DEFRA issues new circular on contaminated land

The statutory provisions dealing with contaminated land contained in Part IIA of the Environmental Protection Act 1990 need to be read in conjunction with the statutory and other guidance issued by, in the case of England, DEFRA.

DEFRA has issued Circular 01/2006 entitled “Environmental Protection Act 1990: Part 2A Contaminated Land”. The new Circular replaces the previous guidance document – DETR Circular 02/2000.

Circular 01/2006 now combines the guidance on contaminated land with new specific guidance on radioactivity and the extension of Part 2A to address radioactivity. The previous guidance has been updated in the non-statutory sections to take account of developments since 2000, including the Contaminated Land (England) Regulations 2006 which came into force on 4th August 2006, but is otherwise substantively unchanged in most respects. DEFRA has also decided to change the way it refers to Part IIA – now referring to Part 2A.

Section 78YC of Part 2A excluded harm or pollution of controlled waters so far as attributable to the radioactive properties of any substance from the regime. However, it was always contemplated that radioactive contamination would be brought into the Part 2A regime in due course and the section also provided for the making of regulations to enable that to occur. Following the implementation of the legislative provisions bringing radioactive contaminated land into the Part 2a regime in August 2006 revisions to the guidance were required.

The guidance does not address the position regarding the unimplemented provisions of section 86 of the Water Act 2003 that will introduce the word “significant” into the water pollution limb of the definition of contaminated land. The provisions remain unimplemented in England. They were implemented in Scotland in April 2006.