Contaminated Land Inspection Strategy 2024 to 2029

Stockton-on-Tees has a considerable industrial heritage, and a legacy of historic unregulated waste disposal which now requires methodical recovery and remedial work to bring it back into everyday use. The Government's policy on dealing with this legacy is through the Contaminated Land Regime under Part 2A of the Environmental Protection Act 1990 as outlined in the DEFRA Contaminated Land Statutory Guidance (DEFRA 2012) whose aims are:

• (a) to identify and remove unacceptable risks to human health and the environment
• (b) to seek to ensure that contaminated land is made suitable for its current use
• (c) to ensure that the burdens faced by individuals, companies and society are proportionate, manageable, and compatible with the principles of sustainable development

Under these provisions (Part 2A of the Environmental Protection Act 1990 (inserted into that Act by section 57 of the Environment Act 1995) local authorities were required to implement a "strategic approach" to inspecting their areas to identify land where contamination is causing unacceptable risks to human health or the wider environment.

This document will review the existing strategy and outline its priorities for contaminated land. It is proposed in this strategy that emphasis shall continue to be upon the high-risk sites which are of most concern to human health and the environment and to prioritise pollution incidents where they occur. The Planning Development Regime is the main method of assessing and remediating all potentially contaminated land. This includes the lower risk sites as well as medium and high-risk sites.

Historic and built environment

The River Tees is a key feature of the Borough, historically acting as a trade route during the Eighteenth Century, bringing the area into economic prominence. Industries included mineral extraction, brick and tile manufacture, iron and steel manufacturing, shipbuilding in the early Nineteenth Century.

In 1825 the world's first steam locomotive train was operated between Stockton and Darlington railway, and this was used to transport coal.

This is evidenced by its archaeological remains and historic buildings. The Tees Archaeology Historic Environment Record (HER) is a database of heritage assets in Hartlepool and Stockton managed by Tees Archaeology. It includes archaeological sites and standing remains dating from the prehistoric and Roman periods through Anglo-Saxon and medieval periods, to post-medieval and industrial remains. The earlier sites in the Borough are complemented by more recent heritage, such as the new town of Billingham, founded around the ICI chemical works in the early 1920s and the latter 20th century oil and chemical industry based at Seal Sands.

Stockton contains 8 scheduled monuments which are afforded protection by the Ancient Monuments and Archaeological Areas Act 1979. Listed Buildings, also of national importance, are protected by the Planning Act 1990. Non-designated above and below-ground heritage assets (identified in the HER) are protected by policies in the Stockton Local Plan.

The Tees Barrage, completed at the end of 1994, acts as a flood defence from rising river levels, particularly to prevent local flooding in Yarm.

Characteristics of the area

Stockton-on-Tees is within the Tees Valley which adjoins the five Local Authority areas of Darlington, Hartlepool, Middlesbrough, and Redcar and Cleveland. The Borough is divided by the River Tees covering an area which is approx. 20,400 hectares.

Stockton has a population of 194,119 and consists of 84,0470 dwellings. The density of population is 9.5 persons per hectare. A substantial proportion (62.5 %) of the properties in the Borough has residential gardens.

Part of the Tees mouth and Cleveland Coast is a site of special scientific interest (SSSI) for its nationally important geological and biodiversity features that occur within coastal and freshwater habitats. This includes the Tees mouth and Cleveland Coast Special Protection Area (SPA) and Ramsar site (a wetland site designated of international importance under the Ramsar Convention).

Geological and hydro geological characteristics

The geology of the area impacts upon the groundwater vulnerability by means of its permeability, porosity, and geological composition. These geological factors affect the vulnerability to groundwater contamination from sources such as landfills, industrial sites, and agricultural practices.

The geology is divided into i) superficial deposits originating from the Quaternary Period (Boulder clay, alluvium and magnesian Limestone formation) ii) Solid bedrock comprising of Permian magnesian limestone, marl, and sandstone layers.

The Sherwood Sandstone Aquifer is the main source of groundwater in the area. Within the Borough, there are three principal water abstraction points where the water is abstracted for consumption. Ground Vulnerability maps indicate that most of the area has low permeability drift deposits which overlay the aquifers.

The Environment Agency has identified one groundwater Source Protection Zone [SPZ] for the protection for drinking water. Stockton-on-Tees Borough Council has no Indicative Flood Risk areas in accordance with the criteria produced by Defra.

Regulatory and policy context

In April 2000, Part 2A of the Environmental Protection Act 1990 (inserted into that Act by section 57 of the Environment Act 1995) came into force. The main objective requires local authorities to implement a "strategic approach" to inspecting their areas to identify land where contamination is causing unacceptable risks to human health or the wider environment.

This is the sixth review of the Contaminated Land Strategy to reflect the changes in service provision, contaminated land legislation, and published guidance. This should be read in conjunction with the Contaminated Land Statutory Guidance issued by the Defra (April 2012). 

The Statutory Guidance recognises that there are two broad types of "inspection" likely to be carried out by local authorities:

• (a) strategic inspection, for example collecting information to make a broad assessment of land within an authority's area and then identifying priority land for more detailed consideration
• (b) carrying out the detailed inspection to obtain information on ground conditions and carrying out the risk assessments which support decisions under the Part 2A regime relevant to that land

Stockton-on-Tees Borough Council assumes all the land within the Borough is not deemed "contaminated land" under Part 2A of the Environmental Protection Act unless a detailed assessments of the land have been undertaken which outlines the information gathering procedure.  

If the local authority intends to carry out a detailed inspection it will use statutory powers of entry under section 108 of the Environment Act 1995. For special sites (as defined under the Contaminated Land Regulations 2006) the local authority may request the Environment Agency carry out an intrusive inspection of the land on behalf of the Authority.

Strategic implementation

Stockton-on-Tees Borough Council's Local Plan (2019) and associated National Planning Policy Framework (NPPF) is a key mechanism for the Council to deliver its priorities to protect the vulnerable; create economic prosperity; tackle inequality; and help people to be healthier.

Local Plan Policy ENV7 (Ground, Air, Water, Noise and Light Pollution) within the Local Plan (2019) states that where contamination exists, planning proposals must demonstrate via site investigation that any issues will be satisfactorily addressed by appropriate mitigation measures to ensure that the site is suitable for the proposed use and does not result in unacceptable risks which would adversely impact upon human health and the environment.

It is envisaged that the Contaminated Land Strategy will be incorporated into other strategic documents such as Stockton Councils Air Quality Strategy 2024 to 2029, the Public Health Plan and the Joint Health and Well-being Strategy to support the health protection role of the Council. 

Progression of the strategy

This is the sixth strategy document setting out Stockton-on-Tees Borough Council's proposals for the identification, assessment, and remediation of contaminated land within the Borough of Stockton. This replaces the previous Strategies published in 2001, 2003, 2009, 2014 and 2019.

The original Strategy ('A Strategy for Remediation and Reclamation of Contaminated Land', April 2001) focused upon identifying and prioritising areas of contaminated land within the Borough. The Council in partnership with the Jacobs Babtie Group Ltd carried out a site categorisation exercise using a computer model. The methodology for the model is set out in the Identification, Prioritisation and Risk Ranking of Potentially Contaminated Land: Babtie Group Limited [June 2002].

The 2003 and 2009 to 2014 Contaminated Land Strategy focused upon preliminary site inspections of the sites and final prioritisation of the sites requiring specific site information.

The fourth strategy document (2014 to 2019) reflected a change of approach to the inspection regime, as most of the sites had been inspected and assigned a risk category. The high-risk category sites (PPC1 sites) where given priority for assessment and remediation due to the greatest potential risk to human health.

This prioritisation continued in the 2019 to 2024 strategy, with a focus upon voluntary remediation of high-risk sites, reactive work, and dealing with contaminated land through the development control regime.

Role of the Environment Agency

The Environment Agency (EA) also plays a major role in supporting the Council with contaminated land matters and assists with:

• advice regarding the pollution of controlled waters and remediation for sites which have the potential to be a "special site"
• advice where significant pollution or significant possibility of significant pollution is occurring on a site
• providing information which the Local Authority may rely upon to decide whether a site meets the legal definition of contaminated land
• advice on whether a site meets the requirements for designation as a "special site"
• inspecting potential special sites on behalf of the Local Authority
• formalising designation of special sites, for which the Environment Agency are the enforcing authority

Contaminated controlled waters also have the potential to impact upon the quality of land. The local authority will therefore liaise closely with the Environment Agency wherever the contamination of controlled waters is likely.

The Planning Regime

Contamination is a material consideration under the Town and Country Planning Act 1990 and the planning regime remains the primary mechanism for dealing with contaminated land. In accordance with the National Planning Policy Framework (Rev December 2023), Paragraphs 183 details the requirements for addressing potential contamination in the development control process to ensure the site is suitable for its proposed use.

The planning regime addresses the risks in relation to future use of land and where a site is affected by contamination or land stability issues. The responsibility for securing a safe development rest with the developer and or landowner.

Planning policies and decisions should ensure that a site is suitable for its new use and that after remediation, as a minimum, land should not be capable of being determined as contaminated land under Part 2A of the Environmental Protection Act 1990.

Where necessary, Stockton-on-Tees Borough Council will use conditional approval on planning consents that requires the developer and or landowner to follow a staged process of risk assessment to demonstrate that contamination has been effectively considered and dealt with in accordance with legislation, current guidance, and good practice to demonstrate that the development is suitable for its new intended use.

For consistency in the planning process, Regional Technical Guidance for Developers, Landowners, and Consultants has been adopted (Yorkshire and Lincolnshire Advisory Group, July 2023). This outlines the phases of investigation and risk assessment, and what should be included in the reports.

• Phase 1 - Desktop Study, Site Walkover and Sampling Strategy or Screening Assessment
• Phase 2 - Site Investigation and Risk Assessment
• Phase 3 - Remediation and Verification Strategy
• Phase 4 - Verification and Completion Report

Building Regulations

The Building Regulations 2010 Part C, C1. (2) and approved Document C, Site Preparation and Resistance to Contaminants and Moisture (2004 edition), contain specific requirements regarding contamination and landfill gas issues. These require measures to be taken to protect new buildings, and their future occupants, from the effects of contamination, including hazardous ground gases.

The Water Resources Act 1991

The Water Resources Act 1991 provides the Environment Agency with powers to take action to prevent or remedy the pollution of controlled waters. The Act is particularly useful in cases where there is historic pollution of groundwater, but where the Part 2A regime cannot be applied, for example, where pollutants are entirely contained within the relevant body of groundwater or where the source site cannot be identified.

Local Authority Integrated Pollution Prevention Control

The regulation and operation of installations under Local Authority Integrated Pollution Prevention Control are legislated under the Environmental Permitting (England and Wales) Regulations 2016 and the Industrial Emissions Directive (IED) (2010/75/EU) which are the provisions for dealing with contamination resulting from a breach of an environmental permit. 

Article 22 (2) of the Industrial Emissions Directive requires operators of some installations to submit a baseline report of the state of soil and groundwater of the site prior to operating. This is implemented in the Local Authority Integrated Pollution Prevention Control Regime, requiring some permit applications to include a site report describing the baseline condition of the site of the installation, identifying any substance, on or under the land which may constitute a pollution risk. Consideration to the European Commission Guidance for Baseline Reports will be given.

On surrender of the permit, the operator must be able to demonstrate no deterioration of the baseline condition has occurred because of the permitted activities or will be required to restore the land and groundwater to its original state.

Environmental Permits issued by the Environment Agency are subject to the same requirements.

Environmental Damage Regulations 2015

The Environmental Damage (Prevention and Remediation) Regulations 2015 provide additional enforcement powers for the prevention and regulation of land contamination. These can be applied to allow a rapid reactive resolution to land contamination caused by a pollution incident. The regulations define environmental damage as damage to:

• (a) protected species or natural habitats, or sites of Special Scientific Interest (SSSI's)
• (b) surface water or groundwater with a deterioration in the water's status
• (c) contamination of land that results in a significant risk of adverse effects on human health

The Environment Agency, Natural England, Local Authorities, and the Secretary of State are the enforcing authorities responsible for administering and enforcing the regulations in England and Wales, depending on the type of damage involved. The enforcing authority must establish whether damage is 'environmental damage' and identify a responsible operator to serve a remediation notice taking account of any measures proposed by the operator.

Prioritisation   

The original Strategy (A Strategy for Remediation and Reclamation of Contaminated Land, Stockton-on-Tees Borough Council, April 2001) upon identifying and prioritising areas of contaminated land within the Borough. The Council conducted a site categorisation exercise using the Babtie Group Limited software and methodology set out in the Identification, Prioritisation and Risk Ranking of Potentially Contaminated Land (Babtie Group Limited, June 2002) and the Contaminated Land Research Report CLR Report 6 [1995] Prioritisation and Categorisation Procedure.

The risk categorisations have been assigned as preliminary priority categories (PPC), PPC1 being the highest risk category, PPC4 the lowest risk category. A spacial model was developed using a standard Geographical Information System (QGIS) software to overlay the sites and to assess the spatial relationship between potentially contaminated land and environmental pathways.

Whilst the methodology did not explicitly mention controlled waters, it lays out the basic framework for considering the impact of contaminated land on groundwater by considering past uses and the proximity of sensitive receptors including water bodies.

The PPC categorisation may alter as additional information becomes available through further investigation and to further refine the order of priority of these sites. The information held includes details of site investigation and remediation reports.

Table 1 - CLR 6 - Priority categories

Progress with previous strategies

The 2014 to 2019 Strategy proposed that the focus for contaminated land would be on high priority sites where human health is of greatest concern. Following completion of initial preliminary in 2001, the Council secured funding for sites deemed high priority.

At the time of publication approximately 58 high priority sites (PCC1) of potential contaminated land had been completed and two high risk priority sites (PCC1) which are incomplete.

As a result of the inspection programme, one site has been determined as contaminated land under Section 78 of the Environmental Protection Act 1990 (Section 78 of the Environmental Protection Act 1990). This is located at the former Yarm Gas Works at West Street, Yarm.

Inspections under Part 2A shall continue where required to be investigated by the Environment Agency at the request of Stockton-on-Tees Borough Council. A priority action for the strategy is to update the list of sites being investigated by the Environment Agency and to provide a summary of these within the next Contaminated Land Strategy.

During 2019 to 2024 our closed landfill sites at Whitton Village was prioritised for assessment on the basis for potential gas migration. Significant infrastructure upgrades were undertaken in 2022, improving the management of landfill gas and monitoring system for the next 15 years.

Stockton-on-Tees Borough Council manages the Cowpen Bewley Effluent Plant at Cowpen Bewley Woodland Park, Billingham. Both sites will require long term management and monitoring to manage the risks posed to environmental receptors.

Sites assessed through the planning regime

The work undertaken through the planning regime is an ongoing process which enables the assessment of land which is potentially contaminated. This involves all sites, irrespective of the risk categories, which meet the criteria for a contaminated land assessment.

Where the potential for contamination exists, or where the proposed development is vulnerable, the possibility of contaminated land should be assessed. Technical Guidance for Developers, landowners, and Consultants (Yorkshire and Lincolnshire Advisory Group, July 2023) provides guidance to good practice and consistency for development on land affected by contamination.

Between 2019 to 2024 Environmental Health has assessed approximately 382 sites through the Planning Regime, and this work involves assessment of land conditions via submission of preliminary desk top study, site investigation reports, remediation, and validation of site work.

Any site where there is the potential for contamination exists, or where the proposed development is vulnerable, the possibility of contaminated land should be assessed, irrespective of the risk categorisation.

The contaminated land conditions have been reviewed in accordance with the updated Land Contamination Risk Management Guidance (Environment Agency, updated July 2023) and other relevant guidance documents. As a minimum, after the new development is completed, the land should be suitable for its new use and not meet the legal definition of contaminated land.

Aims of the strategy

• a) the approach to historic pollution of land is rational, ordered, and efficient
• b) priority given to land that to pose the greatest risk to human health or the environment
• c) encourage the re-use and remediation of brownfield land through the planning regime in accordance with the National Planning Policy Framework to ensure that new developments are suitable for use
• d) encourage voluntary action to deal with land contamination issues as far as it considers reasonable and practicable
• e) part 2A determination shall only be considered where no appropriate alternative solution exists and other legislative means to address contaminated land have been considered
• f) action is proportionate to the seriousness of any actual or potential risk
• g) ensure wherever possible that the original polluter pays for land remediation
• h) liaise with all internal and external partner agencies where required: Natural England, Environment Agency, Tees Archaeology, Public Health England, Cleveland Fire Authority
• i)  communicate the risk of potential or actual presence of contamination to all interested parties including the local community, residents, internal and external agencies, and businesses
• j) promote sustainable development within the Borough

Priority actions and timescales for 2024 to 2029

Table 2 - Priority Actions and Timescales 2024 to 2029

Dealing with unforeseen urgent sites

Where information is received indicating the possibility of imminent significant harm to health or imminent significant pollution of controlled waters, a strategic preliminary site assessment (desk top study) will be carried out to determine the likelihood of such an event occurring. Where it is identified that a significant contaminant linkage is likely to exist, urgent action to carry out further investigation will be necessary, and an action plan will be drawn up and implemented. 

This work would take priority over the scheduled programme of work for 2024 to 2029.

Definition of Contaminated Land

The EPA 1990 [Section 78A (2) of Part 2A of the Environmental Protection Act 1990] provides the definition of contaminated land as:

Any land which appears to the local authority, in whose area it is situated, to be in such a condition, by reason of substances in, on or under the land that -

• (a)  significant harm is being caused or there is a significant possibility of such harm being caused
• (b)  significant pollution of controlled waters is being caused, or there is a significant possibility of such pollution being caused

To be determined as Part 2A contaminated land there must be a 'Significant Contaminant Linkage' or significant possibility of such a linkage. The potential for harm is assessed using a tiered risk assessment approach using the scientific evidence available, and the local authority should be satisfied, that on the balance of probabilities, that significant harm is being caused by a particular contaminant.

Pollution of controlled waters

The contaminated land strategy includes pollution of "controlled waters" and includes rivers, coastal waters, inland freshwaters, and groundwater. This is defined in Part 3 of The Water Resources Act 1991, with the exception that "ground waters" do not include waters contained in underground strata, thereby including strata above the saturation zone.

The pollution of controlled waters is defined as "the entry into controlled waters of any poisonous, noxious or polluting matter or any solid waste matter." [Section 78A (9) of Part 2A of the Environmental Protection Act 1990] the following types of pollution should be considered to constitute significant pollution of controlled waters: 

• (a) pollution equivalent to "environmental damage" to surface water or groundwater as defined by The Environmental Damage (Prevention and Remediation) Regulations 2015 but cannot be dealt with under those regulations
• (b) inputs resulting in deterioration of the quality of water abstracted, or intended to be used in the future, for human consumption such that additional treatment would be required to enable that use
• (c) a breach of a statutory surface water Environment Quality Standard, either directly or via a groundwater pathway
• (d) input of a substance into groundwater resulting in a significant and sustained upward trend in concentration of contaminants (as defined in Article 2(3) of the Groundwater Daughter Directive (2006/118/EC)

Pollution linkages

For any land to be identified as contaminated land at least one contaminant linkage needs to be established. All three elements of a contaminant linkage must exist for land to be considered as 'contaminated' with evidence of the presence of contamination.

• (a) a "contaminant" source is a substance which is in, on or under the land and which has the potential to cause harm to a relevant receptor, or to cause pollution of controlled waters
• (b) a "pathway" is a route by which a receptor is or might be affected by a contaminant
• (c) a "receptor" is something that could be adversely affected by a contaminant, for example, a person, an organism, an ecosystem, property, or controlled waters

Where a connection is identified, developing a Conceptual Site Model is a fundamental aspect of understanding the linkage. This involves a written or schematic description of the specific site features, the contaminants of concern and the risks posed to receptors.

Determining what constitutes a "significant contaminant linkage" can be an extremely complex process. Stockton-on-Tees Borough Council will make its decision based on the best available evidence at the time of the investigation and on an individual site basis. Consideration may be given to the number of people who might be exposed to the risk and the scale of the seriousness of harm.

Inspection process

The current best practice methodology for detailed investigations is specified by the Environment Agency is the Land Contamination Risk Management (LCRM) Guidance (Environment Agency, updated Jul 2023). The guidance specifies various procedures, practices, methodology, stages of the process and acceptable British Standards, as well as other guidance documents which can be used.

The staged process commences with a strategic preliminary inspection which is informed by the collection of desk-based information and a site walkover, possibly with limited soil and or water sampling. Where this strategic preliminary risk assessment suggests that further understanding of the risks is required, a more detailed site inspection is then carried out.

Detailed site inspection commences with a generic quantitative risk assessment whereby detailed information on the ground conditions is collected to further develop the site conceptual model through gaining a more thorough understanding of the risks and uncertainties involved.

Depending on the findings of the generic quantitative risk assessment it may become necessary to carry out various further stages of more detailed risk assessment to support a decision as to whether a site meets the definition of contaminated land under Part 2A.

Following completion of the detailed site investigation and risk assessment, the analyses derived from the sampling will be used to complete a Detailed Quantitative Risk Assessment (DQRA), the outcome of which is used as an indicator of the possibility of harm.

During the detailed inspection process, the Council will seek to gain voluntary cooperation with the owner or occupier of the land. It is beneficial to establish this early, particularly should further works and remediation be necessary. If there is nation or the owner of the land cannot be found, the Council should then consider using their statutory powers of entry under section 108 of the Environment Act 1995.

Risk evaluation criteria for human health

For human health, the findings of detailed inspections of soil will be compared against generic and site-specific assessment criteria, generated using the most up to date version of CLEA UK Model (Contaminated Land Exposure Assessment). The evaluation criteria to assess the risks are derived using generic assumptions about the characteristics and behaviour of contaminants, the pathways, and the exposed population. The model derives generic land use scenarios to derive Soil Guideline Values (SGV) using health criteria values which are associated with minimal risk.

Contaminants in ground water and surface water, will be assessed for their risk to human health, by comparing to the UK Drinking Water Standards (DWS) and environmental quality standards. For controlled waters, hydrogeological risk assessment guidance tools will be used to protect the aquatic environment (Environment Agency, LCRM, July 2023).

In terms of ecological assessment, the most up to date guidance on the use of soil screening values in ecological risk assessment will be used, such as soil screening values proposed by the Environment Agency (January 2022) "Derivation and Use of Soil Screening Values for Assessing Ecological Risks."

In March 2014, DEFRA published guidance on the derivation and use of Category 4 Screening Levels (C4SL). This produced levels for specific contaminants (Arsenic, Benzene, Benzo(a)pyrene, Cadmium, Chromium (VI) and Lead), for six common land use types, for which the statutory definition of Contaminated Land under Part 2A had not been met and provides guidance to determine the most appropriate risk category.

Normal levels of contaminants

The statutory guidance states that the Part 2A regime should not apply to land with levels of contaminants in soil that are commonplace and widespread throughout England and for which in most cases there is no reason to consider that there is an unacceptable risk. 

Technical Guidance Sheets on Normal Background Levels of Contaminants in English Soils (Defra, October 2012) was commissioned to support the revised Statutory Guidance in evaluating whether land is contaminated. Normal levels of contaminants in soil may be the result of the natural presence of contaminants or the presence of contaminants caused by low level diffuse pollution, and common human activities other than past industrial uses. 

Procedure for determining land as Contaminated Land under Part 2A 

Following strategic preliminary inspections, Stockton-on-Tees Borough Council may be able to place some sites within Category 4 where no relevant contaminant linkage exists. Further risk assessment may be necessary for other sites to place them into Categories 1 to 3.

The Statutory Guidance states that where all factors are considered, if the local authority cannot decide whether a significant possibility of significant harm exists, it should conclude that the legal test has not been met and the land shall be placed in Category 3.

Following completion of a detailed site investigation and risk assessment, the site conceptual model will be updated to show whether one or more significant contaminant linkages exist or otherwise. Where one or more significant contaminant linkages exist between any sources of contamination and relevant receptors under Part 2A, the Environmental Protection Team will follow the procedure for determining that land as contaminated land, as set out in Section 78A (2) of the Environmental Protection Act 1990 and the revised Statutory Guidance and the land will be placed in either Category 1 or Category 2.

Stockton-on-Tees Borough Council may decide to defer the determination of contaminated land after informing interested parties because the landowner or other interested person may choose to undertake the remediation on a voluntary basis, and to an appropriate standard and timescale, agreed with the Environmental Protection Team.

The determination may also be postponed should one or more significant contaminant linkages only exist if the circumstances of the land were to change in the future within the bounds of the current use of the land.

Stockton-on-Tees Borough Council may reconsider a determination if new information comes to light, which is significant enough to alter the original decision. In such cases, Stockton-on-Tees Borough Council will decide whether to retain, vary or revoke the determination. The determination may also be postponed should one or more significant contaminant linkages only exist if the circumstances of the land were to change in the future within the bounds of the current use of the land.

Risk categories for sites investigated under Part 2A

The Statutory Guidance (Defra 2012) introduced 4 risk assessment categories for sites investigated under Part 2A.

Table 3 summary of risk categories

Designating special sites

Local Authorities have been given the primary regulatory role under S.78B (1) Part 2A of the Environmental Protection Act 1990 for determining whether any land within their borough is contaminated and for deciding whether any such land should be designated as a special site.

If Stockton-on-Tees Borough Council identifies land which it considers would be likely to meet one or more of the descriptions of a special site set out in the Contaminated Land (England) Regulations 2006, it should consult the Environment Agency and subject to the Agency's advice and agreement, to arrange for the Agency to carry out any intrusive investigations of the land on behalf of the authority. 

The 4 main groups are cases consisting of:

1. water pollution - wholesomeness of drinking water, surface water classification criteria, major acquifers
2. industrial sites - waste acid tar lagoons, oil refining, explosives, sites regulated under the Integrated Pollution Control Regulations which have become contaminated
3. defence
4. radioactivity

Where the agency carries out an inspection on behalf of Stockton-on-Tees Borough Council, the inspection duty, and the decision as to whether land is contaminated land, remain the sole responsibility of the Council.

Where decisions are not straightforward, and where there may be unavoidable uncertainty underlying some of the facts of each case, consideration shall be given to.

• alternative means of dealing with associated risks to human health and the environment
• the benefits to human health and the environment of remediating land to remove or reduce those risks (including the taxpayer where relevant)
• the potential impacts of regulatory intervention including the financial costs to whoever will pay for remediation, property blight, and burdens on affected people
• a precautionary approach shall be undertaken to the risks raised by contamination, whilst avoiding a disproportionate approach given the circumstances of the case
• part 2A determination shall only be considered where no appropriate alternative solution exists and other legislative means to address contaminated land have been considered

Written statements

The Statutory Guidance (2012) requires written statements to be issued by the local authority stating the land is not considered to be contaminated under the legislation to minimise unwarranted blight.

In such cases, the Council will issue a Written Statement to that effect (rather than coming to no formal conclusion). The Council will consider making Written Statements available to other interested parties proactively and will always provide Written Statements on request.

Remediation

The enforcing authority for the purposes of remediation may be the local authority which determined the land, or the Environment Agency, which takes on responsibility once land has been determined if the land is deemed to be a "special site". Once a site has been determined as contaminated land, Stockton-on-Tees Borough Council will have regard to the Statutory Guidance and relevant technical documents in deciding what remediation action shall be taken. In doing so the Authority may also consult with a suitably qualified experienced practitioner.

In deciding what is reasonable, the authority must consider:

(a) the practicability, effectiveness, and durability of remediation

(b) the health and environmental impacts of the chosen remedial options

(c) the financial cost which is likely to be involved

(d) the benefits of remediation regarding the seriousness of the harm or pollution of controlled waters in question

Prior to determination, the Authority will issue a risk summary explaining why the land is considered contaminated and outline the remediation required. Voluntary action to deal with contaminated land will be encouraged as far as it is considered reasonable and practicable. In doing so, a broader approach and other legislation will be utilised as part of wider regeneration work.

If Voluntary Remediation cannot be agreed or additional information has not been provided to that would require a review of the determination notice, the Authority will issue a Remediation Notice to the "appropriate person." The Remediation Notice will provide details of the remediation required.

Liability

The factors to consider in establishing the liability for remediation set out in the Guidance, imposes liability in respect of actions done in the past which may not have given rise to liabilities as the law stood at the time the pollution occurred.

This is apportioned to parties defined legally as persons. When identifying appropriate persons, each significant contaminant linkage is treated separately (unless it is reasonable to treat more than one linkage together because the same parties are liable).

Section 78F of the legislation defines who may be an "appropriate person," for example, a person is liable if they "caused or knowingly permitted" the contaminating substance(s) "to be in, on or under" the land in question. If no such person, "after reasonable inquiry", can be found, the responsibility for remediation falls to the owner or occupier of the land.

The statutory guidance specifies various classes of persons who are liable for the cost of remediation, as outlined below.

Table 4 Classes of persons liable for remediation costs

Due to the various exclusion tests outlined in the statutory guidance, it is important to note that identifying the appropriate person can be a lengthy process. Additionally, sites may have an extensive historic succession of land ownership and different components of a contaminated site may be attributable to different polluters, over different periods of time.

The Environmental Protection Team will implement the Contaminated Land Strategy, make determinations of contaminated land under Part 2A and carry out statutory enforcement on behalf of Stockton-on-Tees Borough Council. These statutory duties will be carried out by the Environmental Protection Team Manager and the Senior Environmental Health Officer.

CLANNERS (Contaminated Land Northeast Regions) regional meeting is held each quarter. Part 2A and the Contaminated Land Strategy is a regular agenda item in which changes to guidance are discussed and best practice information is shared by local authorities on their experience in investigating and risk assessing sites. Environment Agency representatives attend the meetings and provide valuable input regarding controlled waters as well as delivering training sessions to the group.

The TVEPG (Tees Valley Environmental Protection Group) local to the Tees Valley Authorities and local Environment Agency is held 6 times per annum and contaminated land is a standing agenda item.

Use of consultants

Stockton-on-Tees Borough Council may on occasion use consultants to carry out site investigations and risk assessments on their behalf using the Council's Framework Agreement.

For planning development proposals consultants must meet the National Planning Framework definition of a competent person in Annex 2 - a person with a recognised relevant qualification, sufficient experience in dealing with the type(s) of pollution or land instability, and membership of a relevant professional organisation.

For other regimes, the LCRM Guidance (Environment Agency, 2023) requires demonstration of the appropriate knowledge, skills, experience, and qualifications in the specific area concerned. This includes.

• Suitably Qualified Person (SQP) registered under the NQMS
• the SoBRA accreditation scheme
• Specialists in Land Condition (SiLC)
• membership of a professional organisation relevant to land contamination
• specialist in the Gas Protection Verification Accreditation Scheme (GPVS)
• a proven track record of dealing with land contamination, for example, knowledge and experience of the Part 2A regime or someone who regularly deals with the technical aspects of land contamination

Delegated powers

The Environmental Health Service Manager, Environmental Protection Team Manager and the Senior Environmental Health Officer have delegated powers to act under Part 2A of the Environmental Protection Act 1990 and Section 108 of the Environment Act 1995.

Powers of entry

The requirements of Section 108 of the Environment Act 1995 relate to the Statutory Powers of Entry regarding the inspection of land under Part 2A and are detailed in Sections 2.10-2.11 of the revised Statutory Guidance. Stockton-on-Tees Borough Council will use these powers in the situation where the landowner refuses entry or cannot be found.                      

Health and safety                                        

Prior to conducting site work, a health and safety risk assessment will be undertaken in accordance with Health and Safety legislation and the Council's Corporate Health and Safety Policy. This will determine the risks to personnel carrying out the various phases of work involved and assist in the implementation of controls to remove or reduce risks identified to the lowest practicable level.

Any contractor or consultant appointed to carry out investigation work for Stockton-on-Tees Borough Council will be supplied with relevant information held about the site and will be required to carry out suitable and sufficient risk assessments that ensure the health, safety and welfare of themselves and others.

Consultant and contractor risk assessments will be vetted by the Council for their general health and safety competence prior to work commencing and to demonstrate that they are fully compliant with health and safety legislation.

All necessary control measures highlighted in the risk assessment will be implemented prior to the commencement of site works and will be reviewed during the works.

Relevant guidance on Health and Safety aspects of site inspection will be followed [Protection of Workers and the General Public during the Development of Contaminated Land. HSE, 1991] during the development or assessment of contaminated land. 

Information and complaints

Upon receipt of information regarding land contamination or water pollution, an officer from Environmental Protection will acknowledge receipt of this within 3 working days in accordance with appropriate work instructions. All information received will be recorded in accordance with the corporate service request procedure. The customer will be contacted by an officer to verify the source and details of the information. Customers will be kept updated on actions taken and their identity will remain confidential.

Information provided anonymously will be acted upon as if it had been given by an identified person as far as is possible.

Staffing

The following posts exist in the establishment to deal with contaminated land:

1. Senior Environmental Health Officer 1 full time post [1FTE]
2. Environmental Protection Team Manager [as required]
3. Environmental Health Service Manager [as required]

Risk assessment software

Stockton-on-Tees Borough Council purchased the Jacobs site categorisation software which is linked to the Geographical Information System 4 [GIS4] for the purpose of prioritising potentially contaminated sites.

The database will be updated as new information about a site is received, and the risk categorisation adjusted. The system is to be reviewed and updated to incorporate new themes and environmental information.

The data sets which will be updated by the Contaminated Land Officer includes desk top studies, site investigation, remediation reports, and Local Authority Integrated Pollution Control Authorisations. The external datasets are also to be updated and include discharge consents, waste management licenses and active licenses, British Geological Survey and Defra Environmental Data.

The information will be used to support planning application and Environmental Information requests under the Environmental Information Regulations 2004. The reports will be used during strategic preliminary inspections of sites and to determine whether further intrusive site investigations are required.

Requests for environmental information

Stockton-on-Tees Borough Council will comply with the provisions of the Environmental Information Regulations 2004, the Freedom of Information Act 2000, Data Protection Act 2018, and the General Data Protection Regulations (GDPR) 2019 in all responses to requests for environmental information.

Care will be taken to ensure that the information provided is as accurate and correct as possible to avoid 'blighting' land and raising unfounded concerns.

Environmental information requests are normally to provide environmental information pertaining to property sales or development.

Data confidentiality

Site Prioritisation Inspection List of potentially contaminated sites is held using appropriate organisational and technical measures to comply with the General Data Protection Regulations (GDPR) 2019, in accordance with the Councils Policy on data protection.

This data that is held is mainly incomplete and unverified and therefore reports, including conclusions based on strategic preliminary information, or incomplete data pertaining to sites that are potentially contaminated, will be treated as confidential. 

Part 3 12(4)(d) of the Environmental Information Regulations 2004 provides an exemption for disclosing incomplete data.

Information provided to the Council by a third party during its inspection and assessment of land for potential contamination, will also be classified as confidential and will only be disclosed for public inspection with the prior agreement by the information provider.

Public register                                                                                                               

Section 78R of the Environmental Protection Act 1990 requires Stockton-on-Tees Borough Council to maintain a Public Register relating to actions pertaining to land which has been formally identified as contaminated land. The Public Register of Contaminated Land is available for viewing during normal office hours, by prior appointment at:

Environmental Health Unit
16 Church Road
Stockton-on-Tees
TS18 1XD

Telephone: 01642 526575
Email: Environmental.Services@stockton.gov.uk

Internal liaison

Environmental Protection will liaise throughout the inspection process with relevant sections of the Council, in particular Planning, Building Control, Regeneration and Legal. The Leader of the Council, Ward Councillors, the Cabinet Member for Environment, the Head of Service will be informed of site investigation works and the outcome of these works.

External liaison

The Statutory Guidance states that developing an understanding of risks in complex cases may raise issues which are beyond the expertise of one person and may require the involvement of others to conduct a robust risk assessment. The question of whom to consult will depend largely on the circumstances of the land, and expertise and gaps in expertise of the person carrying out the risk assessment. Stockton Borough Council will liaise with the necessary Agencies as appropriate depending on the circumstances of the case. Where warranted, the Council will consider employing the services of external consultants and legal representatives.

Stockton-on-Tees Borough Council will always consult with the Environment Agency when trying to establish through the risk assessment process when there is evidence that the site in question is a potential special site in this case the Council would formally request that the Environment Agency carry out the intrusive inspection of the land on its behalf.

Stockton-on-Tees Borough Council will consult the Public Health England [PHE] formerly the Health Protection Agency [HPA] when trying to establish through the risk assessment process whether significant harm is being caused or there is a significant possibility of such harm being caused to health. PHE will be asked to work with the Council to assist in the communication of advice regarding health effects and may assist with information, such as leaflets and information packs aimed at the interested parties.

Stockton-on-Tees Borough Council will consult Natural England when considering whether land might meet the definition of contaminated land by virtue of an ecological system effect.

Where there is potential evidence that the site in question is of archaeological or historic interest, established through the risk assessment process, Stockton-on-Tees Borough Council will consult with Tees Archaeology to establish whether any works proposed shall not cause potential damage to the historic environment.

Communication strategies

Prior to site investigation works for the highest priority sites, Environmental Protection will develop communication strategies with the assistance of the Corporate Communication teams, as necessary.

Communication strategies will aim to:

1. address the site investigation works
2. inform and update key milestones to all interested parties on a regular basis throughout the site investigation process
3. provide information packs for residents, including historical information on previous land use, details of the site investigation work, frequently asked questions, and contact details
4. provide an opportunity for interested parties to communicate directly with a designated officer
5. reassure interested parties for all aspects of the site investigation works
6. gain the support of residents, landowners, land users, the wider public and other interested parties for the site investigation works
7. manage the perceived risk to all interested parties
8. anticipate and manage any potential crisis situations that may generate negative publicity for the site investigation works or Stockton-on-Tees Borough Council

Consultation of the Contaminated Land Inspection Strategy

The 2024 to 2029 Strategy has been reviewed in accordance with the advice provided in the DEFRA Contaminated Land Statutory Guidance published in April 2012.

Statutory bodies, other sections of the Council, Councillors and the Tees Valley Authorities will be consulted on the draft Contaminated Land Inspection Strategy in August 2024 and will be invited to provide comments.

The full list of consultees is provided in Appendix 5.

The Contaminated Land Inspection Strategy proposes a 5-year work programme for the inspection process The next review of the Strategy is expected to be undertaken at the end of 2029 or earlier if required by statute.

Responses from external consultees

The Council will consider all comments on this draft strategy and has amended the final document accordingly.

External consultees include the following organisations:

• Environment Agency
• Northeast Public Health England
• Natural England
• Tees Archaeology
• Cleveland Fire Brigade
• Tees Valley Local Authorities (Hartlepool, Redcar and Cleveland, Middlesbrough, Darlington)

Characteristics

Divided by the river Tees that runs east to west, the Borough of Stockton-on-Tees is situated in the north east of England. Covering an area of 20,400 hectares, it has a population of 178,000 with 75,000 dwellings the population density being 8.7 persons per hectare.

Stockton, with population of 82,500, is the main town with Thornaby (24,000) to the south and Billingham (35,000), dominated by the former ICI industrial complex, to the north. Around the river mouth, the reclaimed Seal Sands area is dominated by the chemical industry; in this area there are some protected areas for nature conservation. These include a National Nature Reserve [NNR], a Special Protection Area [SPA], RAMSAR site and three Sites of Special Scientific Interest [SSSI].

There are a number of small villages in the on the outskirts of the borough.

A large proportion (62.5 %) of the properties in the borough have gardens.

Historic and built environment

The borough has a history of mineral extraction, brick and tile manufacture, iron and steel manufacturing, shipbuilding, engineering works and chemical works.

This is evidenced by its archaeological remains and historic buildings. The Tees Archaeology Historic Environment Record (HER) is a database of heritage assets in Hartlepool and Stockton managed by Tees Archaeology. It includes archaeological sites and standing remains dating from the prehistoric and Roman periods through Anglo-Saxon and medieval periods, to post-medieval and industrial remains. The earlier sites in the borough are complemented by more recent heritage, such as the new town of Billingham, founded around ICI in the early 1920s and the latter 20th century oil and chemical industry based at Seal Sands.

The borough owes its origins to the River Tees, a feature whose economic prominence is gradually being restored. Previously a tidal river, a Barrage, completed at the end of 1994, now maintains its height at, more or less, high tide level.

Stockton contains 8 Scheduled Monuments which are afforded protection by Part 2A. Scheduled Monuments are protected by the Ancient Monuments and Archaeological Areas Act 1979. Listed buildings, also of national importance, are protected by the Planning Act 1990. Non-designated above and below-ground heritage assets (identified in the HER) are protected by policies in the Stockton Local Plan.

Geological and hydro geological characteristics

The geology of the area shows predominantly Sherwood Sandstone (in the central area, which is an aquifer), Mercia Mudstone (to the east, which is a non-aquifer) and Permian Upper Marls (to the west, which is a non-aquifer). A dolerite dyke, known as the Cleveland Dyke, runs approximately NW to SE.

The solid geology is overlaid with drift deposits of boulder clay, laminated clay, littoral sand and glacial sand and gravel.

Within the borough, there are only two principal water abstraction points where the water is used for drinking purposes or food use (one in Stillington and one at United Biscuits at Billingham). The EA has identified one Source Protection Zone [SPZ] for the drinking water abstraction source. In addition there are several groundwater and surface water abstractions in the area.

Ground vulnerability maps indicate that most of the area has low permeability drift deposits which overlay the aquifers.

The Contaminated Land (England) Regulations 2006 include the description of sites which if contaminated land should be considered as a special site.

These criteria were amended in April 2012 and the current provisions are as follows.

Special Sites

1. Contaminated land of the following descriptions is prescribed for the purposes of section 78C (8) as land required to be designated as a special site:

• a) land affecting controlled waters in the circumstances specified in regulation 3
• b) land which is contaminated land by reason of waste acid tars in, on or under the land
• c) land on which any of the following activities have been carried on at any time:

(i) the purification (including refining) of crude petroleum or of oil extracted from petroleum, shale, or any other bituminous substance except coal

(ii) the manufacture or processing of explosives

• d) land on which a prescribed process designated for central control has been or is being carried on under an authorisation, where the process does not solely consist of things being done which are required by way of remediation
• e) land on which an activity has been or is being carried on in a Part A (1) installation or by means of Part A (1) mobile plant under a permit, where the activity does not solely consist of things being done which are required by way of remediation
• f) land within a nuclear site
• g) land owned or occupied by or on behalf of:

(i) The Secretary of State for Defence

(ii) The Defence Council

(iii) an international headquarters or defence organisation

(iv) the service authority of a visiting force, being land used for naval, military or air force purposes

• h) land on which the manufacture, production, or disposal of:

(i) chemical weapons

(ii) any biological agent or toxin which falls within section 1(1)(a) of the Biological Weapons Act 1974(1) (restriction on development of biological agents and toxins)

(iii) any weapon, equipment or means of delivery which falls within section 1(1)(b) of that Act (restriction on development of biological weapons), has been carried on at any time

• i) land comprising premises which are or were designated by the Secretary of State by an order made under section 1(1) of the Atomic Weapons Establishment Act 1991(2) (arrangements for development including of nuclear devices)
• j) land to which section 30 of the Armed Forces Act 1996(3) (land held for the benefit of Greenwich Hospital) applies
• k) land which is contaminated land wholly or partly by virtue of any radioactivity possessed by any substance in, on or under that land
• l) land which:

(i) is adjoining or adjacent to land of a description specified in any of subparagraphs (b) to (k)

(ii) is contaminated land by virtue of substances which appear to have escaped from land of such a description

2. for the purposes of paragraph (1)(b), "waste acid tars" are tars which:

• a) contain sulphuric acid
• b) were produced as a result of the refining of benzole, used lubricants or petroleum
• c) are or were stored on land used as a retention basin for the disposal of such tars

Regulation 3 Pollution of Controlled Waters

3. the circumstances to which regulation 2(1) (a) refers are where:

• a) controlled waters which are, or are intended to be, used for the supply of drinking water for human consumption are being affected by the land and, as a result, require a treatment process or a change in such a process to be applied to those waters before use, so as to be regarded as wholesome within the meaning of Part 3 of the Water Industry Act 1991(1) (water supply)
• b) controlled waters are being affected by the land and, as a result:

(i) those waters do not meet or are not likely to meet the criterion for classification applying to the relevant description of waters specified in regulations made under section 82 of the Water Resources Act 1991(3) (classification of quality of waters)

(ii) for controlled waters that are designated as protected areas under Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy (4), those waters do not meet the environmental objectives that apply to them under that Directive (excluding protected areas listed in paragraphs (i), (iv) and (v) of Annex IV to that Directive)

• c) controlled waters are being affected by the land and: 

(i) any of the substances by reason of which the pollution of the waters is being or is likely to be caused falls within any of the families or groups of substances listed in paragraph 1 of schedule 1 to these regulations

(ii) the waters, or any part of the waters, are contained in underground strata within the saturation zone which comprise wholly or partly any of the formations of rocks listed in paragraph 2 of schedule 1 to these regulations

Sections 2.10 to 2.11 of the revised Statutory Guidance (April 2012) states the requirements for when to use Statutory Powers of Entry for the inspection of land under Part 2A in accordance with Section 108 of the Environment Act 1995. Stockton-on-Tees Borough Council will use statutory powers of entry in the situation where the landowner refuses entry or cannot be found.

If the local authority intends to carry out an inspection using statutory powers of entry under Section 108 of the Environment Act 1995 it should first be satisfied that there is a reasonable possibility that a significant contaminant linkage may exist on the land. The authority should not use statutory powers of entry to undertake intrusive investigations, including the taking of sub-surface samples, if:

(a) it has already been provided with appropriate, detailed information on the condition of the land (for example, by the Environment Agency or some other person such as the owner of the land) which provides sufficient information for the authority to decide whether the land is contaminated land

(b) a relevant person (for example, the owner of the land, or a person who may be liable for the contamination) offers to provide such information within a reasonable and specified time, and then provides such information within that time

Information to be placed on the Contaminated Land Public Register includes:

1) Site information:

• location or address
• plan
• National Grid Reference
• size of site
• extent of contamination

(2) Details of site reports and investigation works

(3) Remediation notices

(4) Remediation declarations, remediation statements and notifications of claimed remediation

(5) Name and address of each person who has claimed to have carried out remediation

(6) The period in which it is claimed remediation was carried out

(7) Details of sites designated as 'special sites'

(8) Details of any appeals against remediation or charging notices

(9) Details of convictions

The Contaminated Land Register of Public Information will not include:

(1) Details of historic land use data or other research records used in the investigation of potentially contaminated land

(2) Information that is against the national interest

(3) Information that is commercially confidential

Internal consultees

Place Development Manager: Ant Phillips

Valuation and Property Manager: Kieran Meighan

Planning Development Manager: Simon Grundy

Strategic Health and Well-Being Manager: Aishah Waithe

External consultees

Darlington Borough Council

Environmental Health
Town Hall
Darlington
DL1 50T

Telephone: 01325 388563
Email: environmentalhealth@darlington.gov.uk

Hartlepool Borough Council

Engineering Consultancy
Bryan Hanson House
Lynn Street
Hartlepool
TS24 7BT

Telephone: 01429 284024
Email: environmental.protection@hartlepool.gov.uk

Middlesbrough Borough Council

Environmental Health
PO Box 99A
Town Hall
Middlesbrough
Cleveland
TS1 2QQ

Telephone: 01642 726001
Email: envservices@middlesbrough.gov.uk

Redcar and Cleveland Borough Council

Environmental Protection Team
Belmont House
Rectory Lane
Guisborough
Cleveland
TS14 7FD

Telephone: 01642 774774
Email: env.protection@redcar-cleveland.gov.uk

Tees Archaeology

Sir William Gray House
Clarence Road
Hartlepool
TS24 8BT

Telephone: 01429 523455
Email: teesarcheology@hartlepool.gov.uk

Land Contamination Technical Specialist

Environment Agency
Northeast Office
Tyneside House
Skinnerburn Road
Newcastle Business Park
Newcastle upon Tyne
NE4 7AR   

Telephone: 0870 8506506
Email: enquiries@environment-agency.gov.uk

Northeast HPT

Public Health England
Floor 1
Barras Bridge
Newcastle upon Tyne
NE1 8QH

Telephone: 0300 303 8596
Email: NEHPU@ukhsa.gov.uk

Natural England

Lancaster House
Hampshire Court
Newcastle upon Tyne
NE4 7YH

Telephone: 0300 060 3900
Email: enquiries@naturalengland.org.uk

Cleveland Fire Authority

Training and Administration Hub
Endeavour House
Queens Meadow Business Park
Hartlepool
TS25 5TH

Telephone: 01429 874101
Email: cfa@clevelandfire.gov.uk

Contaminated Land Remediation - Cost Recovery Policy

It is the aim of this policy to demonstrate the considerations and procedure that will be undertaken by Stockton-on-Tees Borough Council (hereafter 'the Authority') when pursuing the recovery of its costs expended in contaminated land remediation. This policy forms an addendum to the Council's Adopted Contaminated Land Strategy. It is an objective of this document to promote transparency, fairness, and consistency within the process of remediation cost recovery under Part IIA of the Environmental Protection Act 1990 and in compliance with the statutory guidance.

The policy specifies circumstances where the Authority would be prepared to consider waiving or reducing the recovery of remediation costs having given due regard to hardship and other relevant factors. The policy will be made available as appropriate in the pursuance of duties under the above Act.

Cost Recovery Principles

Costs incurred for remediation work carried out by Stockton-on-Tees Borough Council on contaminated land, as determined under Part IIA of the Environmental Protection Act 1990, can be charged to the relevant 'Appropriate person or persons', subject to certain conditions.

Stockton-on-Tees Borough Council will recover costs following the 'Polluter Pays' principle by virtue of which all reasonable costs of remediation are to be borne by the polluter where possible.

The Cost Recovery Policy is limited only to Stockton-on-Tees Borough Councils "reasonable costs". This includes any costs incurred by the Environment Health Unit or other Units of the authority in managing or carrying out remediation of any land determined as contaminated. However, the Council will always seek to do such work economically.

Section 78P of the Environmental Protection Act provides that:

(1) where, by virtue of section 78N(3)(a), (c), (e) or (f) the enforcing authority does any particular thing by way of remediation, it shall be entitled, subject to sections 78J(7) and 78K(6) to recover the reasonable cost incurred in doing it from the appropriate person or, if there are two or more appropriate persons in relation to the thing in question, from those persons in proportions determined pursuant to section 78F(7)..."

(2) in deciding whether to recover the cost, and if so, how much of the cost, which it is entitled to recover under subsection (1) above, the enforcing authority shall have regard:

(a) to any hardship which the recovery may cause to the person from whom the cost is recoverable

(b) to any guidance issued by the Secretary of State for the purposes of this subsection

Stockton-on-Tees Borough Council will aim to recover remediation costs in a manner that is both fair and equitable.

Cost Recovery Procedure

Stockton-on-Tees Borough Council will:

• identify the appropriate person or persons in respect to the designated contaminated land, as defined under the tests detailed in Section 78F under Part IIA of the Environmental Protection Act 1990
• determine whether any of the exemptions from liability under sections 78J, 78K or 78X (3) apply and then carry out the processes of attribution, exclusion, and apportionment of liability
• establish the reasonable costs incurred in carrying out the remediation action
• apportion these costs between any identified Appropriate Persons for the remediation actions carried out

Stockton-on-Tees Borough Council will itself be responsible for any fraction of the costs that are apportioned to itself as an Appropriate Person, or which relate to Orphan linkages from the process of attribution. The Council will consider whether the apportioned share of costs for the remediation actions would cause hardship on the relevant appropriate person or persons.

Where recovering costs from a Class A appropriate person who also owns all or part of the contaminated land, the Council may recover its costs by serving a charging notice on the land. A charging notice cannot be used in other circumstances. If the appropriate person does not repay the amount that the Authority is seeking to recover, then Stockton-on-Tees Borough Council will consider pursuing a remedy in the County Court or the High Court as appropriate.

Hardship and the Waiving of Costs

Commercial enterprises and small and medium sized enterprises

The same approach will be adopted to all types of commercial or industrial enterprises, which are identified as appropriate persons. This will apply to public corporations, limited companies, partnerships, or an individual operating as a sole trader.

The Authority may choose to take account of such adopted policies relating to economic development of the Borough when determining cost recovery decisions.

Small and medium sized enterprises are defined as an independent enterprise with fewer than 250 employees, and either an annual turnover not exceeding £40 million or an annual balance sheet total not exceeding £27 million.

The Authority will consider:

• whether recovery of the full costs of remediation would mean that the enterprise is likely to become insolvent and thus cease to exist; and if so, the cost to the local economy of such a closure
• the Authority will consider whether the full recovery of remediation costs would cause any small or medium sized enterprise that is the appropriate person, to become insolvent and thus cease to exist. The Council will consider reducing the cost recovery to the extent required to avoid making the enterprise insolvent
• the Authority will not waive or reduce the recovery of costs where an enterprise has deliberately arranged matters to avoid responsibility for the costs of the remediation

Trusts

Where the appropriate persons identified include those acting as trustees, Stockton-on-Tees Borough Council will assume that such trustees will exercise all powers, which they have or may reasonably obtain to make funds available from the trust or from borrowing that may be made available for the trust for the purpose of paying for remediation.

The Authority would consider waiving or reducing costs to a level that is equal to the amount that can be made available from the trust where total remediation costs would exceed those funds available.

The Authority will not consider reducing the costs:

• where the trust was formed for the purpose of avoiding paying the remediation costs
• to the extent that trustees have personally benefited, or will personally benefit, from the trust

Charities

The Authority will consider reducing costs so as not to jeopardise the charities' ability to provide benefit or amenity, which is in the public interest. The extent of such a reduction would depend on the individual circumstances of the case and charity and the measure of public benefit afforded by the organisation.

This approach will also be applied to charitable trusts and charitable companies.

Social Housing Landlords

The Authority shall consider reducing or waiving costs if:

• the Appropriate Person is a body eligible for registration as a social housing landlord under section 2 of the Housing Act 1996
• its liability relates to land used for social housing
• full recovery would lead to financial difficulties for the Appropriate Person, such that the provision or upkeep of the social housing would be jeopardised

The extent of the waiver or reduction considered should be sufficient to avoid any such financial difficulties. If hardship would be endured by the appropriate person or persons then the Authority would explore options to reduce the possibility of such hardship being incurred. These options may include considering whether it could recover more of its costs by deferring recovery and securing them by a charge on the land in question under Section 78P. Such deferral may lead to payment from an appropriate person either in instalments or when the land is next sold.

The Authority may also consider whether cost recovery would be less likely to cause hardship if repayment was to be made in instalments over time. This may be particularly relevant where the Authority is able to secure its costs through a charging notice.

Specific considerations for Class A Persons

The Authority will not be willing to waive costs where it was while carrying on a business that the Class A person caused or knowingly permitted the presence of the significant pollutants. Reduction of costs will be considered where the person was not carrying on a business as he or she will be less likely to have earned profit from such an activity.

Where other potentially appropriate persons have not been found

The Authority will consider waiving or reducing its cost recovery from a Class A person who satisfactorily demonstrates that:

Another identified person who cannot now be found, also caused, or knowingly permitted the significant pollutant to be in, on or under the land in question; and

If that other person were to be found the Class A person seeking the waiver or reduction would either be excluded from liability by virtue of the Exclusion Tests set out in Part 5 Chapter D or the proportion of the costs would be significantly reduced by virtue of the guidance on apportionment in Part 6 Chapter D.

Specific considerations for Class B Persons

Costs in relation to land values

In some cases, the costs of remediation of a site may exceed the value of the land in relation to its current or proposed use.

In such cases the Authority will consider waiving or reducing its cost recovery from a Part B person where that person satisfactorily demonstrates that remediation costs do indeed exceed the lands value. In this context 'value' will be taken to mean the value that the remediated land would have on the open market at the time the cost recovery decision is made, disregarding any possible blight arising from the contamination.

The extent of the waiver or reduction in costs recovery should not exceed that which will ensure remediation is not greater than the value of the land in question.

Precautions taken before acquiring a freehold or a leasehold interest

The Authority will consider reducing costs recovery where a Class B person who is the owner of the land demonstrates to the satisfaction of the Authority that:

• he took such steps prior to acquiring the freehold, or accepting the grant of assignment of a leasehold, as would have been reasonable at that time to establish the presence of any pollutants
• when he acquired the land, or accepted the grant of assignment of the leasehold, he was nonetheless unaware of the presence of the significant pollutant now identified and could not reasonably have been expected to have been aware of their presence
• it would be fair and reasonable, considering the interests of national and local taxpayers, that he should not bear the whole cost of remediation

Owner occupiers of dwellings

Where a Class B person owns and occupies a dwelling on the contaminated land in question, the Authority will consider waiving or reducing its costs recovery where that person satisfies the Authority that, at the time the person purchased the dwelling, he did not know, and could not reasonably have been expected to know, that the land was adversely affected by the presence of a pollutant.

Any such reduction or waiver will only be granted to the extent necessary to ensure that the Class B person in question bear no more of the cost of remediation than it appears reasonable to impose, having regard to income, capital, and outgoings.

Where the appropriate person has inherited the dwelling or received it as a gift the above principles will be applied with respect to the time at which he received the property.

Where the contaminated land in question extends beyond the dwelling and its curtilage and is owned and occupied by the same appropriate person the above principles will be applied to the dwelling and its curtilage only.

Remediation under written agreement

In any case where the Authority has carried out remediation under the terms of a written agreement with the Appropriate Person or persons, any recovery of costs will be made under the terms of that agreement - the agreement is in effect a contract between the Council and the Appropriate Person or persons.

In a case of this kind, the normal cost recovery powers, in section 78P, do not apply, which means also that the limitations on recovery of costs relating to hardship and the Statutory Guidance also do not directly apply. The Appropriate Person in entering into an agreement with the Authority effectively waives their rights under the cost recovery policy and must abide by the terms specified by the written agreement.

Appropriate Persons seeking reduction or waiving of costs

In any case where an appropriate person is seeking a reduction or waiving of remediation costs the Authority will require:

• formal request made in writing to the Environmental Health Unit Manager
• the presentation of evidence in support of the above claim appertaining to one or more of the categories described above

The Authority will seek to obtain such information as is reasonable having regard to:

• how the information may be obtained
• the costs, for all parties, involved in obtaining the information
• the potential significance of the information for any decision

When the above circumstances are satisfied the Authority will give all due consideration to the request and provide the applicant with a decision in writing containing the reasoning behind how the decision was achieved.

In such cases a Charging Notice as specified by the Environment Act 1995 Section 78P would be served on the appropriate person. The Charging Notice shall:

• specify the amount of costs which the Authority is wishing to recover
• state the interest to be applied to the costs as determined by the Authority
• state the route of appeal available to the person concerned
• detail grounds for a charge on the premises concerned pursuant or otherwise to an appeal

Appeals against Charging Notices may be made to the County Court within the period of 21 days beginning with the date of service.

The Authority when seeking to enforce a charge under the above shall apply all powers and remedies, as appropriate, granted by the Law of Property Act 1925, and otherwise, as if it were a mortgagee by deed having powers of sale and lease, of accepting surrenders of leases and of appointing a receiver.

Aquifer: a body of rock or sediment that is sufficiently permeable to store and transmit water under the ground, in quantities that permit use of the water.

Apportionment: any determination by the enforcing authority under Section 78F (7) (that is, a division of the costs of carrying out any remediation action between two or more appropriate persons).

Appropriate person: defined in Section 78A (9) as: 'Any person who is an appropriate person, determined in accordance with section 78F, to bear responsibility for anything which is to be done by way of remediation in any particular case.'

Attribution: the process of apportionment between liability groups.

Contaminant: a substance, which is in, on or under the land and which has the potential to cause harm or to cause pollution of controlled waters.

Controlled waters: as defined by Part 3 of the Water Resources Act 1991 which includes relevant territorial waters, coastal waters, inland freshwaters and groundwaters (any waters contained in underground strata). However, for Part 2A purposes groundwaters does not include waters contained in underground strata that are above the saturation zone.

Cost recovery decision: any decision by the enforcing authority whether:

(a) to recover from the appropriate person all the reasonable costs incurred by the authority in carrying out remediation

(b) not to recover those costs or to recover only part of those costs

Exclusion: any determination by the enforcing authority under section 78F (6) (that is, that a person is to be treated as not being an appropriate person).

Intrusive Investigation: an investigation of land, for example by exploratory excavations, which involves actions going beyond simple visual inspection of the land, limited sampling or assessment of documentary information.

Hardship: a factor underlying any cost recovery decision made by an enforcing authority under section 78P (2).

Harm: 'harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property.'

Principal Aquifer: as defined by the Environment Agency 'These are layers of rock or drift deposits that have high intergranular and or fracture permeability - meaning they usually provide a high level of water storage. They may support water supply and/or river base flow on a strategic scale. In most cases, principal aquifers are aquifers previously designated as major aquifer'.

Remediation: defined in section 78A (7) as:

(a) the doing of anything for the purpose of assessing the condition of:

(i) the contaminated land in question

(ii) any controlled waters affected by that land

(iii) any land adjoining or adjacent to that land

(b) the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land or waters for the purpose:

(i) of preventing or minimising, or remedying or mitigating the effects of any significant harm, or any pollution of controlled waters, by reason of which the contaminated land is such land

(ii) of restoring the land or waters to their former state

(c) the making of subsequent inspections from time to time for the purpose of keeping under review the condition of the land or waters

Remediation action: any individual thing which is being, or is to be, done by way of remediation.

Secondary Aquifer: as defined by the Environment Agency: 'These include a wide range of rock layers of drift deposits with an equally wide range of water permeability and storage. Secondary aquifers are sub divided into two types:

• Secondary A - permeable layers capable of supporting water supplies at a local rather than strategic scale, and in some cases forming an important source of base flow to rivers. These are generally aquifers formerly classed as minor aquifers
• Secondary B - predominantly lower permeability layers which may store and yield limited amounts of groundwater due to localised features such as fissures, thin permeable horizons and weathering. These are generally the water-bearing parts of the former non-aquifers

Source Protection Zones: these relate to groundwater sources such as wells, boreholes and springs which are used for public drinking water. As described by the Environment Agency, 'these zones show the risk of contamination from any activities that might cause pollution in the area' which could be a risk to a drinking water supply. The closer such an activity might be to a source the greater the risk.