Contaminated Land (Householder Responsibility)

George Eustice Excerpts

Tuesday 10th February 2015 Westminster Hall

[The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (George Eustice)]

I congratulate the hon. Member for Somerton and Frome (Mr Heath) on securing the debate. I assure him that representing as I do a seat with towns built on the sites of 18th and 19th-century tin mining, I am well aware that contaminated land is still an issue in many parts of the country and that it has in no way gone away. The idea that it has is not the driver behind some of the changes we have made.

Contaminated land is a complex area and can cause hardship and anxiety for people, particularly where their homes are involved. The case that the hon. Gentleman mentioned, where he suggested the cost could be £270,000, very much demonstrates that point. An estimated 90% of the remediation of contaminated sites is market-driven and occurs under the planning regime, but there will continue to be sites that are not suitable for further development, but require remediation.

I was interested to hear about the hon. Gentleman’s involvement in the passage of the Environmental Protection Act 1990. As he knows, the contaminated land regime, as set out in part 2A of that Act, provides a risk-based approach to the identification and remediation of land where contamination poses an unacceptable risk to human health, property or the environment. Responsibility for identifying that contaminated land rests with the local authority, as set out under part 2A. Changes made to the part 2A statutory guidance in April 2012 have resulted in a more risk-based approach to identifying and remediating contaminated land, meaning that more resource can be directed to those sites most in need. From our discussions with local authorities, we know that the new statutory guidance is proving helpful to them and has helped to simplify a complex area.

Part 2A, as the hon. Gentleman pointed out, is based on the principle of polluter pays. Therefore, liability will always be apportioned in the first instance to the company or person that caused the pollution or knowingly permitted it to be caused. However, it is not always possible to identify the polluter. In some cases, the pollution was caused long ago, and the company responsible may since have folded. When that happens, the costs of remediation can fall to the site owner or the occupier of the land. That might be the local authority itself, but it can also be individual private householders. Crucially, however, local authorities are required to take into account the hardship that may be caused if all costs, or partial costs, are to be apportioned. When local authorities are reaching decisions over cost apportionment, hardship must be considered on a case-by-case basis, with regard given to the principles set out in the statutory guidance.

Turning to the hon. Gentleman’s constituency matter relating to the Whatley gasworks in Somerset, I understand that in the case of the home owner on that site, no liable polluter could be identified. Although the Department for Environment, Food and Rural Affairs was unable to offer further funding this year, as the contingency fund was allocated to higher-priority sites, I can confirm that in previous years, capital grants totalling almost £90,000 have been issued for the same site to cover the costs of investigation. The hon. Gentleman was unclear about this, but my understanding is that, in the end, the local council agreed to bear the costs of remediation because it determined that hardship would be caused to the householders who owned the affected property had they been made to pay. I know that he questions whether that is the case, and I am more than willing to clarify that point after the debate, but my understanding is that the costs will be borne in this instance.

A related point about part 2A is that it is clear that where a class B person owns and occupies a dwelling on contaminated land, the council should consider waiving or reducing the costs of recovery if the person did not know and could not reasonably have been expected to know that the land was contaminated when they brought it. My understanding is that the people in the case raised by the hon. Gentleman did have a survey carried out when they purchased the property many years ago, which is also a mitigating circumstance.

[Mr Heath]

The local authority has been as helpful as possible in this case and did identify both of those factors as arguments for waiving the fees. Nevertheless, it expressed concern that a number of other properties around the district council area will end up in similar circumstances. That would mean a substantial capital sum mounting up very quickly, which would be difficult for a small district council to support.

[George Eustice]

I understand the hon. Gentleman’s point and hope to reassure him in a moment when I discuss some of the other things that we are doing to move from looking only at the hazard of contaminated land to a more risk-based approach. From 2012 onwards, we have taken a number of steps to ensure that councils do not unnecessarily identify sites that may well have some contamination but are not a priority. I am pleased that the case he has raised appears to have been resolved satisfactorily; however, he has put his finger on an important point, because other sites might be affected.

As I said at the start of my speech, it is important to recognise that an estimated 90% of the cleaning up of contaminated land in England and Wales is carried out through the planning system under the national planning policy framework. The Government encourage the focus on a market-based approach to dealing with contaminated land. One of the financial incentives provided by Government to encourage the re-development of contaminated land is land remediation relief, which allows companies to claim back corporation tax on 150% of the costs of dealing with contaminated land and is intended to influence developers’ decisions positively by increasing the profitability of redevelopment projects. We should also note that the existing environmental permitting regime for the current activities with the greatest potential to cause contamination is designed to ensure that no new part 2A contaminated sites are created.

As the hon. Gentleman pointed out, the capital grant scheme is being phased out. I know that local authorities were disappointed when DEFRA announced in December 2013 that the contaminated land capital grants scheme would be closed. The phasing out of the grants scheme is regrettable, but it reflected a necessary shift to a more sustainable approach in the face of pressures on the public finances, of which the hon. Gentleman will be well aware, having been a DEFRA Minister himself. The cornerstone of our new approach was the revised guidance that we issued in 2012 that has saved local authorities and businesses money by giving much more clarity over how to decide whether affected sites need to be remediated.

In March 2014, we published DEFRA-funded research to develop new screening levels that will help public authorities and developers to screen out low-risk land from the need for further investigation and so prevent unnecessary remediation works. The crucial thing is to ensure that there is no obligation on local authorities to search for sites that might not be of particularly high risk and should not be a priority, thereby creating a potential liability for householders. By adopting a more risk-based, less hazard-based approach to these issues, we have helped to address some concerns.

The screening values that we published sit alongside DEFRA research that was published in 2012 on the normal background concentrations of contaminants. That forms part of a toolkit for use by the contaminated land sector that will help to ensure that pragmatic, evidence-based decisions can be taken, thereby reducing costs while ensuring a high level of protection to human health and the environment. DEFRA continues to support the national experts panel on contaminated land, the remit of which is to advise local authorities on difficult decisions under part 2A at more complex contaminated sites. The panel is available as a free resource for local authorities to access, and is intended to help where it is unclear whether a site should be determined as contaminated under part 2A. Case studies on the output of the panel’s work will be published so that all local authorities can benefit from the lessons learned.

In conclusion, we remain committed to ensuring that the appropriate policy tools are available to support local authorities in carrying out their duties under part 2A. Local authorities that require help and advice about how best to manage affected sites should obtain advice from industry experts where necessary. Authorities should also try to work with the owner of the land to see what benefits could be gained via the land remediation relief scheme. Although there will always be difficult cases that require more detailed consideration, the changes that we have introduced to the contaminated land management regime since 2012 have stimulated growth, enabled previously abandoned sites to be developed and returned to productive use, and delivered significant benefits for the economy, while maintaining a high degree of protection for human health and the environment.

I congratulate the hon. Gentleman again on bringing this debate before the House. I hope I have been able to allay some of his concerns, both on the individual case that he raised, which I understand has now been resolved, and more widely.

[Mr Heath]

I am most grateful to the Minister for giving way at this point. In the course of the debate, I have been advised that the matter has not yet been resolved. It might be a matter of loan or of grant, but the household concerned is still not absolutely clear about where the funding will come from.

[George Eustice]

In which case that is a disappointment, because I thought that we had found a solution. After the debate, I will discuss the case with my noble Friend Lord de Mauley, with whom I know the hon. Gentleman has previously corresponded. As I said, the local authority could show forbearance on a couple of grounds and waive the costs: first, on the grounds of hardship, for which there would seem to be a good case, given the high costs; and secondly, on the grounds that there was no reason why the householders should have known or had reason to know about the contamination, given that they had a survey conducted when they purchased the property. We will look further at the case and see whether a resolution can be found.

[Mr Philip Hollobone (in the Chair)]

I hope that, owing to the efforts of the hon. Gentleman and the good intentions of the Minister, this matter can be cleaned up for the hon. Gentleman’s constituents as soon as possible. I thank both participants for their contributions.