Soil Health Contents

2Contaminated land

8.In 2005 it was estimated that 325,000 sites in the UK are affected by some degree of contamination, covering an area of 300,000 hectares.20 Former factories, mines, steelworks, refineries and landfills have led to contamination by chemicals, heavy metals, tar, gases, asbestos and radioactive substances.21 For example, Figure 1 shows the concentration of lead in Britain’s topsoil.

Figure 1: Lead concentration in topsoil (Countryside Survey)

Contamination can also occur in greenfield land, for example as a result of agricultural pollution.22 From a statutory perspective, land is contaminated if it contains substances which could cause significant harm or pollute controlled waters.23 Untreated contamination may have a negative effect on public health. Research has found a statistically significant relationship between soil metal content and respiratory illnesses in Glasgow.24 Further research found a statistically significant relationship between self-reported poor health and wards with a high proportion of brownfield sites, even when controlling for socio-economic factors.25 Research is ongoing into the suspected link between persistent low-level soil contaminants and Primary Biliary Cirrhosis.26 Further research suggests that historic coastal landfills could be significant sources of contamination if they were to be flooded or eroded.27

9.Part 2A of the Environmental Protection Act 1990, enacted in 2000, provides a mechanism for cleaning up contaminated land which cannot or will not be dealt with through the planning system or other voluntary measures. Part 2A sets out how local authorities should identify and remediate contaminated land, and the legislation requires local authorities to produce written strategies setting out how they will carry out their duties.28

10.Under Part 2A, the key principle is that the polluter responsible for causing or knowingly permitting the contamination should pay for remediation. If the polluter cannot be found, then the current owner or occupier will be liable.29 In practice, however, Part 2A remediation is only funded by the original polluter in 9% of cases, and by the current owner or occupier in a further 8% of cases.30 So the cost of remediation under Part 2A falls on the public purse far more often than not. Howard Price said:

The Environmental Protection Act [was] supposed to make the polluter pay, which is fine. The trouble is that many of these polluters can no longer be found. Some of this contamination goes back hundreds of years, most of it for the last couple of centuries. The polluters are long gone. The next people on the list to be liable are the current occupiers who are often entirely innocent families without the means to do anything about this. In that case, the costs fall by default on the local authority. It is probably fair to say that the size of the scale of these costs was unexpected but it has run to tens of millions of pounds so far.31

11.Of all sites remediated between 2000 and 2013, it is estimated that 83% (72,000 sites) were dealt with through planning applications rather than through the Part 2A process described above. A further 7% (5,500 sites) were dealt with through Part 2A duties.32 However, we heard evidence suggesting that it is unwise to rely on the planning system to remediate all contamination. In noting that local authority action on contaminated land had declined, Dr Karen Johnson warned that a planning-only approach to clean-up may exacerbate inequality:

Local authorities taking positive action and going out and remediating [ … ] has dried up. It is only the planning system that can address those contaminated issues and, as I say, when we are in an economic downturn then they are not getting addressed. Even when they are getting addressed—[it is] in the high value sites, not the low value sites in lower socioeconomic status areas.33

Dr Johnson added that relying on the planning system leads to “low value, economically unviable sites for regeneration” not being remediated, so “we have a lot of pieces of wasteland in communities of lower socioeconomic status.”34

12.Howard Price (Chartered Institute of Environmental Health) noted that there is ambiguity in the National Planning Policy Framework about whose responsibility it is to set environmental standards in planning. Mr Price also expressed concerns that the planning guidance on this matter has reduced dramatically in the National Planning Policy Framework, and that this is being “exploited to some extent by developers and in the case of appeal-averse planning authorities”. He expressed concern that as a result, remediation through planning may not always leave sites entirely safe.35

Funding for remediation

13.In the past, Defra funding for clean-up of contamination has been available to local authorities in the form of contaminated land capital grants. This funding peaked at £17.5m in 2009/10 and fell to £2m in 2013/14. In December 2013 it was announced that the funding would be reduced to £0.5m in 2014 and then phased out from April 2017.36 In 2013/14, the most recent year for which data is available, 41 of 79 grants were approved, awarding £1.5m of the £5.8m requested. The average grant value was £38,000, and the largest grant was £383,000 for a project in Wakefield.37

14.Rory Stewart, Parliamentary Under Secretary of State at Defra, told us that the funding stream had never been intended to be permanent, and described it as an attempt to “pump-prime” councils bringing forward projects.38 He said:

The central government funding, the Defra funding, was designed as a top-up to the money that local government itself spends on doing this. This was designed as surge funding in order to help us clear some of the backlog, which allowed us to tackle over 100 key sites, but it was not designed as a replacement for the money that the local government itself spends on research into contaminated land and amelioration of contaminated land.39

However, this was not reflected in Defra’s correspondence at the time of the withdrawal. We were provided with correspondence from 2014 from the then Parliamentary Under Secretary Lord de Mauley, suggesting that the funding had not been regarded as temporary. In a letter to the Chartered Institute of Environmental Health, Lord de Mauley described the withdrawal as “regrettable, but necessary given current circumstances and departmental budget cuts”.40 In addition, the funding stream has been available in various forms since before the Environmental Protection Act was enacted in 2000,41 so a description of it as “temporary” does not seem apt.

15.After the announcement of funding withdrawal, Defra was asked in a written question whether it had assessed the potential impact on local authorities’ ability to meet their statutory duty under Part 2A. George Eustice, answering for Defra, said that no such assessment had been carried out:

Funding to support local authorities in fulfilling their statutory obligations under part 2A of the Environmental Protection Act 1990 remains in the form of the Revenue Support Grant. An assessment of the impact on local authorities of the withdrawal of the Contaminated Land Capital Grants Scheme has therefore not been undertaken.42

This reasoning matches Defra’s 2013 letter to local authorities announcing this change, which noted that “funding for local authorities to fulfil their statutory obligations under Part 2A [ … ] will continue to be provided through the Revenue Support Grant”.43

16.However, data suggests that the capital grant funding was crucial to Part 2A remediation, with 81% of Part 2A remediation being funded by Defra capital grants between 2000 and 2013. Polluters or current owners/occupiers funded 17% of Part 2A remediation, and less than 2% of cases are recorded as being remediated through “other public funding (e.g. local authority funding)”.44 This suggests that Revenue Support Grant funds have rarely been made available for Part 2A remediation. Howard Price also expressed doubt that Revenue Support Grant funding is used adequately for contaminated land remediation:

The trouble with that is that the amount that individual local authorities are allocated for this work is not disclosed to them and it is not ring-fenced, so they don’t know if they are getting what they should and many of my colleagues in local authorities say they never see a penny of it because it is siphoned off to somewhere else.45

17.Our witnesses expressed concern at the consequences of withdrawing the Contaminated Land Capital Grants Scheme. Prof Chris Collins (Soil Security Programme, University of Reading) said that it might affect the identification of contaminated sites:

[The] decision meant that a lot of the site identification that was occurring up to that point stopped [ … .] [Previously,] if you had a large site that was beyond the capability of a particular council they could bid for money to address that particular site. That has gone, so for potentially large sites where is the money coming from to remediate these? There has been a loss of expertise as well with councils under financial pressure. I know of at least one instance where one environmental control pollution officer is now serving four councils where he used to serve one.46

Prof Collins added that this decision puts people at risk because “sites are not being identified whereas they would have been in the past”.

18.Howard Price also said that the funding reductions have resulted in local authorities being unwilling to identify contaminated land:

Without the prospect of remediation being funded, it would frankly be a reckless local authority that determined a site was contaminated without having identified someone in one of the very small proportion of cases—the 17% of cases—who could actually pay for it. You don’t go along to someone’s home and say, “There is an unacceptable risk from the land in your garden but, sorry, we know you cannot pay but we cannot pay either”. It is a major block and it is making Part 2A virtually unworkable now. [ … ] I have certainly heard of local authorities where staff have been told not to find contaminated land because of the cost consequences.47

Rory Stewart told the Committee that he did not recognise this risk.48 However, Howard Price’s view is echoed in York Council’s 2016 contaminated land strategy. It states that one of its priorities is to “carry out detailed inspections of potentially contaminated sites as resources and service priorities allow”—but goes on to note that “no budget is available at present for this”. York adds that “we have had insufficient funds to undertake any investigations since [Defra’s capital grant funding was withdrawn]”.49

19.A recent survey of local authorities assessing the impact of revised statutory guidance for Part 2A yielded further concern about the withdrawal of the grant scheme. Two (anonymous) comments from this survey are below:

1. The recent cut of the capital grants scheme has effectively closed any work that will be undertaken on Part 2A since local authorities cannot be expected to investigate land and then be burdened with remediation costs and/or blight to land/property.50

2. I think the withdrawal of funding has taken the teeth out of the Part 2A regime. I have experience already of several authorities “parking” their strategic inspections due to lack of funding and in house expertise, and that is the easy/cheap bit! Without government funding I can’t see many detailed inspections being carried out as even if funding could be secured for a site investigation, the question of blame and liability is not something an already over stretched staff will want to deal with.51

Another respondent to the survey suggested that Part 2A “needs a dedicated funding stream to operate effectively”. A contaminated land officer working in the north of England raised the concern that the withdrawal of remediation funding, in diminishing Councils’ ability to “proactively identify and address legacy contamination”, might also have removed the deterrent to create new contaminated land in the future.52

20.A contaminated land officer also told us that the stringent process for identifying statutory contaminated land might also explain why it has been difficult for local authorities to identify sites:

In lay-terms, for land to be determined as statutory contaminated land (Part 2A) the Council has to prove, by investigation and risk assessment that there are actual significant adverse health or environmental effects, or a significant likelihood of significant adverse health or environmental effects, AND that there are no other means to address those risk AND that those measures do not give rise to any direct or indirect health or socio-economic impacts.—Phew! So much for the ‘precautionary principle’.53

21.We asked Rory Stewart, Parliamentary Under Secretary of State at Defra about the effects of withdrawing the capital grants. He emphasised that dealing with contaminated land is the responsibility of local authorities and not central Government:

The key thing to understand is that responsibility for contaminated land rests and has always rested with local authorities. It is true that the central government provided support over time to local authorities to encourage more action on contaminated land. That has been a programme where over 100 different key sites have been restored, but the decision of the Department is that that responsibility now needs to rest with the local authorities to prioritise them on the basis of their own cost benefit analysis.54

22.Defra’s Single Departmental Plan 2015–2020 contains the commitment to “invest £100m into environmental schemes to remediate contaminated land, restore important peatland habitats and increase woodland planting”.55 It has since emerged that less than 2% of this money will be made available for contaminated land—£1.9m over five years. Only £0.4m of this money will be made available to local authorities, and only in 2016/17.56

23.Defra’s decision to withdraw Capital Grant funding for contaminated land remediation has undermined councils’ ability to meet their statutory duty under the Environmental Protection Act. Despite this, Defra appears complacent about the issue. Although local authorities hold the statutory duty to remediate contaminated land under Part 2A, 83% of Part 2A projects between 2000 and 2013 relied on Defra’s Capital Grant Scheme for funding. With this scheme to be fully withdrawn from 2017, and in the context of wider financial pressure, we have heard evidence that local authorities are having difficulty meeting this duty, making Part 2A “virtually unworkable”. It is therefore not credible for Defra to suggest that withdrawing the Capital Grant Scheme has not had a detrimental effect on councils’ ability to meet their statutory duty. The rationale Defra gave in 2014 for not producing an impact assessment for withdrawing the funding was entirely spurious: the fact that most Part 2A remediation depended on the funding is sufficient for its withdrawal to require an assessment. The decline of Part 2A has implications for both health inequality and regional inequality. Contamination in high-value areas such as London will continue to be remediated through planning, while sites in other cities such as Middlesbrough, Liverpool and York will not be identified or remediated at all.

24.We are disappointed that Defra’s recently-announced temporary funding for contamination clean-up does not match the scale of the problem and the possible implications for regional inequality and public health. Funding should match the previous scheme—the £17.5m made available in 2009–10 amounts to around £19.6m in 2016–17 prices—and Defra should consider an ongoing dedicated funding stream for Part 2A. Defra should undertake a detailed assessment of the effects of its earlier decision to withdraw capital grant funding for contaminated land remediation, including (a) the ability of local authorities to meet their statutory duties in the absence of this funding, and (b) the consequences for health and inequality. DCLG should make clear what proportion of funds allocated to local authorities through the Revenue Support Grant are in service of statutory contaminated land duties.

Data gathering on contaminated land

25.An Environment Agency update on the state of contaminated land in England has recently been published, covering the period 2000–2013.57 The previous such update covered 2000–2007, giving a six-year gap between data releases. The data is based on a survey of local authorities which had a 60% response rate—a stark fall from 91% in the previous survey.58 When we asked Rory Stewart, Parliamentary Under Secretary of State at Defra, whether this meant that our knowledge of the state of contamination was unacceptably poor, he told the Committee that he was content with this response rate:

This is not a compulsory survey. We go out on a voluntary basis and a 60% response rate, as somebody who looks at surveys conducted, I am afraid is not that unusual. When conducting a voluntary survey, a 60% response rate is fine. That is perfectly within the realm of what we would anticipate.

26.However, section 78u of the Environmental Protection Act 1990 appears to require local authorities to respond to such a survey:

Reports by the appropriate Agency on the state of contaminated land.

(1) The appropriate Agency shall—(a) from time to time, or (b) if the Secretary of State at any time so requests, prepare and publish a report on the state of contaminated land in England and Wales or in Scotland, as the case may be.

(2) A local authority shall, at the written request of the appropriate Agency, furnish the appropriate Agency with such information to which this subsection applies as the appropriate Agency may require for the purpose of enabling it to perform its functions under subsection (1) above.

(3) The information to which subsection (2) above applies is such information as the local authority may have, or may reasonably be expected to obtain, with respect to the condition of contaminated land in its area, being information which the authority has acquired or may acquire in the exercise of its functions under this Part.59

Furthermore, the Environment Agency survey is described as being “commissioned under the statutory obligation of the Local Authority to provide this information”. It is therefore surprising that the Minister described it as voluntary and that a 60% response rate is regarded as acceptable.60 It also jars with Defra’s Single Departmental Plan 2015–2020, which contains commitments to improve Defra’s data and release more data.61

27.The Minister was mistaken to describe data-gathering on contaminated land as voluntary, when it is in fact required by statute. The fall in response rate from 90% to 60%, coupled with the seven-year interval between publications, is not commensurate with the importance of the issue. Defra’s approach to this dataset is completely out of step with its wider drive for better environmental data. The Government publishes hundreds of data indicators at local authority level on an annual compulsory basis, and there is no obvious reason why data on contaminated land should not be subject to the same arrangements. The fact that contaminated land is the responsibility of local authorities gives no reason for Defra to refrain from collecting data. We urge the Government to redouble its efforts to collect adequate data on contamination, which will allow us to better understand the link to health and inequality.

28.Defra should begin annual reporting of the state of contaminated land in England and Wales from 2017/18, in line with many other local authority-level data collections. All local authorities should be expected to respond, as the law requires. This data need not be as detailed as the current, occasional, Environment Agency surveys—but should cover at minimum (a) number of sites identified, (b) number of sites remediated including funding category, and (c) level of resource available at a local level to carry out Part 2A duties. Meanwhile, Defra should continue to seek data from councils who did not respond to the recent survey, and should provide reassurance on whether any authorities failed to respond to both of the two most recent surveys.

21 Defra Contaminated Land Overview; See also The Geological Society (SHI51)

22 Howard Price, Q135

24 Morrison S et al: An initial assessment of spatial relationships between respiratory cases, soil metal content, air quality and deprivation indicators in Glasgow, Scotland, UK: relevance to the environmental justice agenda (Environ Geochem & Health. 2014; 36(2): 319–332)

25 Bambra et al. (2014) Healthy Land? An examination of the area-level association between brownfield land and morbidity and mortality in England. Environment and Planning A 46:433-454; See also Dr Karen Johnson (SHI82)

26 Newcastle University (SHI63)

31 Howard Price, Q149

33 Dr Karen Johnson (Q140)

34 Dr Karen Johnson (Q134); See also Smart Growth UK (SHI29)

35 Howard Price (Q148)

36 Smart Growth UK (SHI29); For 2016/17, a “final” £0.4m contingency fund has been made available, targeted at sites where there is “imminent danger of serious harm”.

37 Defra, Funding for contaminated land Grant scheme spreadsheet

38 Rory Stewart, Q224

39 Rory Stewart, Q210

40 Correspondence between Defra and CIEH, 2013–14 (SHI87)

41 See discussion of the Supplementary Credit Approvals scheme in House of Commons Library, Local Government Finance (Supplementary Credit Approvals) Bill 1997/98; Smart Growth UK (SHI29)

42 PQ Joan Walley to George Eustice, 182027, 6 Jan 2014

43 Correspondence between Defra and CIEH, 2013–14 (SHI87)

45 Howard Price (Q149)

46 Prof Chris Collins, Q148

47 Howard Price, Q149-150

48 Rory Stewart, Q226

50 Cranfield University/CL:AIRE, Impact of the revised Part 2A Statutory Guidance survey, 2014

51 Cranfield University/CL:AIRE, Impact of the revised Part 2A Statutory Guidance survey, 2014

52 SHI86. This individual has asked for their identity to be withheld.

53 Anonymous Contaminated Land Officer (SHI86); emphasis in original

54 Rory Stewart, Q209

56 Defra follow-up evidence (SHI90)

59 Environmental Protection Act 1990, section 78u

60 Defra, An examination of contaminated land sector activity in England and Wales

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27 May 2016