Contaminated Land

Over the last 300 years Dundee's rich heritage of industrial development, gave shape to its characteristic urban landscape.  The industrial boom was responsible for some of the city's most remarkable buildings.  Historic focus on economic growth however, regardless of its impact upon people and the environment has also left a legacy of derelict sites and potentially contaminated land.

The Environmental Protection Act 1990 brought into force various provisions to prevent the creation of new contamination from industrial, manufacturing and waste management activities; however it lacked any measures to tackle historic contamination. This was remedied by the Environment Act 1995, which introduced via section 57 a new part entitled Environmental Protection Act 1990: Part IIA Contaminated Land (EPA1990 Part IIA).

Following detailed public consultation, in the summer of 2000 the Scottish Government published the Contaminated Land (Scotland) Regulations and the Statutory Guidance (updated in 2006), which brought into force the provisions of Part IIA of the 1990 Act.  This placed the duty on local authorities, such as Dundee City Council to inspect the land within its area for the purpose of identification and remediation of land where contamination is causing unacceptable risks to human health or the wider environment.

In order to assist the council in making planning decisions and policy consistent with the new contaminated land regime and to lay out Scottish Government policy for the planned redevelopment of Brownfield and potentially contaminated land, PAN 33 Development of Contaminated Land was published in 2000.

In fulfilment of Scottish Government objectives it is the Council's duty to:

• identify and remove unacceptable risks to human health and the environment
• seek to bring damaged land back into beneficial use; and
• seek to ensure that the cost burdens faced by individuals, companies and society as a whole are proportionate, manageable and economically sustainable.

These objectives underlie the "suitable for use" approach adopted by the Scottish Government, which recognises that the risk presented by any given level of contamination will vary greatly according to the use of the land and a wide range of other factors, such as proximity to a watercourse, the underlying geology of the site etc.  Risks therefore need to be assessed on a site-by-site basis.

The "suitable for use" approach comprises the three following elements:

• ensuring that land is suitable for its current use - i.e. identifying any land where contamination is currently causing unacceptable risks to human health and the environment, and taking measures to remove those risks.
• ensuring that land is made suitable for any new use, as planning permission is given for that new use - i.e. identifying potentially contaminated land and requiring risk assessment and, where necessary, remediation to render land suitable for the proposed use, as this is planned, via the town and country planning and building control regimes.
• limiting requirements for remediation to the work necessary to prevent unacceptable risks to human health or the environment in relation to the current use or future use of the land for which planning permission is being sought - i.e. recognising that risks from land contamination must be assessed in the context of either a current or planned future use, to prevent premature or unnecessary work (which could distort social, economic and environmental priorities or waste resources).

In practice Dundee City Council enforces these regulations in two main ways summarised here and detailed below. Land is dealt with either:

1. under current use - completely under EPA1990 PartIIA regulations and the Statutory Guidance or
2. under proposed use - under the EPA1990 Part IIA regulations, Statutory Guidance and Planning Advice Note 33.

The local authority is the lead regulator in the Contaminated Land regime, but is bound to consult with the Scottish Environmental Protection Agency  (SEPA) as necessary, regarding risks to the water environment and in relation to special sites.  Special sites are areas where particularly hazardous land-uses or chemicals of concern have been used, or where a particularly sensitive impact may be occurring.  Where an area of land is identified as contaminated land by the local authority and is also a special site then SEPA will take the lead in regulation.  For radiological contamination SEPA are the lead regulator.

1) Current Land use - Contaminated Land Inspection Strategy

In order to identify land contamination that may be causing unacceptable risks to human health and the environment the regulations require that each local authority prepare an inspection strategy. Dundee City Council's first strategy was prepared in 2001, with the most recent update of the strategy being approved in 2016.

For more information on how the council administers the contaminated land regulations see the link below to view Dundee City Council's Contaminated Land Strategy (2016).

• Contaminated Land Strategy 2016 (1.7MB PDF)

Following publication of the Strategy, Contaminated Land Officers have carried out numerous inspections and investigations throughout the City as part of an ongoing programme of works.  This work is ongoing under funding from the Scottish Government.

The EPA1990 Part IIA and Statutory Guidance require that local authorities create and maintain a Public Register of information relating to land statutorily identified as contaminated land.  There is currently one entry on the Public Register.

2) Proposed Land use - Contaminated Land and the Planning System

Contaminated Land Officers within Dundee City Council scrutinise the weekly list of planning applications to identify applications being made for developments on previously used land (Brownfield sites), which could be affected by contamination.

The Council maintains a database of historical land-use records for the City.  When a planning application is received for a Brownfield site where there is reasonable concern that historic land use could have caused land contamination officers alert the team within the Planning Division dealing with the application. Where new development is proposed on such a site the Council is advised by Scottish Government Planning Advice Note 33 to take measures to ensure the site is demonstrated suitable for the proposed use before allowing that use.  In practise Dundee City Council typically uses one of the following measures:

• An advisory note may be applied to planning consent, requiring that if any contamination is encountered the Council shall be informed and a strategy to deal with contamination implemented.

• A Preliminary Risk Assessment may be required prior to any planning consent, requiring the applicant to demonstrate they have considered potential land contamination risks associated with the proposed development and provide details of appropriate further work necessary to complete a more full risk assessment.

• Planning consent may be given on condition that a scheme to assess and deal with contamination is submitted to and approved by the council.  This type of condition comprises two parts.  The first does not allow development to proceed until the scheme is agreed by the council.  The second does not allow units to be occupied prior to the scheme being satisfactorily implemented and agreed by the council.  The following text is a typical example of such a condition:

1. Development shall not begin until a Preliminary Risk Assessment is completed and, if required  an Intrusive Investigation and a scheme to deal with contamination at the site has been submitted  to and approved in writing by the planning authority.  The scheme shall contain details of proposals  to deal with contamination to include:

   1. assessment of the risks associated with contaminant sources, pathways and receptors specific to the proposed use of the site, and if necessary.

   2. remediation Implementation Plan detailing measures to treat/remove contamination and mitigate risks to ensure the site is fit for the proposed use,

   3. measures to deal with contamination during construction works, and

   4. verification of the condition of the site on completion of decontamination measures.

2. Before any unit is occupied the remediation strategy shall be fully implemented and a verification report with relevant documentation demonstrating that the objectives of the remediation strategy have been achieved shall be submitted to and approved by the planning authority.

Brownfield is land that has been previously used, for either residential, commercial or industrial purposes.  The terms Brownfield land and contaminated land may be confused.  They are not however the same.  Not all Brownfield land is contaminated land, although it is usually the case that some contamination is present on Brownfield land.  In the majority of cases this can be satisfactorily dealt with, either before or during the redevelopment to ensure that significant or unacceptable risks are not presented to the building, property, end users or the wider environment following completion of the development.

While Brownfield land will not necessarily be considered as contaminated land the change of use of such land from industrial or derelict land to either commercial or residential use will usually result in it being put to a more sensitive end use.  For this reason the potential risks associated with re-use of Brownfield land need to be carefully assessed and where necessary managed.  Scottish Government policy is to bring damaged land back into beneficial use and it is the Council's responsibility to ensure that land being put back into use through the development planning system is suitable for that use.  Scottish local authorities have collaborated on a guidance document for stakeholders seeking to redevelop Brownfield land entitled Introduction to Land Contamination and Development Management (837KB PDF).

This document sets out the typical procedures which should be followed by developers to ensure that potential land contamination risks have been assessed and can be appropriately managed within the context of the proposed redevelopment.  This type of risk assessment has become routine in the redevelopment of Brownfield land and is a service offered widely by a variety of Engineering and Environmental consultancies.  The Council are not able to recommend consultants, however usually Engineers or Architects are able to identify specialists who can undertake this type of work.  If your development team is not able to resource these specialities a UK wide directory of consultants is maintained at http://www.endsdirectory.com/.

If you are in doubt about how to deal with Brownfield or contaminated land issues on a specific development site it is advisable to contact the Contaminated Land Officers at an early stage in your development planning. Ensuring land contamination matters are dealt with at an early stage can prevent costly delays and additional work at a later stage of the project.  The planning conditions applied to planning consent for Brownfield developments are to prevent unapproved work from being undertaken.  Development work that proceeds in breach of planning conditions may need to be aborted as a result of enforcement action by the Council.  The Council also maintains a register of sites that are developed in breach of planning conditions and makes this information available to solicitors involved in property purchases.

• Dundee Sustainable Development Guide for Construction
• Planning Applications online - Public Access - Land quality information submitted in support of recent planning applications is now available online.
• Scottish Environmental Protection Agency (SEPA) website - contains a wealth of useful information and links to related websites.