation carried out under the Part 2A regime
• prevent any further land contamination, where possible, by raising awareness about the causes and effects of land contamination.
• where investigations/remedial works are carried on within close proximity to internationally designated sites, close liaison will take place with Natural England particularly in relation to hydrological pathways.
• in a similar way the Council will liaise with Natural England and take account of the impact of any works on land and soils resources and the wide range of vital functions [ecosystem services] they provide.  
• where investigations/remedial works are carried out on sites of archaeological or historic interest the council will liaise with Tees Archaeology and take account of the impact of any works on heritage assets.