Contaminated land—determinations

The following Environment practice note provides comprehensive and up to date legal information covering:

  • Contaminated land—determinations
  • Who makes the determination?
  • Significance of the determination
  • Consultation with other regulators
  • Making the determination
  • Determining that land is not contaminated land
  • Determining that land is contaminated land
  • Area of land determined
  • Postponing determinations
  • Urgent determinations
  • More...

Contaminated land—determinations

Who makes the determination?

Local authorities (LAs) have sole responsibility for determining whether land is contaminated land under the Environmental Protection Act 1990, Pt IIA (EPA 1990). They cannot delegate this responsibility, other than in accordance with their statutory powers under the Local Government Act 1972, s 101.

LAs may rely on information or advice from the Environment Agency (EA), Natural Resources Wales (NRW) or a suitably qualified expert when considering whether to determine land. However, the ultimate decision must be made by the LA. In practice, the determination is likely to be made by an officer acting under delegated authority or by committee resolution.

Whoever the decision maker is, they must ask themselves whether the land is, or is not, contaminated land. At this stage, it is not relevant to consider whether it is appropriate to serve a remediation notice. That question follows the determination.

For example, in Shelley, a LA committee asked itself the wrong question when determining whether a statutory nuisance existed. It considered whether it was appropriate to serve an abatement notice, instead of whether there was in fact a statutory nuisance. In construing the committee's resolution, the court took into account the officer's report which was referred to in the minutes of the resolution. In particular, the report failed to give any clear advice to the committee on what statutory nuisance means

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