In fulfilment of Scottish Government objectives it is the Council's duty to:
- identify and remove unacceptable risks to human health and the environment
- seek to bring damaged land back into beneficial use; and
- seek to ensure that the cost burdens faced by individuals, companies and society as a whole are proportionate, manageable and economically sustainable.
These objectives underlie the "suitable for use" approach adopted by the Scottish Government, which recognises that the risk presented by any given level of contamination will vary greatly according to the use of the land and a wide range of other factors, such as proximity to a watercourse, the underlying geology of the site etc. Risks therefore need to be assessed on a site-by-site basis.
The "suitable for use" approach comprises the three following elements:
- ensuring that land is suitable for its current use - i.e. identifying any land where contamination is currently causing unacceptable risks to human health and the environment, and taking measures to remove those risks.
ensuring that land is made suitable for any new use, as planning permission is given for that new use - i.e. identifying potentially contaminated land and requiring risk assessment and, where necessary, remediation to render land suitable for the proposed use, as this is planned, via the town and country planning and building control regimes.
- limiting requirements for remediation to the work necessary to prevent unacceptable risks to human health or the environment in relation to the current use or future use of the land for which planning permission is being sought - i.e. recognising that risks from land contamination must be assessed in the context of either a current or planned future use, to prevent premature or unnecessary work (which could distort social, economic and environmental priorities or waste resources).
In practice Dundee City Council enforces these regulations in two main ways summarised here and detailed below. Land is dealt with either:
under current use - completely under EPA1990 PartIIA regulations and the Statutory Guidance or
under proposed use - under the EPA1990 Part IIA regulations, Statutory Guidance and Planning Advice Note 33.
The local authority is the lead regulator in the Contaminated Land regime, but is bound to consult with the Scottish Environmental Protection Agency (SEPA) as necessary, regarding risks to the water environment and in relation to special sites. Special sites are areas where particularly hazardous land-uses or chemicals of concern have been used, or where a particularly sensitive impact may be occurring. Where an area of land is identified as contaminated land by the local authority and is also a special site then SEPA will take the lead in regulation. For radiological contamination SEPA are the lead regulator.
1) Current Land use - Contaminated Land Inspection Strategy
In order to identify land contamination that may be causing unacceptable risks to human health and the environment the regulations require that each local authority prepare an inspection strategy. Dundee City Council's first strategy was prepared in 2001, with the most recent update of the strategy being approved in 2016.
For more information on how the council administers the contaminated land regulations see the link below to view Dundee City Council's Contaminated Land Strategy (2016).
Following publication of the Strategy, Contaminated Land Officers have carried out numerous inspections and investigations throughout the City as part of an ongoing programme of works. This work is ongoing under funding from the Scottish Government.
The EPA1990 Part IIA and Statutory Guidance require that local authorities create and maintain a Public Register of information relating to land statutorily identified as contaminated land. There is currently one entry on the Public Register.
2) Proposed Land use - Contaminated Land and the Planning System
Contaminated Land Officers within Dundee City Council scrutinise the weekly list of planning applications to identify applications being made for developments on previously used land (Brownfield sites), which could be affected by contamination.
The Council maintains a database of historical land-use records for the City. When a planning application is received for a Brownfield site where there is reasonable concern that historic land use could have caused land contamination officers alert the team within the Planning Division dealing with the application. Where new development is proposed on such a site the Council is advised by Scottish Government Planning Advice Note 33 to take measures to ensure the site is demonstrated suitable for the proposed use before allowing that use. In practise Dundee City Council typically uses one of the following measures:
An advisory note may be applied to planning consent, requiring that if any contamination is encountered the Council shall be informed and a strategy to deal with contamination implemented.
A Preliminary Risk Assessment may be required prior to any planning consent, requiring the applicant to demonstrate they have considered potential land contamination risks associated with the proposed development and provide details of appropriate further work necessary to complete a more full risk assessment.
Planning consent may be given on condition that a scheme to assess and deal with contamination is submitted to and approved by the council. This type of condition comprises two parts. The first does not allow development to proceed until the scheme is agreed by the council. The second does not allow units to be occupied prior to the scheme being satisfactorily implemented and agreed by the council. The following text is a typical example of such a condition:
Development shall not begin until a Preliminary Risk Assessment is completed and, if required an Intrusive Investigation and a scheme to deal with contamination at the site has been submitted to and approved in writing by the planning authority. The scheme shall contain details of proposals to deal with contamination to include:
assessment of the risks associated with contaminant sources, pathways and receptors specific to the proposed use of the site, and if necessary.
remediation Implementation Plan detailing measures to treat/remove contamination and mitigate risks to ensure the site is fit for the proposed use,
measures to deal with contamination during construction works, and
verification of the condition of the site on completion of decontamination measures.
Before any unit is occupied the remediation strategy shall be fully implemented and a verification report with relevant documentation demonstrating that the objectives of the remediation strategy have been achieved shall be submitted to and approved by the planning authority.