Contaminated Land

In general, land may be described as contaminated if there are substances present on, in or under it that may pose a threat to human health. However, the Environmental Protection Act 1990 gives a strict definition of what is considered as ‘contaminated land’ in legal terms.

It is defined as: ‘any land which appears to the local authority in whose area it is to be situated to be in such 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 harm being caused; or
(b) pollution of controlled waters is being, or is likely to be caused.’

A site may have hazardous substances in, on or under it and yet not be considered contaminated land. The term ‘land contamination’ may be used to describe the site conditions. Sites of this nature will not have been identified as causing significant harm or the possibility of significant harm.’

Many previous uses of land can be described as potentially contaminative land uses. This does not mean that a site is automatically ‘contaminated land’ or that the site has land contamination, but on the site it is considered likely that this issue should be looked at if there is a change from that land use. Through the planning process we ensure that potentially contaminated sites are looked at prior to development so that if the site requires cleaning up, it is done to an appropriate standard.

The risk to human health from a contaminated site is dependent on the site conditions and the nature of the contamination. In general, consideration is taken for the following exposure routes; breathing in dust or gas, consumption of contaminated water or soil, through skin contact with contaminated soil or eating food plants grown in contaminated soil and the presence of combustible atmospheres. It is unlikely that all exposure routes will be applicable for every site or contaminant.

There is no easy answer to this question. If the land has been used for an industrial activity or used for the landfilling of waste then contamination may be present. There are some simple checks that can be made to assess whether a site is likely to be contaminated. The government has issued guidance to identify potentially contaminative industries and information on these can be researched through the local Records Office or library. Additional information can be found by contacting a number of organisations or be collated on your behalf by some commercial companies.

Many sites have had precautions undertaken to investigate potential contamination and in some cases remediation to minimise risk. We hold a large volume of information contained in site investigation and remediation reports.

What information is available?
Any information held on our files, which has been provided as part of the Planning process and is part of the Public Planning file. A number of other documents and records of contamination issues are held on the files and may be available. Whilst the Department does hold a lot of information on potentially contaminated sites, there is no information held on the majority of sites. Whilst it is unlikely that many of these will be potentially contaminated, the absence of records confirming contamination do not signify that a particular site is free from contamination.

Is there a charge for requesting environmental information and how quickly can I expect a response?

Under the Environmental Information Regulations 2004 the local authority has 20 working days to provide any information held. As of 1 April; 2021 there is a charge for obtaining this information details are available on the environmental information page.

There are many sources of information that may be investigated if you wish to find out information about potential contamination of a site. A number of companies will undertake ‘environmental’ searches on your behalf and these are commonly used by Solicitors during conveyancing. It is important to know what information is being looked at during such searches, what information is not being considered and how to interpret the results. Always read the search results carefully and check the source.

In addition there are several other organisations that may hold information that is of interest. The Worcestershire County Council Records Office hold copies of historical maps, which may identify previous industrial land use.
WCC Records Office website

The Environment Agency hold a lot of information on a variety of subjects concerning contamination on their publication scheme.

There is a number of organisations and companies that offer information regarding contamination issues. Some of this is available free and some will charge. It is very important that you understand exactly what the information you are provided with actually tells you. Check the original source of the information.

For example: The government has issued guidance on industrial activities that may give rise to contamination. This does not mean that all firms undertaking such activities will contaminate, but that there is a potential for them to do so. When environmental searches are undertaken, the ‘potentially contaminative activities’ are often reported. These sites reported may have contamination, they may not, and it may have already been cleaned up.

If potential contamination has been raised during conveyance of a property the mortgage lender will want to be satisfied that contamination is not a real issue. Many solicitors undertake environmental searches to identify any potential problems. If contamination is raised as a concern, the source of the information should be investigated. It is advisable to chase up all possible sources of information. Whilst you may be keen to satisfy the mortgage lender, consideration should be taken for the issues that may be raised when you come to sell the property yourself if the sale goes ahead.