Voluntary remediation, notices and appeals
The aim of remediation
The 2012 guidance sets out the aim of remediation as being:
'a) to remove identified significant contaminant linkages, or permanently to disrupt them to ensure they are no longer significant and that risks are reduced to below an unacceptable level; and/or
b) To take reasonable measures to remedy harm or pollution that has been caused by a significant containment linkage.'
The guidance instructs local authorities to act in a reasonable manner in deciding what actions it includes in a remediation notice, specifically the local authority must be reasonable with regard to the cost and the seriousness of the pollution and harm. This appears to be a slightly lower bar that was set by the previous statutory guidance which placed a greater emphasis on setting a standard of remediation which would result in land being 'suitable for use'.
The standard of remediation also appears to have been amended by the introduction of the 4 category test of contaminated land. The new guidance states that 'where the aim of remediation is to remove or permanently to disrupt significant contaminant linkages' the intention should be to ensure that land is remediated so that it 'no longer poses sufficient risk to qualify as contaminated land.' This could now mean land is remediated to a level where the risks of contamination are not low.
Voluntary remediation, notices and appeals
A key aim of the regime is to encourage voluntary remediation. This is highlighted by the 3-month period between designation and when the local authority can serve a remediation notice.
Voluntary remediation may be preferable, not only from the local authorities' point of view, but also from that of the appropriate people, who may prefer to undertake remediation on their own terms.
Where the appropriate person, or someone else, is to undertake the voluntary remediation, the local authority should not serve a remediation notice provided it is satisfied that the proposed remediation meets the required standards. If the remediation does not materialise, or does not meet the required standard, it is always open to the local authority to serve a remediation notice at a later stage.
The person undertaking voluntary remediation can of course remediate to a greater standard than that required by the regime. If voluntary remediation is carried out then a remediation statement will be prepared which will be included on the register.
There have already been a number of cases where voluntary remediation has taken place after designation. What is of particular interest is the number of sites where remediation has been achieved just by the local authority threatening that the site may be designated as contaminated land. The stigma attached to a formal designation may be enough, in many circumstances, to stimulate clean-up.
When it has become clear that remediation will not take place without the service of a remediation notice, the local authority should ensure, before serving the notice, that there are no circumstances which will prevent it from serving that notice.
The local authority cannot serve a remediation notice on a person until 3 months have elapsed since the person was notified of the designation of the land as contaminated. If the local authority finds, in the course of the consultation period, additional appropriate persons, it must notify them of the designation of the land as contaminated and then wait 3 months before serving any remediation notice on them.
Although the local authority is under a duty to serve a remediation notice, it may wait for more than 3 months before doing so, for example, when discussions about voluntary remediation are ongoing.
Section 4 of the Contaminated Land (England) Regulations 2012 sets out the content of the remediation notice. It is vital that time limits are set for the actions that are going to be required, otherwise it will not be possible for the local authority to take enforcement action on the basis that the action has not been carried out. Any remediation notice must effectively justify, by reference to the statutory guidance:
- the remediation scheme proposed;
- any exclusions from liability; and
- any apportionment of costs.
The remediation notice may, therefore, have to be a fairly lengthy document. It should be carefully drafted so as to attempt to avoid an appeal being made against it.
There may be several remediation notices for each site. Copies should be served on all the people that were consulted about remediation and on the Environment Agency. Where there are several appropriate persons for a given action, a single remediation notice may be served on all of them. Details of the notice must be included in the register.
There is a right of appeal against a remediation notice. Where the local authority serves a remediation notice the appeal is heard in the local Magistrates' Court. An appeal is made by way of a summary application to the court. If the Environment Agency serves the remediation notice because it has taken over regulation of a site and it is now the appropriate authority, an appeal will be heard by an inspector appointed by the Secretary of State.
The time limit for bringing an appeal is 21 days, beginning with the first day of service. On appeal, a remediation notice can be modified, confirmed or quashed. The remediation notice may be quashed if there is 'a material defect' in the notice.
The grounds for appeal are set out in section 7 of the Contaminated Land (England) Regulations 2000. There are a large number of grounds of appeal including:
- the appellant is not the appropriate person;
- the authority failed to exclude the appellant;
- there has been an improper apportionment of costs;
- there is some error with the notice;
- the requirements of the notice are unreasonable, having regard to the costs and benefits;
- the period of time for compliance is insufficient;
- someone else is the appropriate person.
Given the complexity of the regime and the possible costs at stake a number of appeals are expected. It remains to be seen how the local Magistrates' Courts will deal with such a complex regime.