Contaminated Land
Bexley Council provides advice and investigates complaints about contaminated land.
There is a difference between 'Contaminated Land' and 'Waste on Land'.
In simple terms the difference between the two depends on how difficult it is to remove.
If after the dumped items have been removed, the land were regarded as 'clean' the area would not be regarded as 'contaminated'.
If the dumped items have soaked into the ground (e.g. oil and liquid chemicals from leaking containers) and/or potentially hazardous items cannot be removed effectively (e.g. asbestos sheeting that is broken into small pieces), the land would be 'contaminated'. In this case the work/action required to make the land safe or remove the contamination is likely to be more complicated.
The term 'Contaminated Land' is more commonly used to describe old industrial sites that have become contaminated as a direct result of the historic activity on the site (e.g. old buried tanks containing industrial waste, leaking underground petrol tanks on garage sites, etc). The term also includes landfill sites (e.g. old quarries filled with domestic refuse or industrial waste).
Frequently asked Questions
What causes contamination in the ground and why should we clean it up?
Contamination (pollution) of land can arise from past industrial processes, waste disposal, illegal dumping, accidental spillage of substances and in some instances may be natural rather than man-made. In the past there were far fewer operating restrictions for industries than we have today. Many industrial activities were carried out with little regard for their impact on the environment. The type of contaminant can vary widely from site to site. Some of the more common problems include oils and fuels, domestic and industrial waste, heavy metals and solvents.
Different contaminants can cause problems in a variety of ways. For example, they can:
- travel through or move across the ground and pollute water resources such as underground water, lakes and rivers
- Be inhaled as dust particles
- Be absorbed into, or irritate the skin
- Be taken up by plants that are grown in the ground to be eaten by humans or animals
- Break down to create potentially dangerous gases including methane (explosive), carbon dioxide etc.
- Have a detrimental affect on building materials
It is therefore important to identify areas where contaminants are likely to be present and to deal with them so that the site is made suitable for its use, and to negate any affects to neighbouring land.
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What work are we doing under the new legislation, Part IIA of the Environmental Protection Act 1990?
The new legislation requires the Council to actively identify contaminated sites that are not suitable for their current use. Bexley Council carries out these statutory duties. If necessary, Bexley Council has enforcement powers to get the sites cleaned up. This runs alongside our Planning and Building Control consultation duties, which we continue to undertake.
To carry out the historic contaminated land identification work we are reviewing historic maps and other records on land use. This review work is enabling us to identify former industrial areas and other potentially contaminative uses. We are also examining our detailed information gathered over the last 20-30 years on the Borough's current and former contaminated land sites including landfills. We are aiming to create a database of known and potentially contaminated sites that can be used by Council officers in contaminated land work.
Computerised mapping technology is being used to overlay historical industries and landfill sites upon the modern maps that show sensitive areas such as gardens or parks. This enables us to find out where potentially contaminated sites are located and allows us to see where the highest risk areas (priority sites) might be in the Borough. The highest priority sites are those involving allotments, residential areas and schools. Water pollution is also an important issue in these new duties for the Environment Agency and the Council.
The work is in progress and some sites are already considered priority sites within the Part IIA inspection work. The Council's Contaminated Land Strategy, has more information about how Bexley will be carrying out the Part IIA work. Copies of this document are available from the Environmental Protection Team.
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What is the legal definition of 'Contaminated Land'?
The Environmental Protection Act 1990 introduced a legal definition of 'Contaminated Land' for the first time. Section 78A of the Act states that: 'Contaminated Land' is: 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; or
- b. pollution of controlled waters is being, or is likely to be, caused.
 Click here to view Part IIA of the Environmental Protection Act (1990) in full.
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Will all polluted sites be legally determined by the Council to be 'Contaminated Land'?
Not necessarily. For the Council to legally determine a site as 'Contaminated Land' all of the following must apply:
- There must be one or more contaminating substances present (called the source);
- There must be one or more specified receptors present (these can be people, animals, plants, rivers, underground water resources or buildings);
- There must be at least one plausible pathway between the contaminant and the receptor (forming a Pollutant Linkage); and
- There must be a significant possibility that the Pollutant Linkage could lead to significant harm to one or more receptors.
This Source-Pathway-Receptor approach is designed to account for cases where a contaminant may exist on a site but there are no receptors present that it can affect; or that there is no feasible way that the contaminant can come into contact with a receptor; or that the amount of contamination that could come into contact with a receptor is not enough to pose any significant risk. Such sites would not be determined by the Council as 'Contaminated Land'. Bexley Council uses this risk-based approach throughout its Contaminated Land work.
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Is brownfield land 'Contaminated Land'?
Not necessarily. Brownfield is a term often used to describe previously developed land. Most land that has been previously developed for industrial purposes will have some contamination on it, but not all will meet the definition of contaminated land under Part IIA (see above answer).
It is worth bearing the following in mind when it comes to the different definitions of land:
- Not all brownfield sites are contaminated
- There are often minor contamination issues at brownfield sites
- Not all contaminated sites are located on brownfield land. Land may become contaminated as a result of a neighbouring contaminative use or pollution incidents, or may even appear to be greenfield, such as with restored landfill sites
- Some brownfield land may become 'Contaminated Land' if it has not been remediated (cleaned up) adequately
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What are the Environment Agency's responsibilities under Part IIA?
For some sites known as 'special sites', which includes sites affecting rivers, aquifers and water supplies, have radioactive substances on site or are former Ministry of Defence land, Bexley Council will carry out the initial work to identify the site as 'Contaminated Land' and consult with the Environment Agency about designating the site as a 'special site'. The remediation (clean up) of 'special sites' will be enforced by the Environment Agency as set out in the Part IIA Guidance Document.
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How could 'Contaminated Land' investigations affect me?
You may be affected by investigations if you own land, occupy land, are a tenant of land or operate a process on land that the Council has reasons to believe may be contaminated.
The Council will have already carried out some preliminary investigation work to determine the likelihood of contamination at the site and will inform all those who may be potentially affected by inspections, intrusive investigations and possible remedial works well in advance of them taking place.
Intrusive investigation
Involves sampling soil and water, perhaps testing for gas, at and perhaps around the site, to determine the level of contamination. Techniques such as trial pitting and borehole drilling may be used for the sampling. The nature of the contamination and current characterisitics of the site will often influence the techniques used.
Remedial works (Clean Up)
Are designed and carried out on the basis of the information found during the intrusive investigation and will occur where the contamination found is thought to pose an unacceptable risk to human health and the environment.
You will be kept informed of the overall findings and decisions in relation to the site.
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Who pays for the clean up of 'Contaminated Land'?
The Council will pay the cost of investigation into the contaminated status of the land under Part IIA. In the case where remedial works (clean up) are needed to prevent harm due to unacceptable risks, other parties may have to meet the costs.
For more information on how the Council will identify if the site is 'Contaminated Land' and who will be responsible for meeting the costs you will need to make a request for more advice which will be passed to the Environmental Protection Team who deal with contaminated land.
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I think my site may be contaminated, what can I do?
You should contact this Authority's Environmental Protection Team, who will consider if the land is causing an immediate risk to receptors and if the problem can be dealt with under another regime other than Part IIA.
In the case of a brownfield site (previously developed land), if you are the landowner you may wish to get specialist advice on the investigation and clean up of the land from private consultants.
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I have a Contaminated Land condition on my planning approval, what should I do?
If you have made a planning application relating to a development that is on or close to a former landfill site or other industrial area, you may have a Contaminated Land condition attached to your planning permission. A condition is attached in circumstances where we feel that special precautions and contamination remediation works are likely to be required to ensure the development can be implemented with adequate regard for environmental and public safety. To comply with the condition you must ensure that the development is suitable for its new use. The condition will require you to carry out investigations of the known or potential contamination and forward adequate information to the Council. On the basis of the level of contamination found in the investigations a remedial strategy will need to be submitted and implemented to the satisfaction of the Council. The type of remediation required will depend on many factors including the site location, the nature and size of the intended development, and the nature of the former potentially contaminative use.
Generally, it is best to contact the Council's Planning Team to discuss the
specific details of your proposed development prior to submitting a planning
application. See the  Developers
Guide to Planning Applications and Land Contamination - Helping You to Get it
Right (418KB, PDF File)
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How can I find out if my home or the home I am buying is on 'Contaminated Land'?
Your solicitor can conduct an environmental search on your behalf consulting various agencies including this Council about information on the land in question.
You could use one of the private commercially available search companies to carry out the work for you. Their websites often allow for a basic search to be carried out for free on-line, but charge for a more detailed report, including further enquiries to Local Authorities.
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What do I need from a developer if I am buying a new house on a development, which has had Contaminated Land conditions attached as part of its planning approval?
- A 'remediation certificate' produced by the consultant or expert on behalf of the developer stating how the site has been remediated to a 'suitable for use' standard. Where this is not available, copies of the remediation reports from the developer.
- You should also contact the Planning and/or Environmental Protection Team for confirmation that the contaminated land conditions have been fully complied with and therefore discharged, and that there are no outstanding issues.
- The NHBC or other Building Control Inspector may also be able to provide information about the development.
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Who is responsible if things go wrong due to contamination?
Under the Planning regime, it is the responsibility of the developer to ensure that a development is safe and 'suitable for use' for the purpose for which it is intended. The Council does not accept liability.
Should a developer have been negligent in their responsibilities, and the contaminated land planning condition has yet to be discharged remedial works can be enforced under the Planning regime. Where the contaminated land condition has been discharged, the site can be reviewed in view of Part IIA, where developers are not willing to carry out the necessary works voluntarily.
If you as the property owner wish to bring about private actions, this should be done separately from any action brought by the Council.
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