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Contaminated land in England UKELA Seminar, Belfast October 2011

Contaminated land in England UKELA Seminar, Belfast October 2011. Andrew Wiseman Head of Environmental Law. Contaminated land in England. Introduction Part 2A Planning The changes Where next?. Contaminated land in England. The structure Part 2A The legislation Statutory Guidance

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Contaminated land in England UKELA Seminar, Belfast October 2011

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  1. Contaminated land in England UKELA Seminar, BelfastOctober 2011 Andrew Wiseman Head of Environmental Law

  2. Contaminated land in England • Introduction • Part 2A • Planning • The changes • Where next?

  3. Contaminated land in England • The structure • Part 2A • The legislation • Statutory Guidance • Non statutory guidance

  4. Contaminated land in England • The legislation • Environmental Protection Act 1990 Part 2A • Environment Act 1995 s78A(2) “…. any land which appears to the local authority .… to be in such a condition, by reason of substances in, on or under the land, that .... significant harm is being caused or there is a significant possibility of such harm being caused”

  5. Contaminated land in England • Statutory Guidance • DEFRA Circular 01/2006 • Table A (Annex 3 Para A.26) • What harm is regarded as significant (in relation to human beings) • “Death, disease, serious injury ….”

  6. Contaminated land in England • Statutory Guidance • DEFRA Circular 01/2006 • Annex 3 Para A.28 • The Local Authority should take into account the following when looking at whether PoSH is SPoSH: • Nature & degree of harm • Susceptibility of the receptors • Timescale the harm may occur • Table B sets out conditions for SPoSH • An unacceptable intake

  7. Contaminated land in England • Non Statutory Guidance • Guidance on the Legal Definition of Contaminated Land (July 2008) “.. Local Authorities must …. Conduct a science-based risk assessment which takes account of toxicological information, and site-specific and local circumstances” (Para 23)

  8. Contaminated land in England • Government consultation • Responses have been analysed • Revised Statutory Guidance shortly? • Potentially in force by January 2012

  9. Contaminated land in England • Local Authority inspection duties • A strategic approach to risk assessment • GACs • Risk summaries • POSH and SPOSH • The traffic light test • Green • Amber / Green • Amber / Red • Red • Category 1 - 4

  10. Category 1 - 4 CATEGORY 1 SPOSH 2 POSH 3 Chosen by developers? New screening? 4 Current SGVs/GACs?

  11. Contaminated land in England • Remediation • More sustainable • Health impacts of remediation • Shorter and more focussed

  12. Contaminated land in England • Liability • No real changes • Class A (cause or knowingly permit) • Class B (current owner / occupier) • Orphan • Liability still there for landowners (current & former) • Some are excluded and liability can be apportioned

  13. Contaminated land in England • Where next? • No numbers • Onus on local authorities • Liability still there for landowners (current and former)

  14. Contaminated land in England • Planning • Under review (attack?) • Protection –v- localism –v- economic stimulation • NPPF –v- PPS23 • Shorter, more focussed? • Model planning conditions • Environmental Damage Regs

  15. Soil Framework Directive • Among other things it is intended that it will cover the identification & remediation of contaminated land • Negotiations continue on what it should contain • Potential impact for Part 2A are some years down the line

  16. Contact details Andrew Wiseman Head of Environmental Law andrew.wiseman@shlegal.com +44 (0)20 809 2528 +44 (0)79833 093 344

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