Land Contamination

Diggers

 

Description of service

Amber Valley Borough Council have two areas of responsibility for land pollution. These are:

  • Investigate potentially contaminated land

and

  • Ensure that developers investigate any potentially contaminated land that may be subject of a planning application or a planning permission.

Contaminated Land, Potentially Contaminated Land and Land Affected by Contamination.

The terms Contaminated Land, Potentially Contaminated Land and Land Affected by Contamination may appear to have the same meanings, but in terms of the legislation they have very different meanings.

Contaminated Land.

This is defined by section 78A(2) of the Environmental Protection Act 1990 and relates solely to sites that have been investigated by the Council in accordance with the Contaminated Land (England) (Amendment) Regulations 2012 (http://www.legislation.gov.uk/uksi/2012/263/made).  A site must first be investigated and then 'Determined' by the Council before it is formally recognised as contaminated land.  This legislation aims to address the legacy of land contaminated by historic activities.  

Any contaminated land which also fits the description of a 'Special Site' must be 'Designated' as such by the Council.  If the Environment Agency agrees with the 'Designation', they become the enforcement authority for the site; if the Environment Agency disagrees with the 'Designation', the matter is then determined by a Central Government-appointed inspector.

Potentially Contaminated Land.

This is land that the local authority believes may fit the definition of contaminated land, and requires further investigation. Investigations required to determine a site as contaminated land are lengthy and complex, therefore local authorities must therefore take a strategic approach to the identification of land which merits detailed individual inspection.

This approach should:

(a) be rational, ordered and efficient;

(b) be proportionate to the seriousness of any actual or potential risk;

(c) seek to ensure that the most pressing and serious problems are located first;

(d) ensure that resources are concentrated on investigating in areas where the authority is most likely to identify contaminated land; and

(e) ensure that the Council efficiently identifies requirements for the detailed inspection of particular areas of land.

Land Affected by Contamination.

The National Planning Policy Framework (NPPF) requires the Council to ensure its planning policies are capable of "…preventing both new and existing development from contributing to or being put at unacceptable risk from, or being adversely affected by unacceptable levels of soil….remediating and mitigating despoiled, degraded, derelict, contaminated and unstable land, where appropriate."

The NNPF can be found at:( https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/6077/2116950.pdf)

More information can be found in the Council's Strategy for Inspection of Contaminated Land, and in the following FAQs.

Frequently Asked Questions About Contaminated Land, Potentially Contaminated Land and Land Affected by Contamination.

How can I find out if the land is contaminated land?

A public register held by the Council in accordance with Section 78(R) of the Environmental Protection Act 1990 is available. It records information on sites that have been formally determined as contaminated land and have been subject to a remediation statement, a remediation agreement or a remediation notice. The register will also record the 'Designation' of Special Sites. Therefore it is not a register of contaminated land, it is a register of the actions taken, or proposed to be taken, in order to remediate contaminated land.

The public register can be accessed from the Contaminated Land web page.

An enquiry to the Council's Local Land Charges section, as part of a land search, which is normally carried out as part of a property transaction, would also confirm if the subject property was on land that had been formally determined as contaminated land.

Neither the public register or the Local Land Charges enquires will offer information regarding potentially contaminated land sites. See the paragraphs below, for information on such sites.

How can I find out if the land is potentially contaminated?

Most often land is considered to be potentially contaminated land due to its former uses. Therefore any source of information that provides a history of a site can give an indication as to whether the site could fit the definition of contaminated land. Such sources could include historic maps, trade directories, and local history texts, and may be available from the library service, county archives and the Internet.

To obtain information from the Council about whether land is potentially contaminated you should request a site-specific search.

To find out what sites the Council are considering as potential contaminated land in a specific locality you can write and request for a site search to be undertaken by the Council's Environment Unit.

The Council will make site-specific environmental information available in accordance with the Environmental Information Regulations 2004. A disclaimer is generally added to the written response making it clear that the information provided is only that available to the Council at that time, and comes from various sources.

A site-specific search should be addressed to:

Environment Unit (Operations)
Town Hall
Ripley
Derbyshire
DE5 3BT

And should:

  • Contain a map clearly marking the boundary of the land under question.
  • Be reasonable and specific in the questions asked e.g. "is the council aware of any land within 250 metres of the site which could be considered potentially contaminated?"
  • If the search provides no further information this should not be taken to mean that the site is free from contamination. If you still require further advice the Association of Geotechnical and Geoenvironmental Specialists have produced a helpful leaflet entitled Information for Purchasers or Owners of Potentially Contaminated Land, which offers advice and sources of further information.

Land Affected by Contamination and the Planning Regime.

When would the Council put a planning condition on a site?

The Council may attach a planning condition where a site has a known, or suspected, potentially contaminative history.

Will the Council recommend a consultant?

No. please see the Information for Purchasers or Owners of Potentially Contaminated Land Hyperlink.

What will happen if I do not submit a desktop study with my planning application?

If you do not submit a detailed desktop study on the site with your planning application and your planning consent is granted, it is likely that a planning condition will be attached requiring you to submit these details before you commence development of the site. The condition will not be discharged until the Council is satisfied with the information provided. In certain circumstances the Council may be unable to grant permission until a satisfactory site investigation has been carried out.

Who will the Council consult with when I submit my planning application?

The Council will consult various statutory bodies including the Environment Agency (EA) and other departments within the Council including the Environment Unit. Other consultees may include English Nature, English Heritage and the Sites and Monuments Record (SMR) at Derbyshire County Council in accordance with Planning Policy Guidance 16 (PPG 16) Archaeology and Planning, to protect the historic environment, to protect the historic environment. They may also refer to Planning Policy Statement 9 Biodiversity and Geological Conservation and PPG 15 Planning and Historic Environment.

When do the EA get involved in the planning process in relation to contaminated land?

The Council will consult the EA on matters for which the agency has a regulatory responsibility such as:

  • Where pollution of surface or groundwater is involved.
  • Where the water environment is at risk of pollution.
  • Where an application is within a flood-plain area.
  • Where the development is on a closed landfill or within 250 metres of a closed or active landfill.

A site assessment was carried out in the past, can I still use this?

Possibly, but it should be noted that guidance and the standards applied to site investigations are constantly being updated therefore the assessment may need to be reviewed or expanded in line with the current guidance.

What would be expected from a site investigation?

It is expected that the relevant guidance and British Standards are followed. A good desktop study should identify the potential source of contamination and industry profiles should aid in this and identify what may be at site, this though is not an exhaustive list. Any intrusive investigation and associated analysis should account for this information.

The following booklet, entitled A Guide For Submitting Planning Application For Land That May Be Contaminated, includes advice on the requirements of a site investigation. An excellent source of information and guidance can be found in the report Guidance for the Safe Development of Housing on Land Affected by Contamination.

In 2012, we dealt with 50 contaminated land enquiries and gave advice on 52 planning applications.

Last updated: September 2013

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