Keywords: contaminated land, statutory guidance
Abstract: This article examines the new contaminated land guidance for England published in April 2012, and the underlying tensions apparent in the philosophy behind the changes made to the previous guidance contained in Defra Circular 01/2006. It looks, in particular, at the approach that the new document takes in relation to scientific uncertainty and risk management, as well as considering the 'new' presumption against a determination of contamination, the reliance on the precautionary principle, and the treatment of background contamination. It also examines the conflict apparent in the document between local decision-making and nationally mandated goals and processes. In attempting to ensure that regulatory intervention has a net benefit, the guidance both allows local flexibility and heavily prescribes that flexibility. The resulting document, it is suggested, is a compromise and one full of tensions. It was designed to simplify and clarify the pre-existing contaminated land regime, and although in some areas, such as cost recovery, it achieves this, it brings new challenges to enforcing authorities. The new approach can best be seen, however, as a genuine attempt at a response to the difficulties of decision-making in this area. It is important that uncertainty and difficulty in examining and applying the new guidance do not become excuses for inaction.
In an earlier paper, this author argued that the contaminated land regime as found in the Environmental Protection Act 1990, Part 2A (EPA) and Defra Circular 01/2006 was being misinterpreted, especially as regards the recovery of costs for remediation from owner-occupiers.1 The new statutory guidance for the contaminated land regime in England has since been published by Defra.2 In line with the ongoing 'red tape challenge',3 the new document is considerably shorter than the old version,4 and there are certainly some welcome changes, but it must be said that many of the problems experienced by local authorities and charted in the Environment Agency's Reporting the Evidence5 are likely to continue even with the help of this simplified guidance. Furthermore, the new guidance cannot simply be dismissed as being a shorter version of the old guidance. There is a subtle but persistent shift in philosophy in the approach to risk management, particularly with the move away from the notion of the 'suitable for use' standard for clean-up. This change in emphasis may well prove more significant than a first glance would suggest.
Both the old and new guidance fulfil the same function: providing more detailed instruc¬tions to enforcing authorities as to the interpretation and application of the provisions of Part 2A than the legislation itself provides. The eight sections of the new guidance cover the aim of the regime: inspection, risk assessment, the definition and determination of contaminated land, remediation, liability and costs. Each of these sections maps onto Part 2A and provides a practical guide to the implementation of the regime. The guidance no longer applies to radioactive contamination. There are also some practical changes in the approach to the determination of contaminated land, background levels of contamination, and to risk assessment.
There are, in effect, six interwoven (but potentially inconsistent) themes running through the new guidance:
- the presumption against designation of land as contaminated;
- the approach to precaution and risk assessment;
- the caution against an 'all or nothing* approach to cost recovery;
- the aim of ensuring a net benefit consequent on regulatory intervention;
- the fact that the regime is now mandated as a regime of last resort; and
- the strength or otherwise of the increased focus on action and responsibility at a local level.
Each of these has the potential to prompt a new philosophy in relation to contaminated land in the UK, even though, on its surface, the regulatory picture is not greatly altered. This paper examines these themes and looks at what they may mean for local authority action in relation to the historic pollution of land. The purpose of this review is not to suggest that practice towards contaminated land will undergo a marked alteration. Rather, it is to examine some of the underlying themes of the new approach.