Office of Public Sector Information
After section 78 of the [1990 c. 43.] Environmental Protection Act 1990 there shall be inserted—
(1) The following provisions have effect for the interpretation of this Part.
(2) “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) pollution of controlled waters is being, or is likely to be, caused;
and, in determining whether any land appears to be such land, a local authority shall, subject to subsection (5) below, act in accordance with guidance issued by the Secretary of State in accordance with section 78YA below with respect to the manner in which that determination is to be made.
(3) A “special site” is any contaminated land—
(a) which has been designated as such a site by virtue of section 78C(7) or 78D(6) below; and
(b) whose designation as such has not been terminated by the appropriate Agency under section 78Q(4) below.
(4) “Harm” means harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property.
(5) The questions—
(a) what harm is to be regarded as “significant”,
(b) whether the possibility of significant harm being caused is “significant”,
(c) whether pollution of controlled waters is being, or is likely to be caused,
shall be determined in accordance with guidance issued for the purpose by the Secretary of State in accordance with section 78YA below.
(6) Without prejudice to the guidance that may be issued under subsection (5) above, guidance under paragraph (a) of that subsection may make provision for different degrees of importance to be assigned to, or for the disregard of,—
(a) different descriptions of living organisms or ecological systems;
(b) different descriptions of places; or
(c) different descriptions of harm to health or property, or other interference;
and guidance under paragraph (b) of that subsection may make provision for different degrees of possibility to be regarded as “significant” (or as not being “significant”) in relation to different descriptions of significant harm.
(7) “Remediation” means—
(a) the doing of anything for the purpose of assessing the condition of—
(i) the contaminated land in question;
(ii) any controlled waters affected by that land; or
(iii) any land adjoining or adjacent to that land;
(b) the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land or waters for the purpose—
(i) of preventing or minimising, or remedying or mitigating the effects of, any significant harm, or any pollution of controlled waters, by reason of which the contaminated land is such land; or
(ii) of restoring the land or waters to their former state; or
(c) the making of subsequent inspections from time to time for the purpose of keeping under review the condition of the land or waters;
and cognate expressions shall be construed accordingly.
(8) Controlled waters are “affected by” contaminated land if (and only if) it appears to the enforcing authority that the contaminated land in question is, for the purposes of subsection (2) above, in such a condition, by reason of substances in, on or under the land, that pollution of those waters is being, or is likely to be caused.
(9) The following expressions have the meaning respectively assigned to them—
“the appropriate Agency” means—
in relation to England and Wales, the Environment Agency;
in relation to Scotland, the Scottish Environment Protection Agency;
“appropriate person” means any person who is an appropriate person, determined in accordance with section 78F below, to bear responsibility for any thing which is to be done by way of remediation in any particular case;
“charging notice” has the meaning given by section 78P(3)(b) below;
“controlled waters”—
in relation to England and Wales, has the same meaning as in Part III of the [1991 c. 57.] Water Resources Act 1991; and
in relation to Scotland, has the same meaning as in section 30A of the [1974 c. 40.] Control of Pollution Act 1974;
“creditor” has the same meaning as in the [1970 c. 35.] Conveyancing and Feudal Reform (Scotland) Act 1970;
“enforcing authority” means—
in relation to a special site, the appropriate Agency;
in relation to contaminated land other than a special site, the local authority in whose area the land is situated;
“heritable security” has the same meaning as in the [1970 c. 35.] Conveyancing and Feudal Reform (Scotland) Act 1970;
“local authority” in relation to England and Wales means—
any unitary authority;
any district council, so far as it is not a unitary authority;
the Common Council of the City of London and, as respects the Temples, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple respectively;
and in relation to Scotland means a council for an area constituted under section 2 of the [1994 c. 39.] Local Government etc. (Scotland) Act 1994;
“notice” means notice in writing;
“notification” means notification in writing;
“owner”, in relation to any land in England and Wales, means a person (other than a mortgagee not in possession) who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let;
“owner”, in relation to any land in Scotland, means a person (other than a creditor in a heritable security not in possession of the security subjects) for the time being entitled to receive or who would, if the land were let, be entitled to receive, the rents of the land in connection with which the word is used and includes a trustee, factor, guardian or curator and in the case of public or municipal land includes the persons to whom the management of the land is entrusted;
“pollution of controlled waters” means the entry into controlled waters of any poisonous, noxious or polluting matter or any solid waste matter;
“prescribed” means prescribed by regulations;
“regulations” means regulations made by the Secretary of State;
“remediation declaration” has the meaning given by section 78H(6) below;
“remediation notice” has the meaning given by section 78E(1) below;
“remediation statement” has the meaning given by section 78H(7) below;
“required to be designated as a special site” shall be construed in accordance with section 78C(8) below;
“substance” means any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour;
“unitary authority” means—
the council of a county, so far as it is the council of an area for which there are no district councils;
the council of any district comprised in an area for which there is no county council;
the council of a London borough;
the council of a county borough in Wales.
(1) Every local authority shall cause its area to be inspected from time to time for the purpose—
(a) of identifying contaminated land; and
(b) of enabling the authority to decide whether any such land is land which is required to be designated as a special site.
(2) In performing its functions under subsection (1) above a local authority shall act in accordance with any guidance issued for the purpose by the Secretary of State in accordance with section 78YA below.
(3) If a local authority identifies any contaminated land in its area, it shall give notice of that fact to—
(a) the appropriate Agency;
(b) the owner of the land;
(c) any person who appears to the authority to be in occupation of the whole or any part of the land; and
(d) each person who appears to the authority to be an appropriate person;
and any notice given under this subsection shall state by virtue of which of paragraphs (a) to (d) above it is given.
(4) If, at any time after a local authority has given any person a notice pursuant to subsection (3)(d) above in respect of any land, it appears to the enforcing authority that another person is an appropriate person, the enforcing authority shall give notice to that other person—
(a) of the fact that the local authority has identified the land in question as contaminated land; and
(b) that he appears to the enforcing authority to be an appropriate person.
(1) If at any time it appears to a local authority that any contaminated land in its area might be land which is required to be designated as a special site, the authority—
(a) shall decide whether or not the land is land which is required to be so designated; and
(b) if the authority decides that the land is land which is required to be so designated, shall give notice of that decision to the relevant persons.
(2) For the purposes of this section, “the relevant persons” at any time in the case of any land are the persons who at that time fall within paragraphs (a) to (d) below, that is to say—
(a) the appropriate Agency;
(b) the owner of the land;
(c) any person who appears to the local authority concerned to be in occupation of the whole or any part of the land; and
(d) each person who appears to that authority to be an appropriate person.
(3) Before making a decision under paragraph (a) of subsection (1) above in any particular case, a local authority shall request the advice of the appropriate Agency, and in making its decision shall have regard to any advice given by that Agency in response to the request.
(4) If at any time the appropriate Agency considers that any contaminated land is land which is required to be designated as a special site, that Agency may give notice of that fact to the local authority in whose area the land is situated.
(5) Where notice under subsection (4) above is given to a local authority, the authority shall decide whether the land in question—
(a) is land which is required to be designated as a special site, or
(b) is not land which is required to be so designated,
and shall give notice of that decision to the relevant persons.
(6) Where a local authority makes a decision falling within subsection (1)(b) or (5)(a) above, the decision shall, subject to section 78D below, take effect on the day after whichever of the following events first occurs, that is to say—
(a) the expiration of the period of twenty-one days beginning with the day on which the notice required by virtue of subsection (1)(b) or, as the case may be, (5)(a) above is given to the appropriate Agency; or
(b) if the appropriate Agency gives notification to the local authority in question that it agrees with the decision, the giving of that notification;
and where a decision takes effect by virtue of this subsection, the local authority shall give notice of that fact to the relevant persons.
(7) Where a decision that any land is land which is required to be designated as a special site takes effect in accordance with subsection (6) above, the notice given under subsection (1)(b) or, as the case may be, (5)(a) above shall have effect, as from the time when the decision takes effect, as the designation of that land as such a site.
(8) For the purposes of this Part, land is required to be designated as a special site if, and only if, it is land of a description prescribed for the purposes of this subsection.
(9) Regulations under subsection (8) above may make different provision for different cases or circumstances or different areas or localities and may, in particular, describe land by reference to the area or locality in which it is situated.
(10) Without prejudice to the generality of his power to prescribe any description of land for the purposes of subsection (8) above, the Secretary of State, in deciding whether to prescribe a particular description of contaminated land for those purposes, may, in particular, have regard to—
(a) whether land of the description in question appears to him to be land which is likely to be in such a condition, by reason of substances in, on or under the land that—
(i) serious harm would or might be caused, or
(ii) serious pollution of controlled waters would be, or would be likely to be, caused; or
(b) whether the appropriate Agency is likely to have expertise in dealing with the kind of significant harm, or pollution of controlled waters, by reason of which land of the description in question is contaminated land.
(1) In any case where—
(a) a local authority gives notice of a decision to the appropriate Agency pursuant to subsection (1)(b) or (5)(b) of section 78C above, but
(b) before the expiration of the period of twenty-one days beginning with the day on which that notice is so given, that Agency gives the local authority notice that it disagrees with the decision, together with a statement of its reasons for disagreeing,
the authority shall refer the decision to the Secretary of State and shall send to him a statement of its reasons for reaching the decision.
(2) Where the appropriate Agency gives notice to a local authority under paragraph (b) of subsection (1) above, it shall also send to the Secretary of State a copy of the notice and of the statement given under that paragraph.
(3) Where a local authority refers a decision to the Secretary of State under subsection (1) above, it shall give notice of that fact to the relevant persons.
(4) Where a decision of a local authority is referred to the Secretary of State under subsection (1) above, he—
(a) may confirm or reverse the decision with respect to the whole or any part of the land to which it relates; and
(b) shall give notice of his decision on the referral—
(i) to the relevant persons; and
(ii) to the local authority.
(5) Where a decision of a local authority is referred to the Secretary of State under subsection (1) above, the decision shall not take effect until the day after that on which the Secretary of State gives the notice required by subsection (4) above to the persons there mentioned and shall then take effect as confirmed or reversed by him.
(6) Where a decision which takes effect in accordance with subsection (5) above is to the effect that at least some land is land which is required to be designated as a special site, the notice given under subsection (4)(b) above shall have effect, as from the time when the decision takes effect, as the designation of that land as such a site.
(7) In this section “the relevant persons” has the same meaning as in section 78C above.
(1) In any case where—
(a) any land has been designated as a special site by virtue of section 78C(7) or 78D(6) above, or
(b) a local authority has identified any contaminated land (other than a special site) in its area,
the enforcing authority shall, in accordance with such procedure as may be prescribed and subject to the following provisions of this Part, serve on each person who is an appropriate person a notice (in this Part referred to as a “remediation notice”) specifying what that person is to do by way of remediation and the periods within which he is required to do each of the things so specified.
(2) Different remediation notices requiring the doing of different things by way of remediation may be served on different persons in consequence of the presence of different substances in, on or under any land or waters.
(3) Where two or more persons are appropriate persons in relation to any particular thing which is to be done by way of remediation, the remediation notice served on each of them shall state the proportion, determined under section 78F(7) below, of the cost of doing that thing which each of them respectively is liable to bear.
(4) The only things by way of remediation which the enforcing authority may do, or require to be done, under or by virtue of this Part are things which it considers reasonable, having regard to—
(a) the cost which is likely to be involved; and
(b) the seriousness of the harm, or pollution of controlled waters, in question.
(5) In determining for any purpose of this Part—
(a) what is to be done (whether by an appropriate person, the enforcing authority or any other person) by way of remediation in any particular case,
(b) the standard to which any land is, or waters are, to be remediated pursuant to the notice, or
(c) what is, or is not, to be regarded as reasonable for the purposes of subsection (4) above,
the enforcing authority shall have regard to any guidance issued for the purpose by the Secretary of State.
(6) Regulations may make provision for or in connection with—
(a) the form or content of remediation notices; or
(b) any steps of a procedural nature which are to be taken in connection with, or in consequence of, the service of a remediation notice.
(1) This section has effect for the purpose of determining who is the appropriate person to bear responsibility for any particular thing which the enforcing authority determines is to be done by way of remediation in any particular case.
(2) Subject to the following provisions of this section, any person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land is an appropriate person.
(3) A person shall only be an appropriate person by virtue of subsection (2) above in relation to things which are to be done by way of remediation which are to any extent referable to substances which he caused or knowingly permitted to be present in, on or under the contaminated land in question.
(4) If no person has, after reasonable inquiry, been found who is by virtue of subsection (2) above an appropriate person to bear responsibility for the things which are to be done by way of remediation, the owner or occupier for the time being of the contaminated land in question is an appropriate person.
(5) If, in consequence of subsection (3) above, there are things which are to be done by way of remediation in relation to which no person has, after reasonable inquiry, been found who is an appropriate person by virtue of subsection (2) above, the owner or occupier for the time being of the contaminated land in question is an appropriate person in relation to those things.
(6) Where two or more persons would, apart from this subsection, be appropriate persons in relation to any particular thing which is to be done by way of remediation, the enforcing authority shall determine in accordance with guidance issued for the purpose by the Secretary of State whether any, and if so which, of them is to be treated as not being an appropriate person in relation to that thing.
(7) Where two or more persons are appropriate persons in relation to any particular thing which is to be done by way of remediation, they shall be liable to bear the cost of doing that thing in proportions determined by the enforcing authority in accordance with guidance issued for the purpose by the Secretary of State.
(8) Any guidance issued for the purposes of subsection (6) or (7) above shall be issued in accordance with section 78YA below.
(9) A person who has caused or knowingly permitted any substance (“substance A”) to be in, on or under any land shall also be taken for the purposes of this section to have caused or knowingly permitted there to be in, on or under that land any substance which is there as a result of a chemical reaction or biological process affecting substance A.
(10) A thing which is to be done by way of remediation may be regarded for the purposes of this Part as referable to the presence of any substance notwithstanding that the thing in question would not have to be done—
(a) in consequence only of the presence of that substance in any quantity; or
(b) in consequence only of the quantity of that substance which any particular person caused or knowingly permitted to be present.
(1) A remediation notice may require an appropriate person to do things by way of remediation, notwithstanding that he is not entitled to do those things.
(2) Any person whose consent is required before any thing required by a remediation notice may be done shall grant, or join in granting, such rights in relation to any of the relevant land or waters as will enable the appropriate person to comply with any requirements imposed by the remediation notice.
(3) Before serving a remediation notice, the enforcing authority shall reasonably endeavour to consult every person who appears to the authority—
(a) to be the owner or occupier of any of the relevant land or waters, and
(b) to be a person who might be required by subsection (2) above to grant, or join in granting, any rights,
concerning the rights which that person may be so required to grant.
(4) Subsection (3) above shall not preclude the service of a remediation notice in any case where it appears to the enforcing authority that the contaminated land in question is in such a condition, by reason of substances in, on or under the land, that there is imminent danger of serious harm, or serious pollution of controlled waters, being caused.
(5) A person who grants, or joins in granting, any rights pursuant to subsection (2) above shall be entitled, on making an application within such period as may be prescribed and in such manner as may be prescribed to such person as may be prescribed, to be paid by the appropriate person compensation of such amount as may be determined in such manner as may be prescribed.
(6) Without prejudice to the generality of the regulations that may be made by virtue of subsection (5) above, regulations by virtue of that subsection may make such provision in relation to compensation under this section as may be made by regulations by virtue of subsection (4) of section 35A above in relation to compensation under that section.
(7) In this section, “relevant land or waters” means—
(a) the contaminated land in question;
(b) any controlled waters affected by that land; or
(c) any land adjoining or adjacent to that land or those waters.
(1) Before serving a remediation notice, the enforcing authority shall reasonably endeavour to consult—
(a) the person on whom the notice is to be served,
(b) the owner of any land to which the notice relates,
(c) any person who appears to that authority to be in occupation of the whole or any part of the land, and
(d) any person of such other description as may be prescribed,
concerning what is to be done by way of remediation.
(2) Regulations may make provision for, or in connection with, steps to be taken for the purposes of subsection (1) above.
(3) No remediation notice shall be served on any person by reference to any contaminated land during any of the following periods, that is to say—
(a) the period—
(i) beginning with the identification of the contaminated land in question pursuant to section 78B(1) above, and
(ii) ending with the expiration of the period of three months beginning with the day on which the notice required by subsection (3)(d) or, as the case may be, (4) of section 78B above is given to that person in respect of that land;
(b) if a decision falling within paragraph (b) of section 78C(1) above is made in relation to the contaminated land in question, the period beginning with the making of the decision and ending with the expiration of the period of three months beginning with—
(i) in a case where the decision is not referred to the Secretary of State under section 78D above, the day on which the notice required by section 78C(6) above is given, or
(ii) in a case where the decision is referred to the Secretary of State under section 78D above, the day on which he gives the notice required by subsection (4)(b) of that section;
(c) if the appropriate Agency gives a notice under subsection (4) of section 78C above to a local authority in relation to the contaminated land in question, the period beginning with the day on which that notice is given and ending with the expiration of the period of three months beginning with—
(i) in a case where notice is given under subsection (6) of that section, the day on which that notice is given;
(ii) in a case where the authority makes a decision falling within subsection (5)(b) of that section and the appropriate Agency fails to give notice under paragraph (b) of section 78D(1) above, the day following the expiration of the period of twenty-one days mentioned in that paragraph; or
(iii) in a case where the authority makes a decision falling within section 78C(5)(b) above which is referred to the Secretary of State under section 78D above, the day on which the Secretary of State gives the notice required by subsection (4)(b) of that section.
(4) Neither subsection (1) nor subsection (3) above shall preclude the service of a remediation notice in any case where it appears to the enforcing authority that the land in question is in such a condition, by reason of substances in, on or under the land, that there is imminent danger of serious harm, or serious pollution of controlled waters, being caused.
(5) The enforcing authority shall not serve a remediation notice on a person if and so long as any one or more of the following conditions is for the time being satisfied in the particular case, that is to say—
(a) the authority is satisfied, in consequence of section 78E(4) and (5) above, that there is nothing by way of remediation which could be specified in a remediation notice served on that person;
(b) the authority is satisfied that appropriate things are being, or will be, done by way of remediation without the service of a remediation notice on that person;
(c) it appears to the authority that the person on whom the notice would be served is the authority itself; or
(d) the authority is satisfied that the powers conferred on it by section 78N below to do what is appropriate by way of remediation are exercisable.
(6) Where the enforcing authority is precluded by virtue of section 78E(4) or (5) above from specifying in a remediation notice any particular thing by way of remediation which it would otherwise have specified in such a notice, the authority shall prepare and publish a document (in this Part referred to as a “remediation declaration”) which shall record—
(a) the reasons why the authority would have specified that thing; and
(b) the grounds on which the authority is satisfied that it is precluded from specifying that thing in such a notice.
(7) In any case where the enforcing authority is precluded, by virtue of paragraph (b), (c) or (d) of subsection (5) above, from serving a remediation notice, the responsible person shall prepare and publish a document (in this Part referred to as a “remediation statement”) which shall record—
(a) the things which are being, have been, or are expected to be, done by way of remediation in the particular case;
(b) the name and address of the person who is doing, has done, or is expected to do, each of those things; and
(c) the periods within which each of those things is being, or is expected to be, done.
(8) For the purposes of subsection (7) above, the “responsible person” is—
(a) in a case where the condition in paragraph (b) of subsection (5) above is satisfied, the person who is doing or has done, or who the enforcing authority is satisfied will do, the things there mentioned; or
(b) in a case where the condition in paragraph (c) or (d) of that subsection is satisfied, the enforcing authority.
(9) If a person who is required by virtue of subsection (8)(a) above to prepare and publish a remediation statement fails to do so within a reasonable time after the date on which a remediation notice specifying the things there mentioned could, apart from subsection (5) above, have been served, the enforcing authority may itself prepare and publish the statement and may recover its reasonable costs of doing so from that person.
(10) Where the enforcing authority has been precluded by virtue only of subsection (5) above from serving a remediation notice on an appropriate person but—
(a) none of the conditions in that subsection is for the time being satisfied in the particular case, and
(b) the authority is not precluded by any other provision of this Part from serving a remediation notice on that appropriate person,
the authority shall serve a remediation notice on that person; and any such notice may be so served without any further endeavours by the authority to consult persons pursuant to subsection (1) above, if and to the extent that that person has been consulted pursuant to that subsection concerning the things which will be specified in the notice.
(1) This section applies where any land is contaminated land by virtue of paragraph (b) of subsection (2) of section 78A above (whether or not the land is also contaminated land by virtue of paragraph (a) of that subsection).
(2) Where this section applies, no remediation notice given in consequence of the land in question being contaminated land shall require a person who is an appropriate person by virtue of section 78F(4) or (5) above to do anything by way of remediation to that or any other land, or any waters, which he could not have been required to do by such a notice had paragraph (b) of section 78A(2) above (and all other references to pollution of controlled waters) been omitted from this Part.
Environment Act 1995