Contaminated land
Many developers and land owners experience considerable problems when dealing with land which falls within the definition of “contaminated land”. Our firm has substantial experience in this field and has, over a number of years, provided advice to those who either own contaminated land or who are proposing to purchase such land. We have also handled Applications for development of land which falls within the definition of contaminated land. There are of course many ways in which land can become contaminated and indeed there are various levels of contamination which need to be considered carefully. In many cases, land can be improved by the remediation processes currently available. However, it should be noted that, in some cases, the remediation process is compulsory in circumstances where a formal Remediation Notice is issued. We have been involved in dealing with cases of compulsory remediation and have negotiated successful outcomes for clients.
In this field of expertise, it should be noted that those investigating contamination focus upon the specific hazards either located on land or which have migrated from adjacent land and give consideration to the specific pathways which can lead directly to receptors. When one considers the various hazards that may arise on land, one must have regard to a number of sources which may include one or more of the following:-
1. Aromatics – PCBs, dioxins and furans.
2. Toxins – Hydrocarbons, inorganic salts, asbestos, phytotoxic heavy metals.
3. Corrosives – Acids and alkalis.
4. Gaseous Compounds – Acetylene, hydrogen cyanides, hydrogen sulphides.
5. Liquids – Flammable liquids, fuel oils, solvents and solids.
6. Materials – Various types of combustible materials including ash, timber, coal residue and similar carbon fuels.
In advising on contamination, one must examine the various pathways that may be used by the various hazardous materials and substances mentioned above. One must therefore have regard to the geology of the site and adjacent sites. In many cases, toxins can migrate for considerable distances under the force of gravity. When assessing contamination, one must have regard to the various national and international standards applicable to the assessment of the level of toxicity on contaminated land. This is a contentious area given that there are numerous debates relating to what can be regarded as an acceptable level of toxicity. There are also contentious issues surrounding the assessment of the sensitivity of different receptors. Accordingly, the assessment of contamination on land can be a very complex and indeed contentious issue. In such circumstances, it helps to have the best advice available and this firm can provide the required degree of expertise.
When assessing potentially contaminated land or land acknowledged to be contaminated, it is necessary to instigate various site investigation procedures. These can include desktop studies coupled then with walkover surveys. These can be followed by detailed site investigations and, where appropriate, the instigation of remedial treatment processes. In all cases, long term monitoring is required.
One must have regard to the history of previous land uses on any site whether or not the land is specifically designated as contaminated land. For example, if the site was formerly occupied by an iron and steel works, one would have concerns over whether or not the land was contaminated by, for example, mineral oils. In all cases, one must inspect all relevant public records and also have regard to historic evidence relating to past industrial uses for example. In assessing contamination and its impact, one must take into account guidance provided by Central Government. In particular, one must focus upon the rather complex legislative framework including the provisions set out in the Environment Act 1995 and particularly sections 57 and 80. One must also take into account EC Directive 94/62.
In the United Kingdom, considerable emphasis is placed upon a risk assessment relating to contamination on land. It therefore follows that it is important at the earliest opportunity to arrange for a formal risk assessment to be carried out relating to land which is either potentially contaminated or is already recorded in the public records as being contaminated. It must of course be noted that so far as the planning issues are concerned, every Local Planning Authority must take into account the degree of contamination of land in its approach to proposals for development on such land. Clearly, the level of contamination on a site is a material planning consideration. In many cases, Local Planning Authorities impose specific and very onerous conditions on Planning Permissions requiring remedial works to be carried out relating to sites before the new development scheme can be implemented.
When seeking to develop contaminated land, developers will incur substantial additional expenditure in the development process purely as a result of the contamination on the site. For example, developers for whom we have acted have been obliged to insert an impermeable layer within a development site for the purpose of seeking to prevent the upward migration of gaseous substances. In other cases, developers have been obliged to replace all topsoil on the site with new imported topsoil before commencing development. There are of course many solutions to land contamination problems but many of them are very expensive. It should also be noted that any contaminated topsoil removed from a site must be removed safely and to a duly appointed and agreed place for disposal. With reference to the number of toxic substances, it should be noted that in many cases there are only a few places within the United Kingdom where one can safely deposit such materials and this only adds to the substantial costs involved in the remediation process.
It should be noted that when a remediation process is successfully concluded, land which was noted in the local Land Charges Register as contaminated land by the Local Authority still remains on the Register. The only impact of the remediation process is that the Local Planning Authority can record the fact that the remediation process has been completed and this is noted on the Register. In essence, once land is recorded as being contaminated, it is noted for all time as having at least once been contaminated despite the fact that it has subsequently been subject to a remediation process. This can clearly have a significant impact upon the value of land which is subject to such a designation. We have of course been involved in all aspects of provision of advice relating to contaminated land. We have advised on sites throughout the country including sites within the Midlands and also sites in East Anglia.
