The contaminated land regime and austerity

AuthorLloyd Andrew Brown
PositionBirmingham Law School, University of Birmingham, Birmingham, UK
Pages210-225
The contaminated land regime
and austerity
Lloyd Andrew Brown
Birmingham Law School, University of Birmingham, Birmingham, UK
Abstract
Purpose – The purpose of this paper is to investigate how the remediation of contaminated land has
been damaged, perhaps immeasurably, in a period of devastating and crushing austerity.
Design/methodology/approach – A legal doctrinal and regulatory analysis of the contaminated land
regime under Part 2A of the Environmental Protection Act (EPA) 1990 was used to investigate the extent to
which austerity changes have affected future contaminated land identication and remediation.
Findings – Austerity changes have impacted upon Part 2A of the EPA 1990, the planning system and
development incentives. The recent changes are going to contribute to the problem of the
under-resourcing of local authorities and are likely to reduce voluntary remediation by developers. As
a result, future contaminated land clean-up is going to decrease.
Originality/value – Originality/value is assured because, as far as the author is aware, there is no
other literature in this research area dealing specically with the coalition’s adverse impact on Part 2A;
this paper lls the knowledge gap that existed in the research eld.
Keywords Part 2A, Austerity, Coalition government, Contaminated land regime,
Environmental protection act 1990, Land pollution
Paper type Research paper
1. Introduction
In a period of nancial turmoil the political agendas of the coalition, and later
conservative, government have aimed to stimulate short-term economic growth by way
of austerity initiatives. The “Red Tape Challenge”, “Localism” and the “Big Society” are
the tools that have been used to reduce the State’s responsibility in many areas.
Inevitably, some of the structures that have been put in place to enhance environmental
protection have been weakened by the neoliberal politics of this period. In particular,
this paper evaluates the impact that austerity has had on the remediation of
“contaminated land”[1]. By analysing recent law reforms and public sector cuts, it is
possible to show how severely the “contaminated land regime” has been affected by
austerity. On a macro scale, the recent changes made in austerity could be seen as
placing less pressure on the public sector, which will result in potentially more private
sector remediation. In practice, however, it is not a valid argument to say that austerity
measures will encourage more private sector engagement and voluntarily remediation
through market self-regulation. The “broad approach” to contaminated land
remediation has been collectively affected since 2008. The regulators of Part 2A now
receive less nancial support to carry out their statutory duties. Recent law reforms
The author would like to thank Bob Lee and Elen Stokes for their comments and support.
Gratitude also to the reviewers for their feedback, and to Julie Adshead for her help and support
as editor. Any mistakes in this work belong solely to the author.
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1756-1450.htm
IJLBE
8,3
210
Received 30 November 2015
Revised 26 August 2016
Accepted 26 August 2016
InternationalJournal of Law in the
BuiltEnvironment
Vol.8 No. 3, 2016
pp.210-225
©Emerald Group Publishing Limited
1756-1450
DOI 10.1108/IJLBE-11-2015-0019
have made contamination clean-up more difcult to achieve. Public sector incentives
have been cut so signicantly that the potential uptake of contaminated sites by private
sector developers is likely to decrease.
2. The contaminated land regime and its ineffectiveness
Historically, heavy industry was largely unregulated and conducted with little or no
concern for the damage that may be caused. In consequence, land and waterways
became polluted by substances (e.g. arsenic, lead, tar and oil) capable of causing
signicant harm to a range of receptors, including humans. While it is estimated that 2
per cent of land in England is likely to be affected by previous industrial processes
(Environment Agency, 2016a, p. 7), it is nevertheless currently unknown exactly how
much “contaminated land” exists in the UK.
There is, however, a “regime” for notifying and remediating contaminated land
under Part 2A of the Environmental Protection Act (EPA) 1990[2]. Since the
contaminated land regime was brought into force in April 2000, there has been a lack
of development in terms of the notication and remediation of contaminated land;
this has subsequently led to criticism of the regime’s direct effectiveness to allocate
liability to persons responsible for causing the contamination (Brown, 2015,p.8).
The small number of notications so far made under Part 2A may be explained by
the fact that the local authorities are in a weak position, both nancially and
technically, to carry out their Part 2A statutory duties (Vaughan, 2010, pp. 149-152).
Nevertheless, the contaminated land regime takes a “broad” approach to clean-up by
working closely alongside other regimes that share its primary objective:
contaminated land remediation.
2.1 The contaminated land regime
The contaminated land regime came into force in April 2000 as, “a means of dealing with
unacceptable risks posed by land contamination to human health and the environment”.
(Defra, 2012, para. 1.3). Local authorities are the primary regulators of the contaminated
land regime, and are under a statutory duty to inspect their areas “from time to time” for
the presence of any land affected by contamination [Defra, 2012, para 2.1(a)-(b)][3]. Risks
are to be assessed in relation to whether the “current use of the land” presents an
unacceptable risk to human health or the environment (Defra, 2012, para. 3.5). When
contaminated land is identied, the enforcing authority will serve a “remediation notice”
on each person who is an appropriate person[4]. Where the local authority has identied
contaminated land it:
[…] shall […] serve on each person who is an appropriate person a notice […] “remediation
notice” […] specifying what that person is to do by way of remediation and the periods within
which he is required to do each of the things so specied (Defra, 2012, para. 6.2).
Failure to comply with a remediation notice constitutes a criminal offence[5], which, on
summary conviction, is punishable by a ne[6]. An appeal against a remediation notice
may be made within 21 days of the notice being served[7]. Local authorities have the
power to undertake remediation works[8] and recover the costs incurred from
appropriate persons[9] by way of a charging notice[10]. According to Part 2A, there are
four “determinants” which assist the local authorities in identifying contaminated land
(Defra, 2012, para. 5.5):
211
Contaminated
land regime

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