Contaminated Land

Contaminated land has a precise statutory definition. Section 78A(2) of the Environmental Protection Act 1990 provides that '"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) significant pollution of controlled waters is being caused or there is a significant possibility of such pollution being caused.' Local authorities determining whether land meets that test must act in accordance with statutory guidance issued by the Secretary of State.

This Part 2A regime is a risk-based system rather than a blanket ban on contaminated sites: gov.uk guidance confirms that development can proceed once contamination issues have been assessed, noting that early engagement with 'the local planning and environmental health departments, particularly if the land is determined as contaminated land under' Part 2A 'will clarify what assessment is needed to support their proposal.' The Environment Agency has an enhanced interest in the more serious cases: it 'will also have an interest in the case of ‘special sites’ designated under Part 2A of the Environmental Protection Act 1990 and all sites where there is a risk of pollution to controlled waters,' where remediation must meet its requirements.