Environmental guidance for your business in Northern Ireland & Scotland

Contaminated land

Many areas of land in the UK have been contaminated by past industrial and other human activities, including former factories, mines, storage depots, steelworks, refineries and landfills. Land at these sites could be contaminated by harmful substances such as oils and tars, heavy metals, asbestos and chemicals.

Land contamination may also be caused by current operations or accidental releases of substances to the environment.

Understanding the condition of your land and preventing new land contamination are important. If you own land that is affected by contamination, or cause or allow land to be contaminated, you could be responsible for any harm or pollution it causes as well as the cost of cleaning it up.

This guide explains how you can prevent land contamination and how you could be responsible for cleaning up land contamination.

 

What is land contamination?

Land contamination is a general term that describes land that is contaminated, for example, by substances such as:

  • heavy metals, eg arsenic, cadmium and lead
  • oils and tars
  • chemical substances and preparations, eg solvents
  • gases
  • asbestos
  • radioactive substances.

Land may be contaminated by accidents or spills, leaking underground storage tanks, past industrial uses and waste disposal.

Assessing land contamination

Land contamination investigations may be carried out in various circumstances, for example:

  • when land is sold, let, used or otherwise transferred
  • when land is proposed for development
  • when local authorities inspect land in their area
  • when an application is made for an environmental permit or other licence
  • if a pollution incident occurs.

In Northern Ireland you will need to show the Planning Service that you have assessed the contamination risks to health and the environment when you submit a planning application. If contamination is identified at the site, you must submit and agree a remediation strategy with the Planning Service that will make the site suitable for the proposed use. You will have to carry out the remediation as a condition of your planning approval.

In Scotland your local authority has a duty to inspect its area to identify whether there is any contaminated land under Part 2A of the Environmental Protection Act. This describes a specific type of land contamination where substances in, on or under the land cause, or could cause:

  • harm, in the case of radiological substances
  • significant harm
  • significant pollution of the water environment.

Part 2A deals with contamination caused by past uses of a site, such as former factories, mines, steelworks, refineries and landfills.

Local authorities will identify contaminated land, allocate responsibility for contamination where possible and take action to ensure land is cleaned up, known as remediation.

Further information

Northern Ireland Environment Agency (NIEA): Contaminated land

Scottish Environment Protection Agency (SEPA): Contaminated land

Scottish Government: Contaminated land statutory guidance

 

You could be responsible for land contamination, for example, if you:

  • develop land that is contaminated
  • cause environmental damage to land
  • cause contamination in breach of your pollution prevention and control (PPC) permit.

What you must do

Land development responsibilities

You could be required to clean up land contamination before you are allowed to carry out development. Your local council can impose planning conditions that require you to assess the risk of contamination and clean up the land, known as remediation, to make the site suitable for the proposed use.

Environmental damage responsibilities

You could be responsible for land contamination if it is classed as environmental damage and was caused on or after:

  • 24 July 2009 in Northern Ireland
  • 24 June 2009 in Scotland.

See the page in this guideline on environmental damage caused by land contamination.

Permit responsibilities

You could also be responsible for land contamination if it is caused by you breaching your PPC permit.

Further information

Northern Ireland Environment Agency (NIEA): Contaminated land

Scottish Environment Protection Agency (SEPA): Contaminated land

Scottish Government: Contaminated land statutory guidance

HMRC: Tax breaks for remediation of land contamination

If you have hazardous substances at your site, such as oil and chemicals, you must ensure that you don't cause land contamination or make any existing contamination worse.

What you must do

Comply with your permit

You can prevent land contamination by following the terms of your pollution prevention and control permit or waste management licence if you have one.

PPC Permits

Waste Management licences

You can also prevent land contamination by complying with any authorisations you have that aim to prevent water pollution.

Preventing water pollution

Manage your hazardous substances correctly

If your business uses hazardous substances, consider if they need to be stored on site, or if you could use less harmful alternatives. If no alternatives exist, try to reduce the amount that you use and only store the amount that you actually need at any time.

Keep materials that could harm the environment or human health separate from other materials. These materials include:

  • oils
  • solvents
  • pesticides
  • chemicals
  • radioactive substances.

You should store hazardous substances in appropriate containers that have pollution prevention features, such as secondary containment systems. Label containers clearly.

Oil Storage

Chemical storage

Hazardous/special waste

Good practice

Supervise refuelling and deliveries

You should supervise all refuelling operations and only refuel in a contained area away from waterways or surface water drains.

Supervise deliveries of materials to your site. Make sure you clearly label tanks with their contents and storage capacity, and provide a method for measuring the amount in the tank. This will reduce the risk of spills from overfilling.

Prepare a pollution incident response

You should ensure you have a pollution incident response procedure for dealing with spills. Make sure your staff are familiar with the procedure and know how to implement it.

You should report pollution incidents as soon as they happen by calling the UK wide Pollution Hotline on Tel 0800 80 70 60.

Pollution incident response planning

Inspect and maintain equipment regularly

You should regularly inspect and maintain all plant, pipework and other infrastructure, checking for damage, leaks and overflows. Service your equipment, storage containers and other infrastructure regularly to reduce the risk of leaks or spills. Keep maintenance and service records.

Train staff on safety procedures

Make sure that all your staff have the right level of training and that they fully understand their responsibility to prevent pollution. You should carry out a health and safety risk assessment to identify hazards and allow preventative measures to be put in place. Keep records of the training and risk assessments you carry out.

Make sure you have written procedures for dealing with pollution incidents and that everyone in the business understands them.

You can use the NetRegs e-learning tools to get a good overview of key issues. These tools are free to use and cover the essential points of each topic. They might be useful as a refresher course, or to make sure that staff  have a good understanding of their environmental responsibilities.

  • Preventing pollution – a general guide
  • Duty of care
  • Sinks, drains and sewers
  • WEEE
  • Generating renewable energy

All are available at: NetRegs e-learning tools

Further information

PPG 21: Pollution incident response planning

Northern Ireland Environment Agency (NIEA): Contaminated land

Scottish Environment Protection Agency (SEPA): Contaminated land

The environmental liability regime forces businesses to take action to prevent environmental damage and to remedy any damage they cause.

The regime applies to environmental damage that occurred on or after:

  • 24 July 2009 in Northern Ireland
  • 24 June 2009 in Scotland.

Land contamination may be classed as environmental damage if it creates a significant risk of harm to human health, or has serious adverse effects on the water environment or the biodiversity of protected species or habitats. If your activities cause, or could cause, land contamination that is classed as environmental damage you will have to prevent or remediate (clean up) such damage.

For information on how the environmental liability regime applies to land, water, and protected species and habitats, see our guideline:

Environmental damage

You may also have liabilities to clean up land contamination under other legislation. See the page in this guideline on responsibilities for land contamination

Cleaning up land contamination is known as remediation. It is the action required to ensure that land contamination is no longer a risk to human health or the environment. Remediation includes assessing the condition of the site, carrying out any necessary clean up, restoring the site and making follow up inspections.

You may need to remediate land:

  • if you are identified as an appropriate person to have responsibility by your local council, the Northern Ireland Environment Agency (NIEA) or the Scottish Environment Protection Agency (SEPA)  - this may be voluntarily or to comply with a remediation notice.
  • if your operations breach your pollution prevention and control (PPC) permit and cause contamination
  • to surrender your PPC permit - you will have to return the site to a satisfactory state (at least to the state it was in before your operations began)
  • to comply with a planning condition so that the site is suitable for the proposed use in the planning permission
  • to comply with a remediation notice issued under the environmental damage regime
  • voluntarily, as part of your corporate due diligence or risk management plans.  

If you do not agree to a remediation scheme voluntarily your local authority may issue you with a remediation notice. This will identify what you must do and by when.

If more than one person is responsible for cleaning up the land your local council will decide how you share the cost of remediation. This will be detailed in your remediation notice.

If you are issued with a remediation notice you should consider seeking legal advice and technical support. You will be told about your right of appeal against the remediation notice. Your local council may be able to give you contact details for specialist consultants in your area.

You must notify your local council when the specified work has been carried out. Allowing the natural recovery of land may be an acceptable form of remediation in some cases.

Contaminated soil in landfill

If you had a landfill tax exemption for disposing of contaminated soil at landfill sites it will have been abolished by April 2012. No new applications for exemption have been accepted since 2008.

Further information

HMRC: Tax breaks for remediation of land contamination

HMRC: Landfill tax

It's estimated there are between 50,000 and 100,000 contaminated sites in the UK, covering up to 200,000 hectares of land. Up to 20 per cent of this land may need treatment to reduce the potential for harm to people or the environment.

The government has adopted a suitable-for-use approach to deal with the legacy of contaminated land. This ensures that:

  • land is suitable for its current use by requiring remedial action to eliminate unacceptable risks
  • land is suitable for any proposed new use by assessing the potential risks from contamination and requiring necessary remedial action
  • remediation is limited to the work necessary to prevent unacceptable risks to human health or the environment from the site's current or proposed use.

Government support for redevelopment of brownfield sites

The government actively encourages the redevelopment of previously used land - known as brownfield sites. Successful developments have included new industrial estates, housing, shopping centres, warehouses and logistics centres.

Depending on your plans for the land, you may be able to get government assistance with the cost of remedying the land including capital allowances, exemption from stamp duty and enhanced tax relief.

HMRC: Tax breaks for remediation of land contamination

Advice for buying contaminated land

In Northern Ireland, if you plan to develop a brownfield site, you should contact the Northern Ireland Environment Agency (NIEA) to search the land use database. The database contains over 11,000 sites with records on previous land uses back to 1834. The NIEA will provide responses to site specific queries for free.

In Scotland, if you are planning to develop a brownfield site, the local authority register will show if it has been identified as contaminated land and what work has been done to remedy the land. However, if land does not appear in the register, it does not necessarily mean that it is uncontaminated.

Before you buy a brownfield site, you should take professional advice, for example from an environmental or property consultant, or lawyer. You could have the soil and groundwater tested to establish whether it is contaminated and to estimate the cost of remedial work.

Contaminated Land: Applications in Real Environments (CL:AIRE) is a not-for-profit organisation which aims to stimulate the regeneration of contaminated land in the UK.

CL:AIRE: Contaminated land

You can call the CL:AIRE General Enquiry Line on Tel 020 7258 5321.

The Network for Industrially Contaminated Land in Europe (NICOLE) is a forum for the exchange of ideas about contaminated land arising from industrial and commercial activities.

NICOLE: Contaminated land

You should make sure that you take out appropriate insurance. See the page in this guideline on insuring against the risk of land contamination.

Further information

HMRC: Tax breaks for remediation of land contamination

CL:AIRE: Contaminated land

NICOLE: Contaminated land

If you own or occupy land which may be contaminated, you should ensure that you have the right level of insurance cover.

Public liability insurance

At the very least, you should have cover for the cost of third-party claims that could result from spills, accidents and other unforeseen circumstances. This is usually included in the public liability insurance that some businesses are obliged to have. However, if your business is at risk of causing contamination, pollution or environmental damage, you may need to take out additional cover.

Insurance for pollution is expensive and is usually only possible after you provide detailed information to the insurer. Insurance for historical contamination is not usually available.

Insure against business losses

It is also possible to insure against your own business losses as a result of contamination, spills and similar accidents. While this may be expensive, it can be worthwhile if your business is particularly at risk.

Bear in mind that insurance companies will not usually pay out on claims that result from negligence on your part. You should always be aware of the risks involved with your business and take appropriate precautions to prevent pollution incidents. See the page in this guideline on preventing land contamination

Insurance when buying or selling land

If you are thinking about buying or selling a brownfield site for development, consider taking out insurance to limit your liability in case contamination or further contamination is found.

Before you buy or sell contaminated land, you may be able to agree an indemnity with the other party to transfer the liability to clean up the contamination. You should speak to a specialist lawyer or property consultant about indemnities.

Bonds - sometimes referred to as surety bonds - can be purchased by the seller to protect the purchaser if contamination (usually limited to above a certain value) is discovered. Bonds are much simpler to administer and are often cheaper than insurance.

This page provides links to the full text of key pieces of environmental legislation relating to contaminated land. The websites hosting the legislation may list amendments separately.

If you are setting up an environmental management system (EMS) for your business, you can use this list to start compiling your legal register. Your legal adviser or environmental consultant will be able to tell you if other environmental legislation applies to your specific business.

Environmental management systems (EMS) and environmental reports

Northern Ireland

Waste and Contaminated Land (Northern Ireland) Order SI 1997/2778. Sets out the regime for identifying and remedying contaminated land.

Waste and Contaminated Land (Amendment) Act (Northern Ireland) 2011. Gives the Department of Environment and district councils similar investigative, enforcement and clean up powers to deal with illegally dumped waste. Changes the legislative framework for management of land that has been contaminated by pollution.

Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) SR 2009/252. Brings into force rules requiring polluters to prevent and repair damage to water systems, land quality, species and their habitats and protected sites.

Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) SR 2009/361  Amends 2009/252 to update how warrants can be issued and enforced, gives magistrates more flexibility in the fines they can apply for conviction, and clarifies that references to European legislation include any future amendments.

Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) SR 2011/210  Amends 2009/252 to include the geological storage of carbon dioxide as an activity for which operators will be liable if environmental damage is caused.

Radioactive Contaminated Land Regulations (Northern Ireland) SR 2006/345. Lays down basic safety standards for protecting the health of workers and the public from the dangers of ionising radiation.

Radioactive Contaminated Land Regulations (Northern Ireland) (Amendment) Regulations SR 2007/3236 Amends 2006/345 by extending those regulations to land contaminated by a nuclear occurrence.

Radioactive Substances Contaminated Land Regulations (Northern Ireland) (Amendment) Regulations SR 2010/2145.  Amends 2006/345 by redefining 'substance', removing the exclusion for radon and its decay products where they are the result of the after affects of a radiological emergency or past activity.

Scotland

Environmental Protection Act 1990. Establishes the legislative framework for identifying and dealing with contaminated land.

Contaminated Land (Scotland) Regulations SSI 2000/178. Introduces a scheme for remedying contaminated land, identifies 'special sites' enforced by the Scottish Environment Protection Agency (SEPA), remediation notices and their contents, and sets out the information to be held on a contaminated land register maintained by local authorities.

Contaminated Land (Scotland) Regulations SSI 2005/658. Aligns the contaminated land regime with the water environment protection regime where contaminated land is a source of pollution.

Environmental Liability (Scotland) Regulations SSI 2009/266.Brings into force rules requiring polluters to prevent and repair damage to water systems, land quality, species and their habitats and protected sites.

Radioactive Contaminated Land (Scotland) Regulations SSI 2007/179. Amends the provisions of Part 2A of the Environmental Protection Act 1990 to cover the identification and remediation of radioactive contaminated land.

Radioactive Contaminated Land (Scotland) Amendment Regulations SSI 2009/202. Amends 2007/179 in terms of radioactive contaminated land (excludes land contaminated by nuclear sources), and empowers SEPA to determine if such land is 'contaminated land'. Amends the definition of 'substance' in 2007/179.

Further information

Environmental legislation on NetRegs

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