Regeneration of brownfield land: the environmental law challenges

• Author: Jennifer Charlson
• Position: School of Architecture and the Built Environment, University of Wolverhampton, Wolverhampton, UK
• Pages: 202-218

Regeneration of brownfield land:

the environmental law challenges

Jennifer Charlson

School of Architecture and the Built Environment,

University of Wolverhampton, Wolverhampton, UK

Abstract

Purpose –The purpose of the project was to investigate environmental law issues surrounding the

regenerationof brownfield land.

Design/methodology/approach –Following a literature review, an inductive approach and an

interpretivist epistemologywith a phenomenological focus were chosen. A constructionistontological stance

was adopted.A qualitative paradigm was selected to explorethe issues in a focus group comprising industry,

legal expertand academiccontributors.

Findings –A critique of the literatureon relevant environmental law issues including contaminatedland,

waste management, water pollution,environmental impact assessment (EIA) issues and finally the political

agenda is presented.Contaminated land, waste management, regulatorsand legislation were discussed in the

focus group. The participants contributedtheir experiences and proposed several changes to environmental

law. However,water pollution and EIAs were not considered by the contributors.

Research limitations/implications –Developers face many environmental law challenges when

endeavouringto progress housing on brownfield sites includingcontaminated land, funding, waste treatment

permits, water pollutionand EIAs. The benefits of the remediation of brownfield sites for housing seem to be

a political priority, but reform of challenging environmental law issues less so. Understandably, the legal

complexitiesof Brexit will take precedence.

Originality/value –The literature review identified the need to research the experience of brownfield

environmental law challengesand recommended changes to environmental law from industry, legal experts

and academia.

Keywords Reform, Housing, Legislation, Contaminated land, Brownfield land, Brexit,

Environmental law, Political context, Regulators and waste management

Paper type Research paper

1. Introduction

The aim of the project was to investigate environmental law issues surrounding the

regeneration and re-use of brownfield land. The introduction to this paper sets the issues

within the political context. Thereis a focus on housing in the UK’s West Midlands region,

but the issues are applicable to other developments in England. Section 2 analyses

contaminated land challengesincluding the legal regime, case law, remediation declarations,

critique of the legal system, liability for contaminated land and funding.Section 3 examines

other environmental law issues including waste management, water pollution and

environmental impact assessments (EIA). Section 4 explores the political agenda including

priorities in the West Midlands, Brexit implications, better regulation and the priority of

environmental law reform. Section 5 details the research methodology. The focus group

results are in Section 6 and theiranalysis in Section 7. Finally, conclusions are presented.

1.1 Political context

Wong and Schulze-Baing (2010) explain that the reuse of brownfield land for housing has

been a major policy objective in England since the late 1990s. They concludethat this re-use

JPPEL

10,3

202

Received15 December 2017

Revised8 March 2018

21June 2018

Accepted22 August 2018

Journalof Property, Planning and

EnvironmentalLaw

Vol.10 No. 3, 2018

pp. 202-218

© Emerald Publishing Limited

2514-9407

DOI 10.1108/JPPEL-12-2017-0038

The current issue and full text archive of this journal is available on Emerald Insight at:

www.emeraldinsight.com/2514-9407.htm

helps improve income and employment prospects for the most deprived areas in Britain. In

January 2015, the Department for Communities and Local Government (2015) published

their consultation proposals for building more homes on brownfield land. The consultation

(p. 9) explains that “Brownfield”(previously developed) land is defined in Annex 2 of the

National Planning PolicyFramework as:

Land which is or was occupied by a permanent structure, including the curtilage of the developed

land (although it should not be assumed that the whole of the curtilage should be developed) and

any associated fixed surface infrastructure.

The Campaign to Protect Rural England (2016) suggests that brownfield sites across

England can provide at least 1.1 millionnew homes.

The Chancellor (2016), in his Autumn Statement(23 November 2016), announced £2.3bn

for a new Housing InfrastructureFund:

The fund will be used for projects such as roads and water connections that will support the

construction of up to 100,000 new homes in the areas where they are needed most. On top of that,

£1.4 billion will be used to provide 40,000 new affordable homes, including some for shared

ownership and some for affordable rent. And another £1.7 billion will be used to speed up the

construction of new homes on public sector land.

The Housing and Planning Minister (2017), Gavin Barwell, confirmed on 3 April 2017 that

Councils will have new tools to speed up development of derelict and underused land for

new homes. He explained that local authoritieswill now have to produce and maintain up-to-

date, publicly available registers of brownfield sites available for housinglocally. He added

that the £3bn Home Builders Fund will be used to support the development of brownfield

sites, with an additional £1.2bn provided to unlock at least 30,000 starter homes on

brownfield land. There is, therefore, a national political focus on developing housing on

brownfield land.

2. Contaminated land

This section explains the contaminated land legal regime illustrated by case law and

remediation declarations. The system is then critiqued and liability for remediating

contaminated landand the funding implications are discussed.

2.1 Legal regime

The purpose of Part 2A of the Environmental Protection Act 1990[1] (EPA 1990) is to

identify and remediate contaminated land in England which poses an unacceptable risk to

human health or the environment and which is not being remediated voluntarily.

Contaminated landis defined in Section 78A(2) as:

Any 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) pollution of controlled waters is being, or is likely to be, caused.

The person primarily liable for the remediationcosts is the “polluter”(Class A person) with

the owner or occupier (ClassB person) secondarily liable. As Lees (2016,p. 12) explains:

The [secondary] liability is justified not by fault or causation, but by a direct relationship with the

land. The guidance on the contaminated land provisions in the UK demonstrates that the primary

Regeneration

of brownfield

land

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