Withdrawal of funding for the contaminated land regime

The funding programme for contaminated land enforcement in England closed on 1 April 2014. For a three-year period, a small pot of money is available to local authorities for ongoing remediation projects and “absolute emergency cases”. Funding will then cease completely from 1 April 2017. We look at the implications for local authorities, developers and residents living on or near contaminated land.

Shock announcement

On 9 December 2013 Lord de Mauley Parliamentary Under Secretary made the funding announcement to all local authorities in England:

• The Contaminated Land Capital Grants Scheme will be closed from 1 April 2014
• For a three year period £0.5 million will be available to meet the requirements of ongoing remediation projects or for “absolute emergency cases”, subject to capital funding being available within Defra
• Funding will then cease completely from 1 April 2017

Local authority Contaminated Land Officers can still apply for the Revenue Support Grant from the Department for Communities and Local Government, however this is not ring-fenced for Part 2A work. The Revenue Support Grant helps local authorities undertake their statutory duties, primarily for staffing costs and the other costs of running services.

Grant funding for Part 2A enforcement

Local authorities have a statutory duty under Part 2A of the Environmental Protection Act 1990 to identify “contaminated land” posing unacceptable risks and to then secure remediation.

The Capital Grants Scheme helped local authorities and the Environment Agency pay environmental consultants for site investigations and clean up of contaminated land under Part 2A. According to the Environment Agency, the average cost of a site investigation is £14,500 and the average cost of remediation is £105,800.

The £2 million budget previously allocated by Defra for 2013/14 will fund 38 local authority sites and five Environment Agency sites. In 2009 the budget was £17.5 million.

Implications for local authorities

The Defra money enabled the regulators to make Part 2A decisions on high risk sites. The withdrawal of funding effectively signals the death of the contaminated land regime.

Howard Price, Principal Policy Officer at the Chartered Institute of Environmental Health commented:

“The move, at a stroke, effectively negates the statutory duty given to councils by Parliament”.

Councils still have the statutory duty under Part 2A but no money to undertake site investigations to help make the enforcement decisions. What are their options?

• Use the threat of Part 2A enforcement to encourage site investigations and voluntary remediation
• Focus on easy targets such as large known polluters or innocent site owners
• Secure remediation through planning permissions and planning obligations
• If there is water pollution refer the site to the Environment Agency who may be able to act under the Water Resources Act or the Environmental Permitting Regulations
• If any environmental damage to land has been caused after March 2009 consider whether the Environmental Damage Regulations can be used
• Seek independent legal advice as aggrieved residents could judicially review the council’s decision not to act

Increased costs for developers

At first glance developers may think that the liability risks are reduced.

Local authority Contaminated Land Officers will have no firepower to commission site investigations, so there could be less Part 2A enforcement against developers at sites that have already been constructed.

There is however a greater financial risk for developers as a result of the Defra announcement.

Planning controls already secure the remediation of over 90 per cent of contaminated sites in England. The Defra funding announcement will focus the spotlight even more on voluntary redevelopment through the planning regime.

Local authorities will need to focus on achieving “better” clean-up through planning controls, as Part 2A will not be available for residual contamination

This could increase the overall remediation costs for developers.

Bad news for residents living on or near contaminated sites

In April 2014 a study by Durham University concluded that people living near brownfield sites are “significantly more likely to suffer from poor health”. They advised that 62,000 hectares of the estimated 325,000 hectares of contaminated sites pose an ‘important environmental influence on health’.

Health risks from contaminated land include threats to life from landfill gas explosion birth defects, poisoning, sickness and stress.

Contaminated land can also significantly reduce property prices through blight or make homes difficult to sell.

As a result of the Defra announcement, there is a greater legal risk that residents will be asked to fund the clean up bill themselves as innocent owners.