Contaminated land

What is contaminated land?

Contaminated land is land where substances (the contamination) in or under the land make it actually (or potentially) hazardous to people’s health, or hazardous to our environment.

Throughout the UK there are numerous sites where land has become contaminated by human activities, including industry, chemical and oil spills and where waste has been buried.

There is a legal definition of contaminated land.

What is the legal definition?

Contaminated land is defined by Part IIA of the Environmental Protection Act 1990 as:

“Contaminated land” is 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 act and statutory guidance produced by the government provide further definitions and details on how local authorities must fulfil their duties in identifying and dealing with contaminated sites. Our where to go for more information page will help you find any more relevant information.

Why worry about contaminated land?

Contaminated land may present a hazard to people using the site and it may affect plants growing there

Exposure to contaminants can be through breathing of dust or gasses, touching contaminated soil and dust, or by eating food grown on the land

Pollution draining from contaminated land in liquid form can pollute groundwater (a major source for drinking water) and rivers or ponds 

Some contamination may cause damage to buildings and underground services like water pipes, and some can pose a risk of explosion or fire 

The effects are varied and difficult to quantify for any individual site

What are the health effects?

The effects of contaminated land on human health and on the environment will depend on the type and amount of contaminant involved. As all sites will be different, they have to be considered individually but using the same consistent approach.

For the vast majority of sites the health impacts on people will be very small.

However there is evidence that contaminated land can cause impacts to health ranging from skin irritation to breathing difficulties and more cancer and birth defects.

How is contaminated land identified?

All local authorities are required by Part IIA of the Environmental Protection Act 1990 to identify land in their area that is contaminated. Our approach is detailed in our contaminated land strategy and strategy review documents.

Land affected by contamination will be subject to a risk assessment. This will determine whether there is a significant risk to human health or risk of harm to the environment. A risk assessment considers the following factors:

• is there a source of contamination – are there any harmful substances actually present on the site or nearby land?
• is there a pathway between the receptor and the source?  Examples of a pathway could be breathing contaminated dust, touching soils on the site or consuming vegetables grown in the soil
• is there a receptor - such as people, rivers and buildings on the site that could be affected by the presence of the contamination?

Land can only be determined as contaminated land if all three source, pathway and receptor are present. This is known as a ‘pollution linkage’ or a ‘significant pollution linkage’ if the risk is considered significant.

If there is a source on site but no pathway or receptor then there is no pollution linkage. The site cannot be causing harm and should not therefore be classified as being contaminated land.

Who is responsible for paying for cleaning up the contamination? Who is liable?

We will always try to make the polluter pay for the clean up of a polluted area and pay for the damage caused by the contaminated land. This is in line with the government policy on making the polluter pay for pollution they have caused, known as the ‘polluter pays principle’. 

Under Part IIA of the Environmental Protection Act 1990, you may be responsible for costs associated with a contaminated site if you have 'caused or knowingly permitted' the contamination or if you own or occupy the land.

If you own the land and it is contaminated, you will only be responsible for the cost of making it safe when the person who caused the pollution cannot be found. In such cases not all of the costs may fall to you. We will contact you if this is the case. 

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

When I bought the property, there was no mention of any Contaminated Land issues, why was I not informed before purchasing?

The law relating to contaminated land (Part 2A of the Environmental Protection Act 1990) came into effect on 1 April 2000 which introduced new legislation detailing a regulatory regime specifically for the regulation of land quality to be enforced by Local Authorities and the Environment Agency.

If you acquired your property before this time it is unlikely that contamintion was considered as part of the planning processes when the property was built and it is unlikely that searches carried out by your solicitor would have included this aspect.

In July 2001 a Law Society Warning card was issued by the Law Society to all Solicitors in England, setting out the action they should take in all conveyancing transactions to highlight contaminated land issues to clients.  This guidance has been superceeded by Law Society: Contaminated Land Practice Note (December 2014).  If any potential contamination issues were not highlighted during your conveyancing process or the results of an environmental search were not brought to your attention, you may wish to contact your solicitor.

Why can’t the whole investigation be done as one, instead of in phases?

To follow statutory guidance the Council must undertake investigations in a phased approach. The council can only investigate areas intrusively where there is a reasonable possibility that a pollutant linkage exists.

Due to controls on funding and resources, if after the first stage (Phase I) no pollutant linkages are identified, intrusive investigations will cease. It is only if pollutant linkages are deemed likely that further, more expensive, phases of intrusive investigation will be carried out. This approach minimises the disruption to residents and ensures that unnecessary works are not undertaken. If my property is found, through investigation, to meet the definition of “Contaminated Land”, what will that mean?

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.

Why is Harborough District Council investigating my home now?

The council has a duty under Part 2A of the Environmental Protection Act 1990 to inspect its area for land which, in the past may have been used in a way that led to contamination and address any potential issues arising from this.

The council makes its decision about whether to investigate further based on risk from the possible contamination and considering the number of households potentially affected. We are starting now because there have been some problems with house sales locally because of questions raised over potential contamination. In addition, recent changes to contaminated land legislation and government guidance concerning contaminated land are now complete.

What is the risk?

Risks from contaminated land are generally very low.

The council has a legal duty to inspect land where records suggest there is significant risk of contamination being present. However, the land will only be determined as being contaminated if the council considers contamination in the ground poses a Significant Possibility of a Significant Harm (SPOSH).

A significant risk will be considered to be present where the assessment identifies a theoretical 1 in 10,000 risk of ill health during an entire lifetime as a result of contamination that may be present. This approach follows guidance set by the government. The table below tries to put this level of risk in context, compared to some other risks that people are generally faced with in life.

Can my children still play in the garden while we wait to find out about contamination?

Yes, but like you normally would, you should make sure they wash their hands afterwards and before they eat.

What advice has the council taken?

The council is following guidance provided by the Government and Environment Agency. We have employed experts to help us to design the site investigation and to do the risk assessments. The company we are using has significant experience of supporting councils in making decisions about contaminated land. We will also employ experts to do the investigation and take the soil samples.

Do you want to dig a hole in my garden?

We would like permission to dig a borehole and install a ground gas monitoring well in your garden. The hole is made by a small tracked machine and is about the same diameter as a drainpipe.  Access will be required to the well on an ongoing basis (a few times a month) to undertake ground gas testing.

Do I have to let dig you the hole?

We would very much like to have your permission and we believe it is in your interests to let us dig a borehole as we will get sample results about your garden which could take you out of the process very quickly. If you really don’t want to let us in we will try to find an alternative but we should make you aware that if necessary we have legal powers that allow us to get access to property. We would only use these powers as a last resort.

Will you make a mess in my garden?

We will make sure we leave your garden in a fair and safe condition however it may not be possible to return the site to the exact state it was prior to investigation.

Can I still sell my house?

While the investigation is being carried out it might make it difficult to sell a property and we know that the possibility of contamination on the site has already caused some problems for house sellers in the vicinity. However in the longer term the investigation will determine if the land is contaminated or not and if it is it the council will make sure it is dealt with. When this process is finished it will remove uncertainty.

Will you say my garden is contaminated if it is not as clean as would be required for a new house?

No. We will only say it meets the definition of “contaminated Land” if it is causing significant harm or there is a significant possibility of it causing significant harm. This is what the government guidance says we must do and it would not be fair to dig up everyone’s garden unless we really need to.

What other information can we see?

There are resources from various government and non-govermnet organisations

Gov.uk contamainated land page

Environment Agency Technical Guidance and Contaminated land Exposure Assessment (CLEA) Model

CL:AIRE Contaminated Land: Applications in Real Environments

Planning and Contaminated Land: National Planning Policy Framework

How can I ask more questions

Email environmentteam@harborough.gov.uk  or

Telephone the council on 01858828282 and ask to speak to the contaminated land officer