Comply with contaminated land remediation requirements

When your land is identified as contaminated

If you own, occupy, or have previously used a site, you may be contacted by your local authority about contaminated land. Local authorities have a duty under Part IIA of the Environmental Protection Act 1990 to inspect their area and identify contaminated land. Land is contaminated if substances in, on, or under it are causing, or could cause, significant harm to health, controlled waters, or the environment.

Being identified as a potentially liable person does not mean you will automatically receive a remediation notice. Regulators prefer voluntary action and must consult you for at least 3 months before serving a formal notice. However, you need to understand the regime, your potential liability, and the steps you should take to protect your position.

This guide covers what happens under the Part 2A regime. Contamination found during development is usually dealt with through the planning system instead, using planning conditions.

Remediation notices

When a local authority (or the Environment Agency for special sites) determines that land is contaminated, it must identify the appropriate person responsible for remediation. The authority must consult with you before serving a formal remediation notice. Understanding what a notice requires and your rights during the consultation period is essential.

Voluntary remediation

If you are identified as a potentially liable person, acting voluntarily is almost always the better course of action. Under Section 78H(5)(b), the enforcing authority must not serve a remediation notice if you are carrying out, or will carry out, remediation voluntarily.

Advantages of voluntary remediation include:

• More control over the process - you can choose your own consultants and agree the remediation approach with the regulator, rather than having specific requirements imposed through a notice
• No criminal record risk - failure to comply with a remediation notice is a criminal offence; voluntary action avoids this risk entirely
• Cost management - you can phase remediation works and negotiate the scope with the regulator, potentially reducing overall cost
• Reputational protection - remediation notices are placed on a public register; voluntary remediation results in a remediation statement instead, which carries less stigma
• Better working relationship with regulators - demonstrating willingness to act cooperatively can lead to a more proportionate regulatory response

Even if you dispute liability, engaging constructively with the regulator during the consultation period is recommended. Seek specialist legal advice on your liability position while demonstrating willingness to cooperate on the technical aspects.

Costs and penalties

Non-compliance with a remediation notice carries significant criminal penalties. The offence under section 78M is triable only in the magistrates' court (there is no trial on indictment). In England and Wales the fine is unlimited for offences committed on or after 12 March 2015, and daily fines apply for continuing offences. The statutory maxima are higher for land used for industrial, trade, or business purposes. Where prosecution would be an ineffectual remedy, the enforcing authority can instead take High Court proceedings to secure compliance.

Working with regulators

The enforcing authority is your local authority for most sites, or the Environment Agency for "special sites". The special-site categories are set out in Schedule 1 to the Contaminated Land (England) Regulations 2006 and include specified water-pollution cases (such as land affecting drinking water sources or major aquifers), waste acid tar lagoons, petroleum refining, explosives manufacture, sites regulated under Part A(1) environmental permits, nuclear sites, Ministry of Defence land, and radioactively contaminated land.

Practical tips for effective engagement

• Respond promptly to all correspondence. Delays can be interpreted as lack of cooperation and may accelerate formal enforcement
• Attend meetings with the regulator and bring your environmental consultant. Technical discussions are more productive with specialists present
• Share information openly. Withholding site investigation data or historical information undermines trust and can weaken your position
• Agree milestones in writing. Confirm what has been agreed at each stage in a follow-up letter or email to the regulator
• Keep records of everything. Maintain a complete file of correspondence, technical reports, waste transfer notes, and costs incurred. You may need these for cost recovery claims against other liable parties

Cost recovery from other liable parties

If you believe another party caused or knowingly permitted the contamination (a Class A person), you may have grounds to recover remediation costs from them through civil proceedings, even if you have been required to remediate as the current owner (Class B person). Take legal advice on this at an early stage.

Hardship provisions

If the cost of remediation would cause you hardship, the enforcing authority must take this into account when deciding whether to recover its costs. This protection applies particularly to Class B owner-occupiers. You will need to provide financial evidence to support a hardship claim.