Written evidence submitted by the Chartered Institute of
Environmental Health

Summary

Thousands of parcels of land up and down the country are thought to be affected by contamination to an unacceptable degree.  Local authorities have a duty to find them and ensure they are dealt with appropriately.  A highly technical process, that can cost them a lot of money, initially in soil sampling and chemical testing but in particular later, if levels of contaminants are confirmed as unacceptably high and there is no-one else to pay, in reducing them.  The Government has, however, withdrawn the funding for that from local authorities this year.  The consequences are that some sites already found to be contaminated cannot be cleaned-up and the investigation of new sites has all but ceased.  Adequate funding needs to be restored to allow local authorities to meet their statutory responsibilities and continue to protect public health.

About the Chartered Institute

Founded in 1883, the Chartered Institute of Environmental Health is the UK`s pre-eminent professional and educational body dedicated to promoting the discipline of environmental health and to encouraging the highest possible standards in the training and work of those who practice it.  A registered charity based in London, and with approximately 10,000 members working in all sectors of the economy throughout the country, it received its Royal Charter in 1984.

Introduction

1.              The term ‘environment’ carries a particularly wide meaning for the Chartered Institute and its members, nevertheless, among its principal physical elements of air, land and water, the area in which we believe its protection has worsened most since 2010 is land.  Taking a different perspective to the NAO`s review, ie not of protection for  soil but of protection from soil, and given the Government’s current ‘push’ for the redevelopment of ‘brownfield’ land[1], in our view this is consequently also the area in which the need to improve protection is most urgent.

2.              Our industrial past and other activities have left England with a large legacy of contaminated land.  Up to c.300,000ha of land in Great Britain – an area as large as London and Birmingham combined – have been estimated potentially to be affected to some degree by contamination of anthropogenic origin.  Comprised of c.100,000 separate sites, up to 20,000 were expected to be `problem sites`, requiring action to ensure they do not pose an unacceptable risk to human health or the environment[2].  As Defra wrote only three years ago, `...there are good science-based reasons to be concerned that some sites pose significant risks (ie to human health) from long-term exposures.`[3] 

3.               Finding and dealing with contaminated sites is important not only to reduce those risks to acceptable levels but also since contamination seeping into groundwaters may threaten sources of drinking water, and just the possibility of contamination causes anxiety and blight.  It is also a barrier to the fulfilment of broader regeneration policies which once again are highlighting bringing pre-developed ('Brownfield') sites back into use in preference to the development of `Greenfield` sites.

The regulatory regime

4.              As always anticipated, the great majority of contaminated sites are identified and cleaned-up in the course of voluntary development by their owners.  Helping to ensure that, however, and for use as a back-stop to bring about the improvement of land not undergoing redevelopment, is a regulatory regime vested in local authorities and applied, usually, by their environmental health departments.

5.              That regime is found in Part 2A of the Environmental Protection Act 1990, brought into effect in England only in April 2000.  Supplemented by both technical and procedural guidance, in particular in the latter case the so-called `Statutory Guidance`[4], Part 2A requires local authorities to inspect their areas to detect land which ought to be determined as ‘contaminated’.  A tiered process[5] of desktop research, generic and, finally, detailed (site-specific) risk assessment, once that process uncovers such land, in the absence of a suitable proposal by the owner, it becomes the duty of local authorities[6] to bring about its

remediation by one technique or another[7].

Progress

6.              That task was informally predicted at the beginning, in 2000, to take c.30 years.  Defra has recently let a contract[8] which, among other things, will enumerate progress under Part 2A to date but, pending the results of that, the most recent data derives from an Environment Agency survey in 2007[9].  That found that in the first seven years, just 659 sites in England had by then been determined as `contaminated`, of which 91%  were now housing, the result of relatively recent building on inadequately remediated post-industrial land. Of all of those, only 145 had been fully remediated.  While many more sites will, of course, have been investigated to some extent in the same time (and since) and dismissed as not contaminated, we do not expect the current survey to show the rate of progress overall to have accelerated. 

The need for funding

7.              Whereas, of course, the clean-up of sites presenting through the planning process is funded initially by their developers, the cost of any remediation mandated under Part 2A is borne under a hierarchy of liability, ideally, by the original polluter but where he cannot be found, by the current owner.  In default (for example where that would cause undue hardship), responsibility falls on the local authority using public funds. 

8.              In the Environment Agency`s 2007 survey[10], however, though `appropriate persons` (i.e. polluters, owners et al potentially liable to pay) had been identified in respect of 230 determined sites, in only 69 cases was it anticipated that the costs might be recovered.  In the remaining 90% of cases, in particular the 429 `orphan` sites where no appropriate person had been identified, the costs fell on the local authority.  Preceding formal determination as `contaminated`, the costs of investigating Part 2A sites (for soil sampling and laboratory tests) is not recoverable and always falls to local authorities.  

9.              Local authority funding is thus key to even the limited progress achieved so far and in the same 2007 survey, funding (or, rather, the lack of it) was described as the least helpful aspect of the Part 2A regime.

Mechanisms for funding

10.              To date, local authorities have been funded for this work through two mechanisms: the environment block of the rate support grant (RSG) and capital grants.  RSG provides the main support for authorities` day-to-day expenditure, in particular for staff, for a wide range of activities.  Determined by DCLG in conversation with the Treasury, how much money each authority is given annually in respect of its Part 2A duties is not disclosed to them and, in any event, is not ring-fenced.  It has never, however, been intended to augment capital spending. 

11.              In recognition of that, a scheme originated to provide help for dealing with landfill leachate was turned in 2001 to supporting activity under Part 2A.  First provided through Supplementary Credit Approvals, funding took on its present form of Capital Grants in 2006.  Though still funded by Defra, the Environment Agency took over management of the programme in 2010.

Funding withdrawn

12.              On 9 December last year, however, Lord de Mauley (the responsible Parliamentary Under-secretary of State in Defra) wrote[11] to local authorities announcing the end of the programme, citing `current (economic) circumstances` for `a regrettable but necessary change of approach`.  Needing, of course, to be seen in the light of reductions to Defra`s budget over a longer period, the timing appeared to reflect in particular the additional cuts announced in the Chancellor`s Autumn Statement.

13.              Seeking to defend the decision, the letter noted that £38M had been made available to local authorities under the scheme since 2009/10 (5 years), nevertheless overlooking that the amounts available for bids had been declining over that period.  Last year`s (2013/14) budget stood at only £2M and evidence from the Environment Agency shows that bids for funding have consistently outstripped budgets recently, for example by 49 (frustrated) bids and c.£5.7M in 2011/12, by 33 bids and c.£8.7M in 2012/13, and by 39 bids and c.£4.2M in 2013/14[12]. 

14.              The same source gives the mean value in the past three years of approved bids for the intrusive investigation of sites as c.£14,500 and the mean value of approved bids for the remediation of determined sites as c.£105,800.  Though Defra`s letter held out the hope that `up to £0.5M could still be made accessible annually` up to March 1917 for `absolute emergency cases` and for `on-going remediation projects (of) the highest priority`, the Department has so far not defined those circumstances and clearly that sort of amount will not go far.  Of particular note is that the number of `investigation` bids approved in the past three years has outnumbered the number of `remediation` bids approved by 137 to 78, suggesting a backlog of determined sites building-up which will now not be possible to remediate.

15.              Local authorities faced with the loss of Government funding to fulfil their contaminated land function have few alternative sources to turn to.  Given the amounts involved and broader circumstances, revenue funding is unlikely to be an option and though the main driver is the protection of public health, the new public health budgets are not only spoken-for but district councils do not share in them anyway.  While claiming on old insurance policies is a theoretical possibility, the first successful case in the UK is still awaited.

Consequences

16.              Without the prospect of necessary remediation being funded, it would be a reckless local authority which determined a site as `contaminated` without having identified an appropriate person able to pay.  Without funding for intrusive investigations, sites cannot reliably be determined as `contaminated` in any event and the consequence of Defra`s action is to bring local authority activity under Part 2A to a virtual halt.  It not only frustrates their statutory duty under the 1990 Act but an indirect consequence will be that the `supply` of `Special sites` to the Environment Agency will dry up too.  A further indirect consequence may be that the expert staff dedicated to this role will be moved to other functions or lost completely.

Examples

17.              Examples of the varied kinds of sites being investigated and remediated with grant aid are given in Environment Agency reports[13].  Among those funded for investigation in 2011/12 were a former chemical works in Lincoln, resulting in 35 homes being determined as `contaminated` and a former gasworks in Surrey where three houses were deemed `contaminated`.  Remediation projects included a former sewage works in London, now occupied by 61 homes and a former claypit in Worcestershire where works were carried out to prevent ground gas migration to 16 surrounding homes.  The Agency`s corresponding report in 2012/13 highlighted investigations funded of a former gasworks (subsequently determined as `contaminated`) and of a former pottery (subsequently not determined) and remediation works to 76 gardens across nine different sites including several former gasworks and a former lead works and to 12 allotment plots on two sites.

18.              From a different perspective, some local authorities provide information on their websites of sites which have been investigated, determined and remediated through the Contaminated Land Capital Programme.  An example would be the treatment of the Boo Hole landfill site in Rochdale[14].   A particular example of a site whose future is now threatened is the former St Anthony’s Tar Works in Newcastle–upon-Tyne which many years after production stopped is still leaching coal tars into the River Tyne[15].  Determined as `contaminated` in 2010, Defra has already spent £400K on investigating and assessing the site which, though a risk to human health and causing serious water pollution, the City Council cannot afford to remediate.

Recommendations

19.              Potentially contaminated sites vary greatly in character, size, complexity etc and cannot be dealt-with on a `production line` basis, nevertheless, 14 years after the statutory regime was commenced and with disappointing progress having been made, consideration needs to be given for local authorities to be given at least informal targets for their identification and remediation.  The Public Health Outcomes Framework could provide a mechanism for monitoring progress.

20.              In the short term, Government should commit to fully fund the remediation of outstanding determined `contaminated` sites where there is no `appropriate person` to do so.  There needs to be a further commitment to restore funding to local authorities` inspection programmes too, as soon as circumstances permit.

21.              The amounts allocated to local authorities in Revenue Support Grant need to be reviewed to ensure they are sufficient to underpin the targets set in each authority.  Those amounts need to be disclosed to local authorities to give them the confidence to spend them and ring-fenced to the function to make sure they are spent as intended.

22 August 2014