Contaminated Land Planning Constraints
Under Part 2A of the Environmental Protection Act 1990, the statutory definition of contaminated land 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:
- significant harm is being caused or there is a significant possibility of such harm being caused; or
- pollution of controlled waters is being, or is likely to be, caused.
Statutory guidance has been issued concerning this definition, which is modified with respect to radioactivity. Please see outline of the regime for a brief description of the regime, the key elements and where to find them, including Defra Circular 02/2006 on contaminated land.
In planning guidance, however, the term “land affected by contamination” is used. This covers cases where “the actual or suspected presence of substances in, on or under the land may cause risks to people, human activities or the environment, regardless of whether or not the land meets the statutory definition in Part IIA”. The principal difference is that under the planning system, risk assessment is based on the new or intended use of the land, rather than the existing use. The common underlying principle is the identification and remediation of land which may pose a risk to human health and/or the environment.
The Government encourages the re-use of land for development but on some sites the land has been contaminated by the previous use. In approving applications for planning permission therefore the Borough Council has to have regard to remediation measures to deal with the contamination. It imposes planning conditions to ensure that a survey and appropriate measures are submitted and carried out by the developer. The responsibility for remediation rests with the developer of the land.