Contaminated Land changes – the good news and the bad
The Good News
The Contaminated Land Regime is going to be simplified. At present any water pollution, no matter how trivial, could result in a designation. That seems unfair, so two changes are afoot.
The first is that only “significant” pollution may trigger a designation (which echoes the “significant harm” required elsewhere under the regime).
The second is that the definition of groundwater is being changed. You’ll need to better appreciate where, vertically, the groundwater is being polluted, because unless it’s in the “saturated zone” (i.e. within the water table, and below), then any such pollution will be irrelevant for contaminated land purposes. So any pollution, even “significant” pollution, within the so-called soil waters cannot result in a designation.
The Bad News
But don’t get excited yet, because the law isn’t in force. In England & Wales these changes have been on the statute book since 2003, but the Government won’t bring them into force until it has prepared detailed Guidance. In Scotland, draft Regulations and draft Guidance have been issued, but it may still be several months before they become law.
Also, will any of this really make much difference? After all, none of the designations to date have arisen out of trivial pollution, and it was always going to be unlikely that the regulators would waste their resources pursuing these.
So, it may be one less thing for developers to worry about, but here’s the final bit of bad news: although “trivial” water pollution may become irrelevant for contaminated land purposes, it’s still a criminal offence, and regulated under a variety of different legal regimes in addition to contaminated land. One less box to tick maybe, but don’t forget to tick the others too.
FOR FURTHER INFORMATION PLEASE CONTACT: VINCENT BROWN
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