Publications
Contaminated Land Update
15 February 2012
Changes to the Contaminated Land Regime, an increased focus on sustainable remediation and a reprieve for land remediation tax relief: all covered below to give a brief update on the latest regulatory and industry developments for anyone involved in the development of brownfield land.
Helping clients in house-building, commercial development, transport, finance, utilities, infrastructure, waste and renewable energy, Osborne Clarke's Environment & Energy team are leading legal experts on contaminated land and pollution.
1. Changes to the Contaminated Land Regime
Revised contaminated land regulations and guidance were laid before Parliament on 7 February 2012. These regulations are expected to come into force on 6 April 2012 with the guidance following soon after.
The current regulations (set out in Part IIA Environmental Protection Act 1990) which have been in place since 2000 are considered to be largely fit for purpose. The main change is the introduction of a new test for the water part of the definition of contaminated land. Under the new regime regulators will now need to show that there is significant water pollution or a significant risk of significant water pollution before a site is designated as contaminated land. This is a higher threshold than the current test of pollution of controlled waters is being, or is likely to be, caused.
The new guidance however is expected to make more of an impact in streamlining the current process, placing a firmer focus on prioritising high risk sites with the net effect of reducing costs in dealing with and making it more straightforward to develop brownfield land. However, the new guidance has already received public criticism for watering down current health risk assessments, minimising pre-development treatment and for making it easier for developers to build on contaminated land.
Despite the message that the new regime will be more user-friendly and more high-risk focused, DEFRA reiterates that the new regime will, like the old regime, be highly precautionary.
In short the new guidance is intended to be more user-friendly and to reduce regulatory uncertainty and inconsistency as to what constitutes contaminated land. All of this is good news for companies which are developing brownfield sites, as ultimately the improved guidance should have a positive knock-on effect on clean-up and transactional costs and also on land values.
2. Sustainable remediation for sustainable development
A presumption in favour of 'sustainable development' in the draft National Planning Policy Framework has become headline news in the last few months. What may have gone un-noticed is the impact the presumption may have on the way brownfield land is remediated in the UK.
Since its introduction in 2007 the Sustainable Remediation Forum UK (SuRF-UK), a collaboration of regulators, industry experts, academics and consultants set up by CL:AIRE* to progress the UK understanding of 'sustainable remediation', has not fully come to the fore. However, with the new planning presumption and the added advantage of remediation cost savings, risk-based sustainable remediation is increasingly replacing the tried and tested (and more expensive and intrusive) method of undertaking a complete clean-up.
SuRF-UK's contribution to this move towards sustainable clean-up is its 'A Framework for Assessing the Sustainability of Soil and Groundwater Remediation' (March 2010) (the Framework), which clarifies what 'sustainable remediation' is and how to evaluate it under a detailed set of indicators. It sets out, for the first time, the essential link between the principles of sustainable development and the criteria (environmental, social and economic) for selecting optimum land use design with sustainable remediation strategies and treatments. The Framework is considered to be a valuable addition to best practice guidance on risk management of land contamination.
Although adhering to the Framework will not guarantee regulatory approval of a scheme, it has been indicated by CL:AIRE that consideration of the principles in the Framework will be looked upon favourably by regulators. Used carefully the Framework is likely to become a key tool to assist in reducing clean-up costs, adhering to regulations and guidance and complying with new planning rules.
3. Land remediation tax relief to stay
The Government caused an unwelcome stir when late last year it proposed to abolish land remediation tax relief, however it has now decided that land remediation tax relief should stay.
Land remediation tax relief offers investors a 150% tax break on expenditure involved in decontaminating land blighted by contamination.
The decision reversal follows industry responses to the Government's consultation launched last May:
"the Government has considered the responses and decided that removal of this relief would risk undermining the Government’s plans to support the housing and construction sectors through planning reforms and the release of large areas of publicly owned land for development."
* What is CL:AIRE?
CL:AIRE is an independent not-for-profit organisation established in 1999 to stimulate the regeneration of contaminated land in the UK by raising awareness of, and confidence in, practical and sustainable remediation technologies. CL:AIRE published its 'Definition of Waste: Development Industry Code of Practice' ("CoP") which is applied by the EA in waste regulatory decisions in England and Wales. The EA's associated regulatory position statement means that operators working to the CoP can, under certain circumstances, make the decision that materials arising on site need not be considered waste.
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