Some questions answered
What is contaminated land?
Land can be affected by contamination from certain substances in the environment. These substances may occur naturally or be associated with the former usage of land. Some substances may cause harm to people, animals, buildings, ecological systems, or cause the pollution of water. The definition of contaminated land is based upon the principles of risk assessment. Risk is defined in government guidance as the probability or frequency of a defined hazard and the likely magnitude of the consequences.
In applying the definition of contaminated land the Local Authority must identify a “source”, a “pathway” and a “receptor” on the site as defined in statutory guidance. If this pollutant linkage does not exist the land cannot and should not be regarded as being contaminated land.
How is contaminated land dealt with?
Remediation of contaminated land sites can take many forms but to succeed the pollutant linkages between the source, pathway and receptor must be broken. Trafford Council will continue to look at new and innovative methods of remediation which are site specific.
Remediation may occur on a voluntary basis, or after enforcement action. In all cases the Council will require a remediation statement after completion of the works. Copies of remediation statements can be provided to relevant land/property owners to help with future sales.
Remediation Statements will also be requested for sites that have been evaluated through the planning process.
What is the Council doing about land contamination?
Trafford Council has been implementing a contaminated land strategy within the borough for over ten years. The purpose of the strategy is:
- Demonstrate how the Council will inspect its area to identify potentially contaminated land.
- Carry out detail inspection of potentially contaminated land sites.
- Determine whether any particular site is contaminated land through identification of pollutant linkages and whether there is a significant possibility of significant harm being caused.
- Apportion liabilities.
- Effect the remediation of contaminated land, through voluntary action, the planning process or through serving a remediation notice.
- Maintain a public register of contaminated land detailing information about notices, appeals, remediation statements and all items specified in section 78R of the Environmental Protection Act 1990.
- Recover costs and relieve hardship.
The Contaminated Land Team also acts as a consultee for the planning department where proposals may be affected by land contamination.
Who is responsible for cleaning up land contamination?
Where land is being developed through the planning process the developer will be responsible for ensuring that the site is suitable for its intended use and that contamination no longer presents a risk to site users and the environment.
The Council will expect that in the majority of cases sites that are affected by contamination are cleaned up voluntarily by the land owner.
For sites that are being investigated under the provisions of the statutory contaminated land regime identifying who is responsible for the cost of cleaning up the land is a complex process and the Council has to have regard to guidance issued by the Government (DEFRA Circular 01/2006).
Where possible it should be the responsibility of the polluter, or those that may otherwise have been negligent in some way, to bear the cost. However in some cases it the current owner of the land may be liable. In deciding who should pay the Council will try to be as fair as possible and take into account the individual circumstances of individuals or organisations.
Why is land contamination affecting my house sale/purchase?
It is common for conveyancing solicitors to carry out a search to ascertain whether a property is affected by land contamination. These are often supplied by commercial search companies who search their own databases and supply a risk-based decision on a property.
As a result of these searches the property may be found to be at minimal risk from land contamination or have the potential to be affected. This does not guarantee that contamination is or is not present, something which only a detailed site investigation can confirm.
The contaminated land team offer an environmental search which details the information the team holds for areas of land. It will also detail whether a site is Contaminated Land under the legal definition. For information please see the Councils Contaminated Land page.
For newer developments it may be worth contacting the Planning Department (0161 912 3000) or the NHBC. They may have information on what steps were taken to make the site suitable for its current use.
It is possible to get indemnity insurance in relation to land contamination from insurance companies, which is something you may want to look into.
Do areas of land which are identified by the Council for investigation appear on any environmental searches?
Independent environmental searches use sources such as historical mapping and trade directories but do not contact the Council for information on the sites that we have identified as potentially contaminated land sites. They will, however, list any sites which have been designated as statutory Contaminated Land on the Local Authority Contaminated Land Register.
Independent environmental searches will often highlight areas that have in the past been used for potentially contaminative uses, without assessing the risk to human health or the environment.
Do I need an ‘Environmental Certificate’?
As part of the house buying process an environmental search is often undertaken by a private search company who will offer you professional opinion and refer to a 'certificate'. Such certificates are not a legal requirement and are intended to help you interpret the findings of your commercial environmental search.
If you aren't issued with a certificate, or the professional opinion requires further action, it does not mean that the land is contaminated just that more detailed information may be needed. A contaminated land search undertaken by your Local Authority may provide you with the further information you need.
However, a certificate issued by an environmental search company does not constitute a guarantee that the site or property in question does not meet the statutory definition of contaminated land. It is only a statement from the company undertaking the search that a review of the data examined in the search did not identify an obvious potential source of contamination at the land or property in question.
An environmental search that indicates the potential for contamination on site does not prove that there is a problem. It is merely an interpretation based upon maps and other paper records. The key information informing that decision will be actual good quality site investigation data that confirms the presence or absence of significant contamination. If this data is not available to the Council you will have to arrange for additional searches or site investigation.
It is important to remember that your local authority is the primary regulator of Part IIA (of the Environmental Protection Act 1990) and is the best source of information when looking to make decisions relating to Part IIA.
Can I undertake my own soil sampling to assist in my house sale/purchase?
You may wish to carry out testing yourself to determine whether the land is affected by contamination. However, you should note that sampling and testing may be required for soil, groundwater and ground gas and that the investigation and interpretation should be undertaken by an appropriately qualified contaminated land consultant, something that can be expensive and time consuming. It should also be noted that the decision on subsequent action will usually rest with the property owner.
How do I request information?
The Environmental Information Regulations 2005 (EIR) give members of the public access to environmental information held by public authorities. Under EIR, authorities are not permitted to charge for access to public registers, or examination of environmental information. Where the Council receive a request in writing to provide detailed information on a site a charge in the region will be made for this service. See the Council Fees and Charges report for current charges. Information on commissioning an environmental search is available on the Councils contaminated land webpage.
What will happen if my property is on statutorily contaminated land?
If, through investigation, substances in, on or under the land are found to pose a ‘significant possibility of significant harm’, or ‘pollution of controlled waters’ (surface water features or groundwater), remediation will be required to restore the area to its required use. Remediation can include actions such as the removal or treatment of topsoil or changing the nature of a garden to prevent uptake of contamination by receptors. If remediation is enforced, the area of land affected by the contaminants identified will be placed on the Local Authority Public Register.
Who will pay for this remediation?
The ‘appropriate person’ pays for remediation. Appropriate people can be classified as Class A and Class B persons. Class A persons are those people that may have caused the contamination or those that have knowingly permitted a pollutant to be in, or under the land (e.g. developers). If these people cannot be located then responsibility may default to a Class B person who may be the current resident or landowner.