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Some questions and answers about contaminated land

What is contaminated land?

The legal definition of contaminated land, as provided by Part IIA of the Environmental Protection Act 1990, is:

“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 a) significant harm is being caused or there is a significant possibility of such harm being caused or b) significant pollution of controlled water is being caused, or there is significant possibility of such pollutions being caused.”

A lot of information has been squeezed into this definition for a complex route to actually identifying contaminated land. Three main components must be identified:

  • a source of contamination must exist
  • there must be a receptor, such as a household or the groundwater that people drink
  • most fundamentally, there must be a pathway, by which the source reaches the receptor. This could be direct contact with garden soil for the householder or through the soil to the groundwater.

So the mere presence of contamination at a site will not necessarily mean that the land is contaminated.

 

Why do I need to know about contaminated land?

All local councils have a duty to identify sites that fit the legal definition of contaminated land. Medway Council has drawn up a strategy to inspect the local area to find the most serious sites first. As there is not much new land for housing in the south-east, old industrial sites are often reclaimed for housing and it is important that you know as much as possible about how the site was made suitable for its new use.

In certain cases, if the original polluter of the contaminated land cannot be found, the new owner of the land may be liable for cleaning it up. The Law Society has told solicitors to make sure they advise their clients of potential liabilities associated with contaminated land. This means that they should recommend an independent site history investigation from a specialist company.

 

How does land contamination happen?

Historical land use in the UK includes industrial, mining and waste disposal. Various industrial practices have led to substances such as chemicals, oils and tars being present in, on or under the land. Excavated land was sometimes filled with waste without adequate precautions against the pollution of surrounding land or the soil above the landfill.

 

What are the risks with contaminated land?

Contaminated land may present a hazard to potential users of the land and affect vegetation. Exposure to contaminants can be through inhalation of dust or gases, contact with soil or through food grown on the land. Leachates (pollutants draining from the site in liquid form) can pollute groundwater and rivers or ponds. Some contaminants may be corrosive and some can pose a risk of explosion or fire.

How can I find out about land contamination?

The council holds a wide range of data on potential sources of contamination. A register is maintained to show when legal action is taken on contaminated land. For sites that may be contaminated, the council holds data on:

  • historic land use
  • planning history
  • pollution incidents
  • details of closed landfill sites
  • site specific reports on investigation and remediation.

The council can provide a written response to enquiries on potential land contamination, although a charge applies for this service under the Freedom of Information Regulations or Environmental Information Regulations.

Information and environmental searches are also available from commercial companies that may also give a certificate or opinion on the possibility that the land may fit the legal definition of contaminated land.

 

Is the home I am buying built on contaminated land?

Your solicitor can conduct an environmental search for you but the results of these searches should be treated with caution as not all contaminated land has been identified and the databases on which the searches are based are not always accurate.

 

What happens if I have had a search done by a commercial company but it will not issue a certificate?

You will need to find out more about the land. Although a certificate is not a requirement, the certificate or professional opinion is intended to help you interpret the findings of the environmental search. Environmental searches from commercial providers often rely on third party information. If you are not issued with a certificate to show that it is not contaminated, it does not mean that the land actually is contaminated, just that more detailed information is needed. At this point you may want to formally request some more information from the council. Your search provider may also advise you on further action to take.

 

Is all past industrial land now contaminated?

It is important to note that past industrial use does not always mean that contamination is present today. Firstly, if the industry occurred a long time ago, there is a strong possibility that any contaminants present then will have changed to such a degree that they are no longer considered harmful. Secondly, many houses are built with the industrial past of the site in mind and appropriate remedial work is often carried out when the houses are built.

 

Is it safe to live on land affected by past use?

In most cases the risk from living on previously used land is low or negligible. Quite often there is more effect on the value of a property from perceived risk rather than the actual effects to the health of occupiers or the wider environment. For health effects to take place you would usually need to have regular, prolonged contact with the source of contamination or the dust or vapours produced by it. When sites are redeveloped, careful consideration is given to what future occupants would be exposed to, especially those most vulnerable, such as children.

 

What is the Kent Landfill Atlas?

Land is sometimes shown as potentially contaminated if it appears on the Kent Landfill Atlas. Council officers across Kent put the landfill atlas together in 1990 to identify areas which had been filled and assess if landfill gas was an issue. Many sites on the atlas have been safely redeveloped and will not fit the legal definition of contaminated land. Other sites may have gas control or remedial measures in place and the council can provide more information on these.  The information in the Kent Landfill Atlas is compiled and maintained by the Environment Agency (Orchard House, Endeavour Park, London Road, Addington, Kent, ME19 5SH. Phone: 0870 8506 506)

 

What can be done to make land contamination safe?

House builders must routinely consider the past industrial use of a site they propose to build on and carry out appropriate remedial work at the site. This means removing any contamination, treating it so that it is safe or creating a barrier so that there is no possible link between contamination and the receptor (future occupants). This is closely monitored by the council and in some cases, the Environment Agency. Conditions put on the planning approval will not be discharged until the council is satisfied that all works have been carried out as necessary.

Where housing is proposed near a disused landfill site, then the houses are built to a specification that takes account of the small chance of migrating gases. When landfills close, they go through a careful process whereby they are capped to prevent escaping gases and gases are actively drawn out and burned. Usually no houses would be built near such a site until a period of time has passed and the site is viewed as stable.

 

Will I be able to sell my house if it was built on or near contaminated land?

When a standard land search is made, questions are automatically asked as to whether the land has had legal action taken as a result of it being contaminated. If land was contaminated but the contamination has been remedied, you will know that it has been made suitable for use. If there is no evidence of harm as a result of contamination, it is unlikely that the council would take legal action or define the land as contaminated. If you have made enquiries about the status of the property and received an opinion that it is not contaminated land, you have important documents that will assist in selling your house in the future.

 

If you would like more information, ask a solicitor or contact the council on 01634 333333

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