Who is responsible for contaminated land in England and Wales?

What is contaminated land?

Contaminated land is commonly found on brownfield sites – previously developed land that is either abandoned or underused because of pollution caused by industrial use, such as a factory, mine or landfill.

It is legally defined as land where substances cause, or could cause:

  • Significant harm to people, property or protected spaces
  • Significant pollution of surface waters or groundwater
  • Harm to people because of radioactivity.

Although contaminated land refers primarily to brownfield sites, greenfield land can also be contaminated.

The Environment Agency / Natural Resources Wales (NRW) or the local planning authority (council) decides if a piece of land is contaminated.

If land is designated as contaminated, it means it must be assessed if any planning application is made to develop it. If an initial desktop assessment recommends further work, intrusive site investigation and potentially remediation may be required before development can begin.

The Contaminated Land Regime was introduced in 2000 as Part 2A of the Environmental Protection Act 1990, to identify contaminated land that causes an unacceptable level of risk.

More recent guidance comes in the land contamination risk management (LCRM) 2020, which any organisation has to follow if it is managing the risks from land contamination. The LCRM is relevant to any business or organisation involved in or responsible for managing land contamination. These include: landowners, regulators, developers, planners and professional advisors such as a financial service provider.

The local authority is responsible for enforcing the clean-up, requiring those who have contaminated the land to remediate.

Who is responsible for cleaning up contaminated land?

If the land is legally designated as contaminated, the organisation or person that either caused the contamination or allowed it to happen has to deal with it, according to the Environmental Protection Act 1990.

The only exceptions are if the source of the contamination cannot be identified, if the business responsible no longer exists, or if the local council or Environment Agency / NRW carries out an investigation and concludes it is exempt.

The council or Environment Agency will decide who is then responsible: it could be the landowner or the person who occupies the land.

Contaminated land reports

If the local authority deems the site or nearby to potentially be contaminated, a Phase 1 contaminated land report has to be completed to mitigate against any potential risk. This is because remediation can result in significant bills and other implications, such as delays in development plans and even making it difficult to remortgage or sell in the future.

That’s not to mention the risk of long-term health problems that can be associated with some contaminated land.

It is why it is so important that whoever is responsible for undertaking a property purchase or development, as well as their legal adviser, understands the degree of risks and potential financial implications.

How to get a Phase 1 Contaminated Land Report

GeoSmart Information produces phase 1 contaminated land reports for planning applications, building regulations and property transactions.

The report provides an overview of the risk of land or groundwater contamination to both end-users and to the immediate environment.

Our experts work diligently to publish a bespoke qualitative risk assessment, which includes a conceptual site model that describes the potentially significant sources of land and soil contamination, receptors and pathways.

We offer three report packages – EnviroSmart, EnviroSmart Plus and EnviroSmart Pro – that cover all levels of information required for a contaminated land investigation.

The interpretive reports contain a wide range of information that relate to the specified site as well as its historical uses. They outline the likely presence of any contamination within the subsurface, should any exist, and the potential risks to future site users and the immediate environment. They then make further recommendations for potential further site investigation, if deemed necessary.

These reports are useful for: property developers; self-builders; architects, planning consultants and land agents; solicitors; lenders, banks or mortgage providers; businesses; and insurance companies

To find out more about our phase 1 contaminated land reports, contact one of our specialist team members today.