Contaminatedland

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Dealing with Contaminated Land in the UK through ‘Development

Managerialism’
Article in Journal of Environmental Policy and Planning · December 2006

DOI: 10.1080/15239080601133831
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Journal of Environmental Policy & Planning
Vol. 8, No. 4, December 2006, 331 – 356
Dealing with Contaminated Land in the UK through

‘Development Managerialism’
PHILIP CATNEY, JOHN HENNEBERRY, JAMES MEADOWCROFT &

J. RICHARD EISER†

Department of Town and Regional Planning, University of Sheffield, Sheffield, UK

School of Public Policy and Administration, Carleton University, Ottawa, Canada
†Department of Psychology, University of Sheffield, Sheffield, UK
ABSTRACT The paper examines the historical evolution of the UK approach to contami-
nated land. It is argued that the rationale and character of the current policy regime are
structured by the dominant discourse dealing with the problem. Successive British govern-
ments have pursued a ‘development managerialist’ approach to contaminated land, rather
than treating it primarily as an issue of environmental quality or public health. Cost effec-
tiveness has been a recurrent theme in the discourse. It has been made manifest through five
key features of the emergent system: (i) the way that contaminated land is defined; (ii) the
distinctive liability regime; (iii) the notion of ‘suitable for use’; (iv) its ‘risk-assessment-
based’ aspects; and (v) its decentralized, bifurcated structure. A preliminary analysis of
the regime suggests that, so far, it has succeeded in containing costs but may leave a
toxic debt for future generations to address. In addition, a hitherto un-noted aspect of
the contaminated land policy regime is identified; that is, that the differing natures of its
two elements—the planning system and Part IIA of the Environmental Protection Act
1990 (‘Part IIA’)—have produced operational tensions that affect policy implementation.
KEY WORDS: Contaminated land, policy regime, policy implementation, planning,

development
Introduction
In the United Kingdom,1 policy-makers’ concern with re-developing brownfield
sites has gradually pushed the issue of contaminated land up the political agenda.
Over the past decade new institutional arrangements have been created to deal
with such sites. The paper examines the historical evolution and current implemen-
tation of the UK approach to contaminated land through a consideration of the domi-
nant discourse around the problem and the way that this is articulated through
institutional structures and policy (Fox & Miller, 1996). It presents an analysis of
the system and offers a preliminary assessment of its strengths and weaknesses.
Correspondence Address: John Henneberry, Department of Town and Regional Planning,

University of Sheffield, Sheffield S10 2TN, UK. Fax: þ44 (0)114 272 2199; Tel: þ44 (0)114
222 6911; Email: j.henneberry@shef.ac.uk
1523-908X Print=1522-7200 Online/06=040331-26 # 2006 Taylor & Francis

DOI: 10.1080=15239080601133831
332 P. Catney et al.
In contrast to air and water pollution, contaminated land did not prove to be a
particularly controversial issue in the UK when it was first identified as a potential
environmental and economic problem in the late 1970s. On the environmental
front, other issues appeared to present a more direct threat to human health
and to the functioning of ecological systems. And as long as greenfield land
remained available for development, it was not imperative to deal with contami-
nated sites. The process of returning severely polluted sites to productive use is
not simply a technical problem. It brings within its scope legal and political
issues, such as the assignment of the responsibility for cleaning up contamination
to appropriate bodies and the definition of the standards that they are required to
meet. These duties could fall variously upon central government, local authorities,
the original polluters, developers or insurance companies (Walker, 2002, p. 10).
The ways in which they are distributed and managed reflect the rationale and
character of the UK’s approach to dealing with contaminated land. This is the
focus of the paper.
Essentially, it is argued that the policy regime and institutional mechanisms
that have emerged in the UK to deal with the problem of contaminated land are
structured around the dominant discourse of ‘development managerialism’. Suc-
cessive British governments have viewed contaminated land in this way, rather
than approaching it primarily as an issue of environmental quality or public
health. ‘Development managerialism’ reflects a politico-administrative perspec-
tive which: (i) while recognizing that contamination poses health and environ-
mental problems, frames the issue primarily in economic terms, as an obstacle
to economic progress and urban (re)development; and (ii) structures the palliative
response primarily through the existing administrative apparatus of planning.
The emphasis within the discourse is on minimizing urban blight, protecting
economic interests and harnessing market-led development processes to bring
contaminated land back into productive use. Cost effectiveness has been a recur-
rent theme in how the UK government has sought to deal with the problem. While
in some other countries the issue has been treated primarily as an environmental
and a health matter—contaminated land must be dealt with comprehensively in
order to protect the public and to return the environment to a benign state—the
UK’s approach has been more pragmatic.
Before pursuing the argument, it is necessary to clarify what a discourse is
and how it is used in this paper. A discourse is a shared way of understanding
the world, which is embedded in language and provides a means for individuals
and groups to interpret social complexity to produce coherent stories or accounts
(Dryzek, 2005, p. 8). Discourses are constructed from assumptions and judge-
ments and are used to filter the range of peoples’ experiences of the world.
Discourse analysis
. . . starts from the assumption that all actions, objects and practices are
socially meaningful and that these meanings are shaped by the social
and political struggles in specific historical periods. . .. At the level of
everyday interaction, discourses represent specific systems of power
and the social practices that produce and reproduce them (Fischer,
2003, p. 73).
One set of more powerful actors/institutions may have the ability to force less
powerful others to subscribe to their particular discourse (Dryzek, 2005, p. 9). Dis-
courses are distributed across institutions and a key task for analysing them is to
Contaminated Land in the UK: ‘Development Managerialism’ 333
account for the “viewpoints and positions from which actors speak and the insti-
tutions and processes that distribute and preserve what they say” (Fischer, 2003,
p. 76). The utility of the discourse approach for policy research is that it can
unearth the submerged meanings of policy regimes that tend to be taken for
granted by those, particularly policy implementers, who work with them on a
regular basis.
This paper examines the general policy regime that surrounds contaminated
land and characterizes it as the embodiment of ‘development managerialism’. This
is not to imply that it is the only discourse operating within debates on contami-
nated land (see Gray (2000) and Walker (2002) for an extensive analysis). Rather,
the concern is to examine the institutional context and practices in which the domi-
nant discourse on contaminated land—‘development managerialism’—is stated
and understood (Fischer, 2003, p. 90). It is suggested that ‘development manageri-
alism’ is a discourse produced from long-standing development approaches in the
UK, reinforced by the particular contestation of the contaminated land issue in the
early 1990s. The discourse operates at the level of policy-institutional design and
frames the way that individuals and organizations operate.
There are five key (policy-institutional) features of the emergent UK policy
regime that are reflective of ‘development mangerialism’. The first element is
the way that contaminated land has been defined. The second feature is the dis-
tinctive liability regime. The third and fourth points are the ‘suitable for use’
and the ‘risk-assessment-based’ aspects of the approach to remediating contami-
nated land. The final characteristic is the decentralized, bifurcated structure of the
policy regime. These features will be explored in greater detail later. First,
however, the article explores the historical genesis of the current approach.
The Evolution of UK Policy for Contaminated Land

Walker (2002, pp. 85 – 86) put forward several reasons for the rising importance of
contaminated land on the UK environmental agenda. One of these is the increased
efforts that environmental groups have made to draw attention to the problem
(see, for example, Friends of the Earth, 2000). However, it is notable that the
remaining factors support the development agenda. In order to achieve the gov-
ernment’s aim of developing a larger proportion of housing in existing urban
areas, greater attention needed to be given to the contamination problem. The
de-industrialization of the 1980s revealed just how much land in the UK was
subject to some form of industrial contamination. Following the identification of
the need to accommodate 4.4 million extra households in England between
1991 and 2016, the issue of remediating that contaminated land became unavoid-
able. As part of its drive to regenerate the inner cities and to protect the country-
side, the government initially set a target that 60 per cent of new homes should be
built on brownfield land by 2008. The Barker Review (2004), established by the
Treasury to examine the constraints upon the long-term supply of housing in
the UK, supported this orientation. The report argued that the government
needs to encourage the redevelopment of brownfield and contaminated land in
order to increase housing supply and to reduce house price inflation. Thus, if
the government’s longer-term economic and social goals are to be achieved, the
issue of contaminated land must be addressed.
It was only after the passing of the Environmental Protection Act 1990 (EPA)
that contaminated land really rose up the UK political agenda. Before this, the
British government did not pay a great deal of attention to the problem. This was
despite warnings from House of Lords reports on toxic waste (House of Lords
Select Committee on Science and Technology, 1980, 1985) and from an influential
report from the Royal Commission on Environmental Pollution (1985) that called
for the creation of contaminated land registers. It was also in the face of widely
reported incidents abroad.2
For most of the post-war period the issue was considered a technical matter—
one that could be handled by scientists and engineers on a case-by-case basis,
without the need for elaborate policy guidance. Instead of developing formal
policy, the UK government relied upon ‘tried and true’ methods in the environ-
mental realm. These were based largely upon incremental problem-solving,
private negotiation with concerned parties (particularly industry and local auth-
orities) and discrete consultation with technical experts. Local government and
water managers, such as the National Rivers Authority, were free to use existing
public health and planning laws to identify severely polluted land and to deter-
mine liability for damage and remediation. The statutory framework for pollution
control allowed local actors considerable scope for discretion. Thus, the early dis-
course emphasized pragmatic and flexible action. It reflected the significant infor-
mation asymmetries present in land issues and was expected to keep remediation
costs within reasonable limits (Walker, 2002).
The catalyst for greater central government intervention came initially from
local authorities who wanted clearer guidance from the then Department of the
Environment over the redevelopment of heavily polluted sites. This prompted
the UK government’s first explicit response to the problem of contaminated
land: the creation of the Inter-departmental Committee on the Redevelopment
of Contaminated Land (ICRCL) in 1976. The Committee provided technical
advice to local authorities on a case-by-case basis and produced some ‘trigger
values’ (levels of contaminated materials on a site that suggested the need for
action). Thus, as Walker (2002, p. 99) noted, “the UK response initially defined
contaminated land as a material consideration3 in the process of development”
control decision making. The issue found a place on the UK policy agenda not
because it was viewed as a critical environmental or health concern, but
because it was considered a block on the redevelopment of brownfield land. It
was, therefore, primarily a planning issue. This association of contaminated
land with planning and development “was to be a lasting one” (Walker, 2002,
p. 99).
During the 1980s the British government made little attempt to extend its role
further. It considered that the matter could be addressed effectively through the
redevelopment of contaminated sites. Yet, as the decade advanced, the closure
of many polluting industries made it increasingly difficult to ignore the scale of
the problem. In 1989 two House of Commons Environment Committee
reports—on contaminated land and on toxic waste—forced the government to
concede the need for better tracking of potentially polluted sites (Walker, 2002,
p. 86). As part of the major overhaul of environmental law introduced in the
Environmental Protection Act 1990 (hereafter ‘EPA’), the then Conservative gov-
ernment set out draft regulations for land registers (Section 143), in which up to
100 000 sites would be listed as potentially dangerous because of past and
present ‘contaminative uses’. It is notable that the focus of this inventory was
on the historic usage of the sites, rather than on the actual level of contamination
(Harris & Denner, 1997, p. 29). It was thought that this approach would place
“minimal demands” on local authority resources and provide a means of alerting

interested parties to the possible existence of contamination without “extending
planning blight in those areas of the country with a legacy of industrial land
use” (Tromans & Turrall-Clarke, 2000, p. 3). This echoes the themes of cost-
effectiveness, pragmatism and efficiency which are key elements of ‘development
managerialism’.
The original intention was that after a suitable range of consultations Section
143 would be implemented in late 1991 and that the registers would be opened
for public inspection in 1993. However, in March 1992 the government announced
that Ministers would delay the implementation of Section 143 because of represen-
tations made during the first round of consultation (Harris & Denner, 1997, p. 29).
The register met with fierce resistance from lobby groups that represented property
interests. They feared that significant market blight would occur if contaminated
sites were identified on a public register. In July 1992 the then Department of the
Environment (DoE) announced that it would reduce the range of contaminative
uses that would bring a site within the scope of the registers.
The consultation exercise enabled the government to identify three potent
criticisms of the proposed public registers (Tromans & Turrall-Clarke, 2000,
p. 3). First, because they were to be based on current or former uses of land
rather than actual contamination, they would inevitably include a number of
sites that were not actually contaminated, whilst excluding others that were. Sec-
ondly, the logical consequence of a register based on historical facts relating to
land use would have been the inability to have an entry removed from the register
following completion of clean up. Finally, the system would have left it unclear
what action should be taken and by whom: that is, whether the land should be
cleaned up and, if so, who should pay and how much.
The reduced list of contaminative uses failed to satisfy objectors to the scheme
and, in March 1993, the government announced that it was abandoning the pro-
posed register and would repeal Section 143 of the 1990 EPA. It also promised a
wide-ranging review of the legal powers for public bodies to control and tackle
contaminated land (Tromans & Turrall-Clarke, 2000, p. 4). This reappraisal led
to the publication in March 1994 of the consultation paper Paying for our Past:
the Arrangements for Controlling Contaminated Land and Meeting the Cost of Remediat-
ing Damage to the Environment (DoE, 1994a). Smith (1999, p. 380) has argued that
Paying for Our Past “explicitly took a ‘market centred’ approach to a comprehen-
sive review of contaminated land policy”. The document signalled the final
demise of the register and the affirmation of the idea that contamination should
generally be managed within the normal development cycle. Paying for our Past
fed directly into the subsequent Framework for Contaminated Land (DoE, 1994b).
This, in turn, formed the basis for Section 57 of the Environment Act 1995
which inserted a new Part IIA into the EPA 19904 (Walker, 2002, p. 87; hereafter
‘Part IIA’). The Environment Act 1995 confirmed that while Section 143 would
not be implemented, registers would still be kept by local authorities. But these
were to be registers of remediation action undertaken under Part IIA, rather
than registers of contaminated sites. Even so, this provision was not put in
place until April 2000 when the Labour government finally issued to local auth-
orities the formal guidance for implementing Part IIA.
The new Part IIA sought to give greater legal clarity and to regulate more sys-
tematically the activities of local actors who guided the redevelopment and reme-
diation of contaminated sites. Preparation of the detailed policy guidance was
drawn out because of opposition from interest groups, notably the property
industry, which still maintained that the measure would blight the property
market. Moreover, the government was particularly eager to ensure that the
resultant system would contain costs. This was made clear in Circular 02/2000
Contaminated Land (DETR, 2000), which by then was couched in the language of
sustainable development. The basic objectives of the regime were:
. to identify and remove unacceptable risks to human health and the environ-
ment;
. to seek to bring damaged land back into beneficial use; and
. to seek to ensure that the cost burdens faced by individuals, companies and
society as a whole are proportionate, manageable and economically sustainable.
The policy regime that has actually emerged in the UK clearly reflects some
balance of these three elements. However, it is argued that the pursuit of ‘develop-
ment managerialism’ has resulted in the weight given to these objectives being
pretty much the reverse of their lexical ordering. The description and analysis
of the policy regime that is presented below demonstrates this.
The Details of the UK Contaminated Land Policy Regime

There are now two principal legislative controls that exist to regulate the redeve-
lopment and remediation of contaminated sites in the UK: the Town and Country
Planning Act 1990 and Part IIA of the EPA 1990 (Environment Agency, 2002, sec.
2.3). In line with ‘development managerialism’, primacy is given to planning.
Remediation is to be achieved generally through the planning system as part of
its role in the regulation of development undertaken predominantly by the
private sector. However, it is important to note here that the government has
given its main regeneration body, English Partnerships, a lead role in identifying
and supporting development activities that will bring brownfield sites more gen-
erally back into productive use (cf. English Partnership’s national brownfield
strategy (English Partnerships, 2003)). In addition, the government has made
the redevelopment of brownfield sites a key measurement of the success of the
Regional Development Agencies (RDAs) that were created in the late 1990s for
the English regions and the Greater London area (mirroring the Welsh Develop-
ment Agency, which had considerable success reclaiming brownfield land).
Within this context, contamination is addressed specifically by Part IIA.
However, in contrast to policy guidance (see below), the literature deals with
the roles of planning and of Part IIA in remediation quite separately rather than
as two related elements of a policy regime (see, for example, the treatment of
the two in standard planning texts such as Cullingworth & Nadin (2002) or
Rydin (2003)). Consequently, an important feature of the UK contaminated land
system has not, hitherto, been considered.
The provisions of Part IIA will be described before its relationship with plan-
ning is considered. The treatment is based on two main empirical sources. First, an
analysis of a set of key policy documents relating to contaminated land, includ-
ing—at the national level—consultation papers, statutes, statutory guidance and
subject reports; and—at the local level—development plans and supplementary
planning guidance. Secondly, interviews with 48 policy makers and policy imple-
menters who deal with the treatment and re-use of contaminated land within
national, regional and local government departments and agencies (including,
inter alia, officers in ODPM/DCLG, the Environment Agency, regional develop-

ment agencies and local government planning and environmental health depart-
ments; as well as local councillors, property developers and local residents).
Part IIA of the Environmental Protection Act 1990

Part IIA of the Environmental Protection Act 1990 (Part IIA) establishes the legis-
lative framework for the identification and remediation of contaminated land,
introducing for the first time a statutory definition of ‘contaminated land’. Its
main purpose is to address land that has been contaminated by past practices
and that poses ‘unacceptable’ risks to human health or to the wider environment
in the context of the current use of the land. Under Part IIA, local authorities are
charged with developing and implementing strategies for identifying contami-
nated land in their areas.
Local authorities utilize a variety of methods to identify contaminated sites,
including desk-based reviews of historic maps and other records on land use to
identify potentially contaminating land uses, such as a tanneries. This is often
done through the use of computerized mapping technology, which can overlay
areas of known (contaminating) historical industries upon modern maps to high-
light sensitive areas, such as private gardens, for urgent analysis. Following this,
on-site investigation, including the taking of soil and groundwater samples, will
establish the nature and extent of contamination and whether it exceeds specified
thresholds (see below). Investigations can also be triggered by planning appli-
cations, where planning departments may require the environmental assessment
of a site before permission is given for any proposed development. Furthermore,
investigations may arise from complaints by members of the public (for example if
a gassing landfill was ventilating into residential properties). Once an authority
has identified a piece of land as contaminated (as defined by the Statutory
Guidance), the enforcing authority will hold discussions with persons likely to
be responsible for addressing the contamination, to agree on what remediation
action is required.
It is important to stress that Part IIA does not cover all land on which contami-
nants are physically present, but only land that is causing, or has the potential to
cause significant harm, or pollution of controlled waters.5 In the UK there are no
statutorily defined standards for concentrations of contaminants in soil that
trigger immediate remediation. Instead, the approach is risk-based and site-
specific, where ‘harm’ and ‘pollution of controlled waters’ are considered on
the basis of the characteristics of the site in question.
The five basic characteristics of the Part IIA provisions are considered now.
These relate to:
. the definition of contaminated land;
. the allocation of liability;
. the ‘suitable for use’ doctrine;
. ‘risk-based’ remediation; and
. the decentralized nature of the system.
Defining ‘contaminated land’. A distinctive characteristic of the UK approach is

the very specific way in which ‘contaminated land’ is defined. As Walton (1997,
p. 232) noted, the quantification “of the true extent of contaminated land in the
United Kingdom will inevitably depend upon the way in which such land is
defined”. The UK government formally defines contaminated land in Section
78A(2) of Annex A to Part IIA 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; or
(b) pollution of controlled waters is being, or is likely to be, caused.
Cairney & Hobson (1998, p. 3) noted that the
stress on the word ‘significant’ will remove a large proportion of former
industrial sites from the contaminated category and will focus attention
on those few sites (probably less than 10% of the total) of real concern.
This arguably is a more realistic approach than the attitudes developed
in the Netherlands.
The emphasis in the UK is on the identification and remediation of land that is
thought to pose unacceptable risks to human health or the environment. As
Petts et al. (1997, p. 3) argued “in the UK, the definition of contaminated land
has been a controversial issue, as much to do with political, financial and social
interests as with concerns over the potential risks . . . of contamination”. Thus,
there is a distinction between a physical and an administrative/legal conception
of ‘contaminated land’. Contaminants may be physically present at a site, but
the land is only ‘contaminated land’ in a legal sense if these substances can be
demonstrated to be causing (or risk causing) ‘significant harm’.
The Part IIA regime provides the UK for the first time with a statutory defi-
nition of ‘contaminated land’ and with explicit guidance about how the associated
risks should be addressed. The new regime emphasizes the importance of risk
assessment in the identification and remediation of contaminated sites. Indeed,
as the guidance (DETR, 2000) states, the “definition of contaminated land is
based upon the principles of risk assessment”. This definition relies on “The
relationship between a contaminant, a pathway and a receptor. . .unless all three
elements of a pollutant linkage are identified in respect of a piece of land, that
land should not be identified as contaminated land” (DETR, 2000, p. 76).
Part IIA stipulates that harm to health and the environment arises not from
the mere presence of contaminating substances but from ‘Significant Pollutant
Linkages’ (SPLs). It is only where a SPL can be identified and where land meets
this statutory definition that a local authority can formally determine the site to
be ‘contaminated land’ (Syms, 2002, p. 107).
Allocation of liability. The second key characteristic of the UK approach is how

liability for remediation is apportioned. This is perhaps the most contentious of
all remediation issues (de Sousa, 2001, p. 139). In the UK, liability is assigned in
the first instance to the original polluter: an application of the ‘polluter pays prin-
ciple’ (PPP). Virtually all European Union member states formally endorse PPP in
their contaminated land or soil protection regimes. But, in the UK, if the poten-
tially responsible party (PRP) or the original polluter cannot be found, then
responsibility falls next on the current landowner. This follows the traditional
principle of English property law caveat emptor (‘let the buyer beware’), as liability
passes with the title of the property to a new owner. The legislation and the Stat-
utory Guidance refer to these people as ‘appropriate persons’ and sets out how
liability should be apportioned between such persons.
The appropriate person may wish to remediate land voluntarily, in which
case a remediation statement is agreed, or they may not, in which case they can
be served with a remediation notice that compels them to remediate in accordance
with the detail of the notice (Environment Agency, 2002, pp. 9– 10). There are some
sites where an ‘appropriate person’ cannot be identified or found. Remediation of
these ‘orphan sites’ becomes the responsibility of the local authority. Local auth-
orities can apply for Supported Capital Expenditure (SCE) under the Contami-
nated Land Capital Projects Programme (CLCPP) for funds to finance such
work. The scheme is managed by the Environment Agency on behalf of the
Department of the Environment, Food and Rural Affairs (DEFRA). The funding
comes from that department (DEFRA, 2005), subject to the approval of the local
authority’s scheme of treatment by the Environment Agency. There are,
however, limitations upon how much public money may be spent on these
sites. The CLCPP only covers the capital costs of remediation, not the revenue
costs.6 In addition, as the Environment Agency (2002, p. 10) states: “Where
nothing ‘reasonable’ can be specified by way of remediation, having regard for
the cost of remediation and the seriousness of the harm or pollution, the enforcing
authority cannot serve a notice”.
This restricts the cost to the taxpayer in terms of the remediation of intractable
sites. However, ignoring a site that does not pose immediate harm does not fully
address the issue of environmental safety. For example, using the SPL model, a
site that poses hazards to people walking on it may be deemed safe if the site
were just fenced off and no other ‘pathways’ (for example, airborne particles)
could be identified. In this case the site is no longer deemed to be ‘contaminated
land’ that requires attention, although physical contaminants still remain.
‘Suitable for use’. The third particular characteristic of UK policy is the emphasis
on the principle of ‘suitability for use’. In the UK no absolute standards are laid
down for remediation. Instead, the rule is that the standard applied to a site
should be specific to the current or proposed land use. Central to this understand-
ing of ‘suitability for use’ is a process of risk assessment. This involves risk esti-
mation by surveying and risk evaluation, where risks are interpreted by
experts, using different guidelines for different land uses (see Petts et al., 1997).
For example, the ‘suitable for use’ approach means that more stringent standards
of remediation are applied if the end use of a site is housing or agriculture, rather
than amenity or hard surface uses. As with other aspects of the policy regime, the
main advantage here is cost-effectiveness. In March 2004, DEFRA published
Remediation of land affected by contamination: a regulatory summary in which it
emphasized the value of the ‘suitability for use’ doctrine because it “ensures
that the amount of resources put into remediation is proportionate to the proposed
use”: a central tenet of ‘development managerialism’.
Thus, the UK government’s ‘suitable for use’ approach consists of three
elements (DETR, 2000, sec 10).
1. Ensuring that land is suitable for its current use.
2. Ensuring that the land is made suitable for any new use, as planning per-
mission is given for that new use.
3. Limiting requirements for remediation to the work necessary to prevent unac-

ceptable 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.
Risk assessment. The fourth characteristic of the UK approach, which links to the
last characteristic, is the critical role it assigns to formal risk assessment. De Sousa
(2001, p. 138) outlined two types of criteria for evaluating the extent of soil
pollution and the clean-up goals that are currently being used internationally.
The first is generic numeric soil quality criteria,7 and the second is site-specific
risk assessment/risk management. The site-specific risk assessment consists of
procedures that develop soil and groundwater criteria that consider tolerance
and risk levels associated with a specific site (De Sousa, 2001, p. 138). Generic
numeric soil quality criteria are not used in the UK as a trigger mechanism.
However, a number of such criteria have been developed by the Environment
Agency through its Contaminated Land Exposure Assessment (CLEA) model.
They indicate (in)tolerable levels of risk for a range of substances and assist in
the definition of what constitutes ‘significant risk’ of ‘significant harm’ as outlined
in the Statutory Guidance. The site-specific risk assessment process guides the
‘suitable for use’ approach. Indeed, it is a necessary corollary to such an approach.
Risk assessment is done by surveying the site, estimating the risks and then
evaluating them by comparing the findings with the Guidance as to what is
deemed ‘acceptable’. Central to the risk assessment process is establishing
whether there is a ‘significant possibility of significant harm’. But this is an ambig-
uous yardstick. The Statutory Guidance for Part IIA (DETR, 2000) sought to clarify
matters by setting out two qualitative tables: Table A ‘Categories of Significant
Harm’ and Table B ‘Significant Possibility of Significant Harm’. However, as
Walker (2002, p. 260) observed “both sets of criteria of harm and significance
depend heavily on the availability and usage of what the guidance terms ‘relevant
information’”.
Only in the last few years has the Environment Agency, with DEFRA, started
to develop a scientific framework for the assessment of risks to human health from
land contamination. The CLEA model, Health Criteria Values (TOX reports) and
Soil Guideline Values (SGVs) have been produced. They are based upon human
studies that can be utilized by technical experts in the process of risk assessment
to provide a more scientific and technical edge to what is deemed ‘acceptable’ and
what is not. The problem at present is that SGVs exist for only a limited number of
contaminants, although more are in the process of being developed. However, as
one local authority contaminated land officer stated:
The SGVs and CLEA are okay when you only have one substance con-
taminating a site. But when you have a cocktail, which is usually the
case, they are not so useful. At first when I worked with these I thought
they were comprehensive. Now I’m not so sure that the numbers we
are working with are quite so solid as I first thought (Interview, 2004).
Decentralized management. The final characteristic of the Part IIA provisions is

that their implementation is decentralized. In this they echo the historical
nature of the regime which allows local actors considerable room for discretion
in order to engage effectively with the development process. At the national
level, responsibility for contaminated land policy in England is divided
between DEFRA and the Department for Communities and Local Government
(DCLG). The decentralized management of the Part IIA regime means that
DEFRA and DCLG have guiding roles for the activities of the enforcing agencies.
DEFRA is responsible for determining the broad principles of environmental
policy and for overseeing the activities of the Environment Agency. DCLG is
responsible for drawing up national policy guidance for the planning function
of local authorities. They key document in this regard is PPS23 Planning and
Pollution Control (ODPM, 2004a).
At the implementation level, Part IIA requires each local authority to prepare
an inspection strategy setting out how it intends to identify contaminated land
and to determine whether particular sites are contaminated sites, as defined in
Part IIA. Most local authorities have now developed a strategy and are currently
in the process of inspection that was expected largely to be completed by 2006
(Environment Agency, 2002).8 Local authorities have responsibility for determin-
ing who may be liable for the costs of remediation and for ensuring that appropri-
ate remediation takes place. They may themselves take action where there is
imminent danger of serious harm to receptors. DEFRA (2004, sec. 7.5) states
that the role “of the enforcing authority is to ensure that any ‘significant pollutant
linkage’ is no longer a significant linkage”. In order to achieve this, the enforcing
authority could remove or treat the pollutant, break or remove the pathway to
receptors, or protect or ultimately remove receptors. The Part IIA regime also
imposes a duty upon authorities to ensure that they maintain a public register
that contains details of remediation actions undertaken under Part IIA. Thus,
local authorities are the lead regulatory body for contaminated sites except for
those sites that authorities have, in consultation with the Environment Agency,
determined to be ‘Special Sites’. In this case responsibility for regulation passes
to the Environment Agency
The Environment Agency has a variety of roles and responsibilities under the
policy regime. It provides information, training and formal advice to local auth-
orities in connection with their inspection, identification and determination
duties. It also provides site-specific advice, when requested to do so by a local
authority. In addition, the Agency is responsible for regulating ‘Special Sites’.
Part IIA sets out in some detail what constitutes a ‘Special Site’. Factors include,
for instance, sites where pollution is actively entering controlled waters, land
contaminated by waste acid tars, Ministry of Defence land and land containing
explosives or chemical weapons.
It is up to local authorities to determine whether a site meets the Part IIA
definition of a ‘Special Site’. After designation takes place, responsibility for
enforcement is transferred to the Environment Agency. It is important to stress
that the process by which sites are designated is not purely technical. A site
may meet the definition of a ‘Special Site’ but the local authority may choose
not to designate it as such because to do so might stigmatize the site and deter
future development or blight nearby property. Alternatively, the Environment
Agency might contest the designation of a site if it judges that the site does
not meet the criteria set out in Part IIA. In this case DEFRA would act as the
arbitrator and decide who the enforcing body should be. As yet there have been
no disputes over this process. However, as one DEFRA official suggested, this
may be because only a small number of sites have so far been identified under
Part IIA9 since many local authorities only started their inspections in 2002
(Interview, 2004).
Planning and Development on Land Affected by Contamination

The pursuit of a ‘development managerialist’ approach to the regulation of
contaminated land is made clear in the Conclusion to PPS23 (ODPM, 2004a,
p. 10, para 26).
The overall aim of planning and pollution control policy is to ensure the
sustainable and beneficial use of land (and in particular encouraging
reuse of previously developed land in preference to greenfield sites). . . .
Opportunities should be taken wherever possible to use the development
process to assist and encourage the remediation of land already affected
by contamination.
Annex 2 to PPS23 (ODPM, 2004b) explains the relationship between Part IIA and
the planning system. The two elements of the contaminated land policy regime are
differentiated in terms of chronology and scope.10 Part IIA addresses historical
land contamination. It applies to risks posed by the current use and circumstances
of the land. It does not take into account risks that might arise in the future, follow-
ing the development of the land. This is a matter for the planning system (ODPM,
2004b, p. 4, para 2.12). Planning, because of its wider perspective, must also con-
sider a wider range of contaminants and receptors than would be the case under
Part IIA (ODPM, 2004b, p. 4, para 2.12). The latter may include, for example, “. . .
general fauna and flora, landscape and amenity” (ODPM, 2004b, p. 17, para 2.50).
It is because of the greater reach of planning that Annex 2 uses the term ‘land
affected by contamination’ in its guidance, instead of the narrower, statutory
term ‘contaminated land’. Allowing for these differences the “. . . broad approach,
concepts and principles of that regime [Part IIA] with respect to identifying risks
from land contamination and dealing with them should be applied to plan-
making and the determination of planning applications” (ODPM, 2004b, p. 1,
para 2.2, square brackets added).
As the guidance (ODPM, 2004b) indicates, the land-use planning system uses
two main mechanisms to pursue its objectives: development planning and devel-
opment control (Cullingworth & Nadin, 2002; Rydin, 2003). The development
planning process produces plans—including the regional spatial strategies
(RSSs) of regional planning bodies (RPBs) and the local development documents
(LDDs) of local planning authorities (LPAs; primarily unitary and district
councils)—which provide a spatial framework to guide investment by developers
and infrastructure providers. Government policy requires RSSs and LDDs to
protect greenfield land from avoidable development by encouraging develop-
ment on brownfield land. This will result in applications for planning permission
for the development of land that may be affected by contamination. Such appli-
cations are determined through the exercise of an LPA’s development control
function. All factors relevant to the land-use aspects of a proposal are considered.
As part of this process, it is the developer’s responsibility to establish to the satis-
faction of the LPA: that the nature and extent of any contamination and the health
and environmental risks to which it may give rise are identified; and that the
remediation treatment proposed will remove unacceptable risk and make the
site suitable for its new use. This relates to any significant contamination and
risk, including that covered by Part IIA.
The necessary remedial actions are secured through the attachment of appro-
priate conditions to the grant of planning permission. As a minimum, once the
development is complete and has started to be used, the land should not
be capable of being determined as ‘contaminated land’ under Part IIA. Where
development occurs on such land and remediation is pursued in accordance
with a planning permission and without a remediation notice, a Remediation
Statement will be required and will be validated—but will not be entered on
the Part IIA (or any other formal) register.
The preceding description establishes the technical and procedural differ-
ences between Part IIA and the planning system as mechanisms for dealing
with contaminated land. The two approaches differ in other more fundamental
ways. The key characteristics of the planning system that distinguish it from
Part IIA are:
. its lead role in achieving the remediation of land affected by contamination;
. the way in which it places the responsibility for action upon the developer;
. the reactive, voluntary nature of planning regulation at the site level;
. the broad scope of the planning system; and
. the balanced approach to remediation that it adopts.
These characteristics will be considered in turn.
The leading role of planning. The government has stated its preference that sites
be redeveloped and regulated via the planning system, rather than the Part IIA
regime (DEFRA, 2004, sec. 6.18). The desire to make use of land and, thereby,
to increase its value is seen both as “. . . the most significant driver for remediating
land affected by contamination . . .” (Environment Agency, 2002, p. 10) and as “. . .
the best means of paying for remediation . . .” (ODPM, 2002, p. 4). Consequently, in
most cases, the planning system will secure the remediation of land through plan-
ning conditions rather than through Part IIA remediation notices (ODPM, 2004b,
p. 4, para 2.14). This emphasis on the planning-led regulation of contaminated
land is a long-standing feature of the British approach to pollution control
because of its cost-effectiveness (with the development industry taking the lead)
and because, as one DEFRA official stated “it is simply not feasible for central gov-
ernment to possess the detailed knowledge of local areas that local planning
departments would have” (interview, 2004). Thus, the decentralized regulation
of development by LPAs is understood to be the most efficient and effective
means of tackling the problem of contaminated land.
Developers’ responsibility. PPS23 is very clear that it “. . . remains the responsibil-

ity of the landowner/developer to identify land affected by contamination and to
ensure that remediation is undertaken to secure a safe development” (ODPM,
2004a, p. 8, para 20). Rydin et al. (2004) identified this limitation of the responsibil-
ity of the LPA relative to that of private developers and landowners as a significant
aspect of planning policies for risks and hazards more generally. They argued that
the reliance placed upon the developer to provide information on, inter alia, land
contamination at site level when applying for planning permission has two con-
sequences. First, planners—who have little technical knowledge of contamination
(ODPM, 2002, p. 4)—must ensure that they have sufficient information to make
sound decisions. Secondly, the potential for planning to manage risk through
development plans and in the early stages of the development control
process—for example, through pre-application negotiation and discussion—is
reduced (Rydin et al., 2004, p. 23).
Reactive, voluntary policy. The planning system commands very few resources.
It must rely on the actions of others to achieve its objectives. It influences those
actions through the development planning and development control pro-
cesses—and through the engagement, negotiation and collaboration with private
actors that they entail (Healey, 1997). Ultimately, private action is voluntary and
is driven by economic (and/or social, political or environmental) imperatives
rather than by planners’ requirements. If planners impose what, to developers,
are unreasonable burdens on schemes, such schemes will be abandoned and no
development will occur. This clearly leaves the initiative with the developer, in
contrast to the Part IIA regime. Partly as a consequence of this, there are significant
intra- and inter-regional variations in the ability of planning to deal with contami-
nated land through the development process.11 Put simply, areas with strong econ-
omies and high demand for new development generate land values sufficient to
cover remediation costs—and areas with weak economies do not.12
Broad scope of planning. The planning system is broad in scope. It controls

development and the use of land in the wider public interest (ODPM, 2002,
p. 9). PPS1 Delivering Sustainable Development (ODPM, 2005) sets out the overarch-
ing policies and key principles that inform the operation of the planning system.
These include: making land available for development in line with economic,
social and environmental objectives; contributing to sustainable development;
protecting and enhancing the environment; ensuring high quality development;
and ensuring that development supports existing communities. Planners necess-
arily exercise a decision-making purview that encompasses many considerations.
They “. . . have a duty to take account of all material considerations . . . [and] . . . all
the relevant circumstances, including known or suspected contamination . . .”
(ODPM, 2004b, p. 6, para 2.20). In other words, contamination is only one factor
among many. It is not accorded the primacy given to it under the Part IIA
regime. Consequently, “A balanced approach is required which addresses the
risk of pollution, whilst recognising the benefits of recycling previously developed
land and the damage to community and business confidence caused by failing to
remediate contaminated land” (ODPM, 2004a, p. 7, para 16).
A balanced approach. The balancing of contamination against other material

considerations is addressed in a particular way in PPS23 and associated policy
documents. The focus is on the interrelations between three factors: (i) the
nature and severity of the contamination and the cost of its remediation; (ii) the
value of the proposed use relative to the current use and its ability to absorb reme-
diation costs; and (iii) the standard of remediation required, given the varying
sensitivity of the receptors associated with different land uses (Environment
Agency, 2002, p. 10; ODPM, 2002, p. 12, para 22; ODPM, 2004b, p. 9, para 2.31).
Such relations may produce a win – win scenario (Rydin et al., 2004, p. 27). For
example, in an area where housing produces high development values, these
may be sufficient to allow the treatment of badly contaminated land, despite the
high standard of remediation that must be achieved in circumstances where
likely receptors include young children. Or it may not. For example, residential
redevelopment, while it may achieve land remediation, may also exacerbate an
existing imbalance between homes and jobs, resulting in a significant increase
in commuting. These balances are a fundamental feature of planning practice.
However, little is known about the way that LPAs trade the achievement of
development benefits against the avoidance or mitigation of risk (Rydin et al.,
2004, p. 28). The competing demands of these two objectives are articulated
both at site level (as above) and at the level of more general policy; for example,
in the shaping of RSSs and LDDs. As already noted, more emphasis has been
given to the remediation of contaminated land because of the government’s
drive to contain urban growth and the consequent need to re-use brownfield
land. Within this policy frame, market processes will increase the incentive to
develop contaminated, brownfield land. This is for two interrelated reasons.
First, such land is the most (in some locations the only) available land. Secondly,
the relative scarcity of building land, combined with the higher minimum
development density standards now prevailing, result in higher urban land
values—values sufficient to cover the cost of remediation. Yet, as Burby et al.
(2001; cited in Rydin et al., 2004, p. 54) argued, urban containment and densifica-
tion necessarily increase exposure to environmental risk. In the case of re-used,
remediated, contaminated land, residual (‘insignificant’) contamination remains
and more of us will live and work closer to it.
Placing the British Approach in an International Context

So far the paper has focused almost exclusively on the policy regime in the UK.
Elsewhere, different approaches have been adopted to tackle the problems
posed by contaminated land. A consideration of these alternatives serves to
highlight their distinctive characteristics.
Meyer et al.’s (1995) important comparative study of contaminated land
policy regimes in the USA and Europe stressed the importance of viewing
contamination policy not simply as a technical issue. Such policy must be
understood in the light of varying environmental experiences, liability
regimes, land-use decision-making procedures and access to financial capital
and insurance; and the different politico-legal contexts within which contami-
nated land policy regimes are developed and implemented. These factors
have produced a range of policy responses by governments to the issue of con-
taminated land. These display differences in how the policy process in a
country is structured, in the relationship between clean-up standards and the
costs of remediation, and in how these costs were to be met and by whom.
Meyer et al. (1995) argued that in Europe a form of corporatism developed
with consensually established clean-up standards. Liability is fault-based
because the state is often the potentially responsible party (PRP), as a result
of the activities of (previously) nationalized industries. Other PRPs are innocent
unless they can be proved to be the original polluter. Consequently, most Euro-
pean states have accepted primary responsibility for the burden of clean up and
redevelopment (Walker, 2002, p. 13). In the USA, by contrast, an individualist
ethos prevails. This means that there is no collective responsibility for clean
up. As a result, private enterprise is liable for the full costs of clean up in
what is termed ‘strict joint and several liability’. All identifiable past and
present owners of land which is designated as contaminated are liable for its
clean up. In this respect, the role of government is simply to set out clean-up
standards and to monitor them. The authors attribute an important element
of this variation in approach to the differing population densities of the USA
and Europe. The typically high population densities of many European
nations and the relative shortage of land for further development drive, in part,
the imperative for the clean up of contaminated sites. By contrast, the problem
in the USA is generally couched in terms of urban regeneration, with the issue
of efficient land-use often not being such a pressing concern.
But, despite the broad common ground in Europe, quite distinct traditions
emerged. The risk-based approach adopted as part of the ‘development manage-
rial’ discourse in the UK contrasts strongly with the ‘multi-functional’ approach
that was adopted in the Netherlands until relatively recently. The latter approach
stressed the need to rehabilitate sites to the highest possible standard, regardless
of the potential costs. However, while the multi-functional approach largely elimi-
nated the residual risks associated with the ‘suitable for use’ approach, it imposed
a heavy burden on the Dutch exchequer. When the Dutch system was established
in the early 1980s, it was estimated by the government that clean-up costs would
amount to approximately 50 billion Euros (Honders et al., 2003, p. 2). These
costs eventually proved to be unacceptable and the Netherlands changed the
basis of its system to incorporate a cost-effectiveness and risk-based assessment
(CABERNET, 2003, p. 2).
In the USA, like the Netherlands, the Superfund programme was
focused almost entirely on health and environment concerns (Meyer et al., 1995,
pp. 73– 74). The Comprehensive Environmental Response and Liabilities Act
(CERCLA) conferred considerable regulatory powers upon state governments
and the federal Environmental Protection Agency (EPA). Whilst state govern-
ments can devise their own legislation—and there is considerable variation in
the policies adopted by different states, with some being more risk conscious
than others—they must meet the basic standards set by federal government (De
Sousa, 2001, p. 140).
However, in recent years the lack of scope in the policy regime to give con-
sideration to cost, future land uses, or the negative effects on the land develop-
ment industry—key features of the UK system—has promoted criticism (Meyer
et al., 1995, pp. 84– 91). Overall, Fitzgerald & Leigh (2002, p. 70) argued that legis-
lation like CERCLA, although devised with the good intention of safeguarding the
health of humans and animals, ‘has had the unintended consequence of sig-
nificantly increasing the difficulties encountered in redeveloping properties
with previous industrial, commercial, or both uses found predominantly, but
not exclusively, in central cities and inner-ring suburbs’. Brownfield redevelop-
ment, particularly of land that is contaminated, has become an increasingly
complex activity and has been one of the factors in the continued expansion of
greenfield development in the USA. In response to these problems, what is essen-
tially a two-tier system has evolved. The Superfund programme is applied pri-
marily to dangerous sites or orphan sites, and voluntary remediation is initiated
by private developers in more tractable cases.13 Overall, this reflects a move
towards UK policy and practice.
In the European Union, while there are similarities in states’ policy aims and
technical approaches to remediating contaminated sites, the differing administra-
tive, legislative and regulatory frameworks have produced some variation in
how contaminated land is constructed as a policy problem (Christie & Teeuw,
1998a; 1998b). There is evidence that the process of Europeanization is taking
place in this policy area. The European Union’s influence on contaminated land
policy has not been through spatial planning, but through directives on environ-
mental protection, such as the Landfill Directive, the Water Framework Directive
and the Soil Framework Directive (Nathanail, 2006). Nathanail (2006, p. 500)
argued that:
The emerging Soil Framework Directive appears to be seeking to estab-
lish, at a European level, legislation to manage the risks from anthropo-
genic contamination. As such it will provide a legal requirement to
consider land contamination risks for the first time in some Member
States and will apparently duplicate existing measures in others.
The risk-based approach adopted in the UK has recently been promoted at a Euro-
pean level by CLARINET and other ‘experience-sharing platforms’ (Nathanail &
Bardos, 2004; Nathanail, 2006). CLARINET is a multi-national, interdisciplinary
research network, supported by the European Union. Its primary objective is to
develop technical recommendations for improving decision-making and remedia-
tion processes on contaminated sites in Europe. In particular, it is an important
advocate for integrating risk assessment, remediation technologies and decision-
making processes in a more systematic approach. CLARINET is arguably
crucial in spreading many of the principles of the British system—particularly
the risk-based approach—to other European nations.
De Sousa (2001) argued that convergence has emerged around specific
aspects of contaminated land policy—and it is towards the UK model. In particu-
lar, there has been an increased adoption of risk-based, suitable-for-use
approaches at the expense of multi-functional approaches. Convergence is also
evident in the development of registers of contaminated land and in the increasing
role that central governments are playing in the development of policy.
Assessing the UK Contaminated Land Policy Regime

Prior to the introduction of Part IIA of the EPA 1990, the regulation of contami-
nated land was managed through the extant institutional and statutory frame-
work relating to public health, pollution control and land-use planning. The
form of the planning system—the leading element in the UK’s current contami-
nated land policy regime—has remained the same for over 50 years, despite the
series of legislative changes that has been made since the Town and Country Plan-
ning Act 1947 (Rydin, 2003). “It is almost certainly the least changed feature . . .
introduced by the 1945 Attlee government” (Cheshire & Sheppard, 2004, p. 2).
Consequently, the novel features of contaminated land policy and practice arise
from two sources. The first is the Part IIA process. It embodies a set of formalized
and developed concepts and principles which are also required to be adopted and
applied by the planning system in its handling of contaminated land. These relate
to the ‘significant risk’ aspect of the definition of contaminated land, the allocation
of liability, the ‘suitable-for-use’ doctrine and ‘risk-based’ remediation. The
second is the relation between the ‘new’ Part IIA process and its ‘leader’, plan-
ning. In combination, they constitute a decentralized, bifurcated regulatory
regime. The way in which the parts interact will have a significant impact on
the effectiveness and efficiency with which they achieve the objectives of ‘devel-
opment managerialism’.
There are a number of strengths and weaknesses within the UK’s policy on
contaminated land, to which the paper now turns. A key strength of the regime
is that it has so far succeeded in containing costs. The policy was structured to
strike a balance between the costs involved in site remediation, on the one
hand, and in protecting human health and safety, on the other. The government
sought to avoid imposing a rigid system that would require funds to be needlessly
spent remediating sites beyond what was immediately required. Instead, it has
encouraged local discretion and not placed too many blockages in the path of
redevelopment. As one EA officer (interview, 2005) noted:
. . . the vast majority of remediation still takes place through the planning
system so we’re not seeing hundreds of Part IIA sites going through the
system. But what you are seeing, I think, is voluntary remediation
coming through which might not otherwise have happened and the
policy pressures for redevelopment of brownfield sites. And, you know,
the government’s objective to get 60 per cent of houses on brownfield
sites fits in quite well with that by saying, “Well, there’s no point in apply-
ing for greenfield sites for development because you ain’t going to get it,
so apply for brownfield sites” and [they will get cleaned up] without ever
having to, you know, start doing inspections and designations . . . in prin-
ciple if the councils and the agency use them to their best effect then
they’re extremely complimentary and basically you use Part IIA as the
tool of last resort. Well, you don’t use Part IIA really. You use the planning
system wherever you possibly can and you use Part IIA almost as the stick
to try and encourage people to go through planning.
This is the essential logic of ‘development managerialism’.

However, a major weakness of UK policy is inherent in the emphasis it places
on cost-effectiveness. Friends of the Earth (2000) argued that the ‘suitable-for-use’
principle sets inadequate standards and ignores ‘real life risks’ from contact with
contaminated soils.14 Thus the ‘suitable-for-use’ approach may ultimately prove
to be less cost-effective than expected. As Smith (1999: 382) observed
the new regime may be less thorough in its research and may discard
information that could become useful at a later date . . . A site may be suf-
ficiently clean for its current or near future uses, but be ‘contaminated’ by
the standards of a subsequent use.
Local authorities may only retain information on sites where there is a conflict
with their current uses and disregard information that may prove important if
the sites change function. Thus, the ‘suitable-for-use’ approach could, in effect,
leave a toxic debt for future generations to address.
The second thrust of Friends of the Earth’s (2000) criticism was directed at
local authorities and the Environment Agency. Friends of the Earth maintain
that these bodies have been ineffective in their policing of clean-up operations
because they are under-resourced. Consequently, sites have proved to be unsafe
even after remediation or may not have been remediated at all. Numerous local
authority and Environment Agency staff interviewed during 2004 complained
of under-funding:
[There is great variation in implementation of Part IIA] because there are

so many local authorities, with different resources and with their own
local agendas. Some are great and proactive and work with us and
others don’t. Sometimes you just wish it was the agency doing it, that it
was just the [Environment] Agency that had done the strategy and
things. It’s the unevenness of it, so some communities will be getting a

good service and other won’t (interview, EA officer, 2004).
There was, however, a broad consensus that the Environment Agency also lacks the
resources in terms of personnel and finance properly to fulfil its role in regulating
contaminated land. The requirement that the Agency endorses local authority
remediation strategies on sites before any SCE funding can be given has meant
that significant delays have occurred in remediation because the Agency lacks
the capacity to respond to the demands for site assessment being placed upon it.
In their final criticism, Friends of the Earth suggest that there is a danger that
local authorities may ignore ‘orphan sites’ whose remediation costs they would
have to bear. Several local authority officers interviewed denied that local auth-
orities were deliberately ignoring sites, but did admit that not everything could
be tackled at once. As one local authority officer explained:
We cannot treat every site in this area. We have to prioritise sites in order
of their threats to people. Obviously we’d like to do them all immediately,
but there simply isn’t the money or resources for us to do it (interview,
2004).
This relates to another weakness of the UK system, namely the lack of time-scales
for action included in the guidance other than the requirement to prepare an
inspection strategy. As a consequence, some local authorities have failed to act
on some sites as there is nothing indicating how long they should take over the
process of designation.
Turning next to the interaction of the two elements of the policy regime, the
paper borrows from Keysar’s (2003) analysis of procedural integration in support
of the implementation of environmental policy. She argued that integrated
approaches require the combination of procedures with different characteristics.
Consequently, such approaches are “. . . difficult to implement because they
cross traditional organizational structures, disciplines, ways of thinking, and
other boundaries” (Lachman et al., 2001, p. 15, cited in Keysar, 2003, p. 562) Pro-
blematic misalignments in regulatory philosophies may therefore arise where
risk problems straddle regulatory domains. Occupational cultures are harder to
change than rules (Rothstein et al., 2005). Just such differences are present in the
UK contaminated land policy regime. The planning system is (after Keysar,
2003, p. 553) goal-seeking, relational and systems-based, holistic and participa-
tory. In contrast, the Part IIA process is problem-solving, project-focused, specific,
technical and exclusive. In addition, at the site level, Part IIA is a proactive, partly
publicly funded and operated process that focuses on dealing with contaminated
sites for which there is no immediate prospect of development. The planning
system, on the other hand, is reactive (to development proposals) and achieves
privately funded treatment of contamination through the exercise of public regu-
lation (Henneberry et al., 2005). Yet
. . . the Government expects RPBs and LPAs to adopt a strategic approach
to integrate their land use planning processes with plans and strategies
for the control, mitigation and removal of pollution, as far as it is possible
and practicable to do so (ODPM, 2004a, p. 10, para 26).
But, apart from identifying some of the differences between the Part IIA and plan-
ning approaches—for example, between ‘contaminated land’ and ‘land affected
by contamination’—national policy guidance is silent on the difficulties that may

arise from the current, bifurcated regulatory regime.
The potential for operational tension is endemic to the policy regime. It may
arise from the varied influence of three main factors on agency action in different
elements of the regime: administrative convenience/transaction costs, problem
severity and political pressure (Daley & Layton, 2004). Put simply, policy
implementation is driven by some combination of these factors. Where adminis-
trative convenience/transaction cost minimization prevails, sites that are easier
to tackle—whether for technical and/or other reasons—are dealt with first,
early progress is made and the policy is viewed favourably. Conversely, pro-
fessional norms and the nature of ‘contaminated land’ would suggest that the
worst sites are remediated first. This would be in line with a key objective of
Part IIA, to protect the public from environmental risk. Community or other inter-
est groups may exert political pressure on policy implementation. Sites that are
sensitive in political terms may be dealt with before sites that represent a
greater environmental risk. Daley & Layton (2004) were dealing with the
implementation of the Superfund programme by the US Environmental Protec-
tion Agency. To accommodate the UK approach, the ‘dual-funded’ nature of
our policy regime (SCE/public and development-driven/private) and its wider
set of objectives (covering both risk mitigation and sustainable redevelopment
of urban brownfield land) must also be taken into account.
The Part IIA process is overseen by DEFRA and the Environment Agency.
The local authority is the lead regulator (‘Special Sites’ apart), usually exercising
this role through environmental health departments. There is no right for the
public to participate in the formulation of inspection strategies or in the pursuit
of the inspection and remediation of ‘contaminated land’. Political pressure is
therefore limited to that which may be exercised through the influence of the
elected members of the local authorities. One Environment Agency interviewee
(2004) suggested that s/he had experienced resistance to the Part IIA approach:
Unfortunately, since Part IIA came in, because it is seen as being quite a
complicated regime, I think people in the regulatory trade and local auth-
orities felt comfortable keeping it the way it was, keeping the status quo.
Consultants would come and look through and we would say that’s not
right or could you do a bit more work. There was no openness and trans-
parency there at all. Given that both the agency and local authorities are
supposed to be there for the public good, it’s pretty outrageous really.
It is early days yet. Few inspection strategies have been completed. The number of
sites determined as ‘contaminated land’ is low. Consequently, there is not yet
sufficient evidence available to establish which of administrative convenience
and problem severity is the greater influence on Part IIA processes.15 However,
at individual case level, the interplay between political sensitivity and problem
severity can be observed.
Rothstein et al. (2005, p. 3) argued that this presents regulators with a particu-
lar dilemma. Policy attention—and potentially action—may focus “. . . on pro-
blems that carry high institutional risks for the regulator at the expense of those
that carry high risks for society”. The tensions between political and environ-
mental risk may produce more or less expected outcomes. In the London
Borough of Barking and Dagenham the local authority expended considerable
resources addressing relatively low level environmental risks on the Thamesview
Estate. However, these risks affected a large resident population with possibly
very significant political influence—so the attention and the action devoted to
them were not surprising. In contrast, a severely contaminated site in another
local authority was the subject of much policy attention—because of the high
environmental risk—but little policy action—because the authority in question
was seeking to minimize the potential political fall-out of any remediation pro-
blems (for example, the impact on local house prices).
Similar but less acute tensions between technical and political issues have
emerged the more clearly because of the bifurcated nature of the policy regime.
The Environment Agency and local authorities are dual regulators of contami-
nated land. However, access to central funding depends on the Agency’s endorse-
ment of the remediation methods that local authorities propose for a site. As one
local authority officer stated:
In order to get SCE funds we have to win the approval of the Environment
Agency for the methods that we propose to employ. Basically, they have
the veto over any of our activities because if they don’t approve our pro-
posals then we can’t proceed with remediation (interview, 2004).
But what the Environment Agency thinks is an appropriate solution in technical
terms may differ markedly from what the local authority thinks is required to
meet wider political and planning objectives. This again highlights the differing
characteristics of the Part IIA process and the planning system. It is possible
that treatment rendering a site incapable of being determined as ‘contaminated
land’ will, nevertheless, be rejected by planners for other reasons. And, while
the precise opposite could not occur because of statute, it is also possible that
planners—when faced with two development proposals for land affected by
contamination—will select the one presenting the higher residual risk because it
offers other benefits. In addition, as one Environment Agency officer noted,
there exists the possibility that some hazardous sites:
could be missed out in planning. We are reliant on the local authorities
realizing that there may be issues that we should be involved in to do
with water issues, because we won’t talk about human health or anything
like. We only get involved in that through Part II A. Our involvement in
planning is purely protection and controlled water issues (interview,
2004).
A key point, however, is that the Part IIA system has provided local authorities
and the Environment Agency with considerably more powers than the previous
system:
. . . pre-2000, a firm would identify the sites contaminated and they would
have come to the Agency, and the Agency would have these conversa-
tions with them and try to influence them to do the right thing. We actu-
ally really didn’t have many powers. We had some powers in the Water
Resources Act but they weren’t particularly clear and they weren’t used
often. Local authorities would usually wash their hands of issues and
say we haven’t got powers to do anything, go and speak to the Agency.
But the Agency could only ever speak about water resource issues, it
couldn’t look at human health issues. So it was a bit of a murky world
really, it depended on how busy your local authority or agency office
was at the time, and how much time they would put into it, and how pro-
active the actual site owner wanted to be. If they wanted to play silly
buggers and say make us do it, usually we couldn’t. So we had no
powers to do anything (interview, EA officer, 2004).
Conclusions
The current emphasis on recycling brownfield sites has pushed the issue of con-
taminated land further up the political agenda. The paper has explored the domi-
nant discourse—‘development managerialism’—that frames the UK approach to
contaminated land. The notion of a discourse has been used as a flexible tool to aid
what is a broad, initial analysis of a particular policy regime. The concern has been
to examine the institutional context and practices in and through which ‘develop-
ment managerialism’ is stated and understood. It is suggested that the discourse is
the product of the long-standing approaches of the UK state to land use and phys-
ical development. These have been pursued mainly through a planning system
that is reliant on the regulation of private action to achieve its ends.
The strength of the discourse was enhanced considerably by the move
towards a plan-led system in the 1990s (Cullingworth & Nadin, 2002; Rydin,
2003) and the emergence of sustainable development as one of its key objectives.
In combination, these features of planning have supported a markedly more
restrictive stance towards the release of greenfield land for development. Land
values have risen as a consequence; and to a level sufficient to meet the costs of
treating much contaminated brownfield land. As a result, the reliance placed on
the development process to remediate contaminated land has been made more
secure. This is not to say that the latest evolution of the regime has not presented
developers with problems of adjustment (see, for example, Adams, 2004); or that
no concerns have been expressed by other (none-planning) elements of the state
(as evidenced by the debate surrounding the Barker Review, 2004).
The UK’s approach to contaminated land has been pragmatic and ad hoc.
Cost-effectiveness has been an important driver. Contaminated land has not
been treated as an environmental or health issue requiring comprehensive
action. Nevertheless, formal regulation and treatment of contaminated land is
necessary, even if it has been made conditional and relative. The bifurcated
nature of the system that has evolved to deal with the problem gives rise to oper-
ational tensions. However, this does not amount to a fundamental challenge to the
‘development managerialist’ approach.
The policy documents of the two responsible central government depart-
ments embody the approach (see, for example, DEFRA, 2004, 2006; Environment
Agency, 2002; ODPM, 2002, 2004a, 2004b; as discussed and referred above). In
addition, there is implicit acceptance of the main characteristics of ‘development
managerialism’ in the views of implementing officers in national and local organ-
izations, whether they are concerned with planning or with Part IIA (see quota-
tions and analysis above). Operational difficulties remain: difficulties relating to
the availability of resources, to different professional and technical perspectives
on specific elements of the policy regime, and to the interrelationships between
its two parts. These problems—and the ways in which they are resolved in prac-
tice—affect the operation of ‘development managerialism’. They need further con-
sideration, as does the impact of extra-state actors such as developers and
pressure groups which have not been considered here.
Acknowledgement
This paper is based on work undertaken for Work Package C ‘Multi-level decision
making processes, expertise and sustainable urban regeneration’, part of a colla-
borative research programme on ‘Sustainable Urban Brownfield Regeneration:
Integrated Management’ (SUBR:IM) funded by the Engineering and Physical
Sciences Research Council (grant number GR/S148809/01). The authors are grate-
ful for EPSRC’s support. They are also grateful to Sally Shaw of the Greater
Manchester Geological Unit and Tim Richardson, School of Environment and
Development, Sheffield Hallam University for their helpful comments on a
draft version of the paper. The views presented in the paper are those of the
authors and cannot be taken as indicative in any way of the position of
SUBR:IM colleagues or of EPSRC on the subject. All errors are similarly those of
the authors alone.
Notes
1. It should be noted that this paper refers to UK policy but essentially deals with the institutions and
policies that apply to England. The policy approaches adopted in Scotland, Wales and Northern
Ireland are similar to the one that operates in England, although there are differences in the actors
involved and their relative competencies.
2. The most prominent of which were those occurring at Love Canal in the USA and Lekkerkerk in
the Netherlands (see Petts et al., 1997).
3. A ‘material consideration’ is a matter that must be taken into account when determining a
planning application. The range of issues that can be material considerations is wide and can
include representations made by the public, infringements on privacy, design issues, draft
plans, development impacts and comments made by statutory and non-statutory consultees.
However, issues that are not ‘material considerations’ and which cannot be used as reasons to
refuse a planning application include the loss of a view, commercial competition and the effect
the proposal might have on property values and ownership. It is for planning authorities to
decide what weight to attach to each material consideration.
4. The terms ‘Part IIA’ and ‘Statutory Guidance’ are used here interchangeably throughout to refer to
the overall policy regime for dealing with contaminated land (as defined by the guidance).
5. ‘Controlled waters’ are defined in Part 3 (section 104) of the Water Resources Act 1991, and encom-
pass territorial and coastal waters, inland fresh waters, and ground waters. Section 78A(9) was
amended by section 86 of the Water Act 2003 so that, for Part IIA purposes, ‘ground waters’
does not include waters contained in underground strata but above the saturation zone (Defra,
2006, p. 182).
6. Revenue support related to Part IIA activities has been given by the government since 1999/2000
via the “Environmental Protection and Cultural Services” (EPCS) component of RSG. However,
the EPCS block is not ring-fenced. While overall support is being increased by a total of £1.2
billion for the period 2005/06 to 2007/08, it will be for individual authorities to decide whether
or not to increase their expenditure on contaminated land matters (DEFRA, 2005).
7. These are numerical indices that can be used for both assessment and clean-up activities derived
from toxicological studies that identify levels according to a tolerable health risk.
8. Evidence of current progress suggests that this target date is likely to prove optimistic (see below).
9. Environment Agency (2004) stated that by September 2004, 69 sites had been determined as con-
taminated land in England, and 9 in Wales. Of these, 21 have been designated as special sites
where the Environment Agency is the lead regulator, 19 in England and 2 in Wales. Most of
these sites were relatively small, with 59 being less than 5 ha in area.
10. Interestingly a third distinction, based upon the severity of the contamination/risk, was made in
an earlier consultation paper (ODPM, 2002) which stated that “Part IIA specifically deals with
land contamination posing the greatest risk . . .” (10, para 15) but does not appear in PPS23 or
Annex 2.
11. The other main influence is the spatial distribution of contaminated land (English Partnerships,
2003) which, for historical reasons, does not mirror the pattern of economic performance.
12. For example, “One of the best indicators as to whether sites are moving through the redevelop-
ment process is the planning status of the site” (English Partnerships, 2004, p. 13). The proportion
of brownfield land with no planning status in Yorkshire and the Humber is 39 per cent and in the
North West is 30 per cent. In contrast, the equivalent figures for the South East and London are 19
per cent and 12 per cent, respectively.
13. The authors are grateful to an anonymous referee for this observation.
14. Again, SGV values have gone some way to addressing this concern but they are still incomplete.
15. Daley & Layton (2004) found clear evidence that the EPA had tackled the easier sites first in the
Superfund programme.
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Dealing with Contaminated Land in the UK through ‘Development

Article in Journal of Environmental Policy and Planning · December 2006

Philip Catney James Meadowcroft

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Dealing with Contaminated Land in the UK through

PHILIP CATNEY, JOHN HENNEBERRY, JAMES MEADOWCROFT &

KEY WORDS: Contaminated land, policy regime, policy implementation, planning,

Correspondence Address: John Henneberry, Department of Town and Regional Planning,

1523-908X Print=1522-7200 Online/06=040331-26 # 2006 Taylor & Francis

The Evolution of UK Policy for Contaminated Land

“minimal demands” on local authority resources and provide a means of alerting

The Details of the UK Contaminated Land Policy Regime

inter alia, officers in ODPM/DCLG, the Environment Agency, regional develop-

Part IIA of the Environmental Protection Act 1990

Defining ‘contaminated land’. A distinctive characteristic of the UK approach is

Allocation of liability. The second key characteristic of the UK approach is how

3. Limiting requirements for remediation to the work necessary to prevent unac-

Decentralized management. The final characteristic of the Part IIA provisions is

Planning and Development on Land Affected by Contamination

Developers’ responsibility. PPS23 is very clear that it “. . . remains the responsibil-

Broad scope of planning. The planning system is broad in scope. It controls

A balanced approach. The balancing of contamination against other material

Placing the British Approach in an International Context

Assessing the UK Contaminated Land Policy Regime

This is the essential logic of ‘development managerialism’.

[There is great variation in implementation of Part IIA] because there are

things. It’s the unevenness of it, so some communities will be getting a

by contamination’—national policy guidance is silent on the difficulties that may

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