Emma Fenton
January 2013

A local authority perspective on the efficacy of Part 2A legislation

As part of the IES' ongoing exploration of the use of Part 2A of the Environmental Protection Act we asked Robin Graham, Contaminated Land Officer from South Ribble Borough Council to share his opinions of the legislation. This article is a summary of that discussion.

Robin Graham: South Ribble Borough Council, Lancashire (RG)
Emma Fenton: Institution of Environmental Sciences (EF)

EF: In your opinion, why does Part 2A appear not to be uniformly implemented across England, Wales and Scotland?

RG: I have considered why there is a disparity across the UK between different authorities determining contaminated land under Part 2A. The reasons may include:

  • Some authorities had officers with sufficient expertise and support to pursue Part 2A work from the time the legislation was implemented in 2001;
  • Conversely, some local authorities may have struggled to allocate work to a specific officer or have had difficulty in creating a specialist post to conduct contaminated land work;
  • It could be argued that some authorities had a greater legacy of contaminated land that local politicians were keen to address. This political will led to more resources put into Part 2A work;
  • The negative publicity of a high-profile or costly site determined and remediated through Part 2A legislation may have deterred some authorities from pursuing similar sites; and
  • It is plausible that more determinations could have been reached through Part 2A had budgets been maintained following the economic downturn.

EF: In your experience, does Part 2A encourage local authorities to determine and remediate contaminated land or do local authorities prefer to remediate through other legislation?

RG: I came to South Ribble Borough Council in 2007 after working for a private consultancy for a number of years. It took a little adjustment to move from a primarily reactionary way of working to one that tied health protection into strategic long-term project work. Early in my role as Contaminated Land Officer there was a budget specifically for contaminated land project work, but not necessarily the political will to conduct Part 2A investigations beyond the desk study stage. Instead, I, like many fellow officers, was kept busy with planning work as the housing market was buoyant. Part 2A work was not prioritised as a result.

I recall in the case of one Lancashire authority, which had begun a Part 2A determination, there was repeated frustration at the lack of political will to see the work through to completion. The officer responsible, who has since retired, was aware of the statutory obligations of the Part 2A investigation, but intimated the lack of management support in taking the work forward. When he spoke at the regional Contaminated Land Officer group meeting, there was a sense that it was a difficult and laborious way to deal with contaminated land, compared with the planning process. I personally felt discouraged to use the Part 2A regime to investigate and remediate contaminated land.

Come the economic downturn of 2008 and planning work tailed off significantly. Unfortunately, financial cuts were inevitable and the contaminated land budget was drastically reduced at several authorities. At South Ribble Borough Council, the contaminated land budget was reduced and amalgamated with other environmental protection duties such as air quality. Despite having more time to devote to Part 2A projects, the ability to carry out further investigatory work beyond the desk study stage had been taken away. The additional time did, however, allow me to consolidate the findings from investigations submitted through the planning system with the Part 2A prioritisation list. From this I could see that some of the higher priority sites had been successfully addressed and needed little or no further consideration under Part 2A legislation.

I am aware of other Lancashire authorities that had started on Part 2A project work had to suspend further work due to the economic downturn and subsequent cuts. This was a reflection of both staff reduction and reprioritisation of workloads and there are authorities in Lancashire that have lost their specialist officers due to retirement or staff cuts. Others have been redeployed to other duties due to restructuring. For some authorities the result is a drop off of Part 2A project work, with contaminated land almost entirely addressed through the planning system.

EF: Could Part 2A be better for local authorities, and if so how?

RG: There was a general feeling among Lancashire officers that the revised Statutory Guidance (SG) issued in April 2012 would remove some uncertainties as to when Part 2A legislation should be used. The SG advised that enforcing authorities should seek to use Part 2A legislation only where no appropriate alternatives exist (such as environmental permitting regulations, the planning regime and voluntary remediation among others). This has given some authorities a reason to withdraw support for Part 2A work.

The SG has led to the creation of an expert panel on contaminated land set up by Defra, which has been welcomed by myself and other officers. Highlighting natural background concentrations of certain contaminants has also been welcomed. However, the SG has introduced the new concept of placing sites into one of four categories with the creation of screening levels for each category. I broadly support this approach, but I appreciate that this could muddy the waters between the Part 2A and planning regimes. There is a fear among some colleagues that the misinterpretation of Category 4 Screening Levels will be used by developers to ignore higher levels of contamination, abrogating their responsibility to ensure a development is suitable for its intended end use.

I am not sure if further guidance will support authorities in implementing the Part 2A regime as the amount of guidance so far available can seem overwhelming, particularly to officers new to the regime. Instead, I will continue to use the planning regime to address contaminated land legacy.

The views expressed in this article are those of the participants and do not necessarily reflect IES views or policy.

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