The Contaminated Land Regime — New Guidance and a New Philosophy?

Abstract

This article examines the new contaminated land guidance for England published in April 2012, and the underlying tensions apparent in the philosophy behind the changes made to the previous guidance contained in Defra Circular 01/2006. It looks, in particular, at the approach that the new document takes in relation to scientific uncertainty and risk management, as well as considering the ‘new’ presumption against a determination of contamination, the reliance on the precautionary principle, and the treatment of background contamination. It also examines the conflict apparent in the document between local decision-making and nationally mandated goals and processes. In attempting to ensure that regulatory intervention has a net benefit, the guidance both allows local flexibility and heavily prescribes that flexibility. The resulting document, it is suggested, is a compromise and one full of tensions. It was designed to simplify and clarify the pre-existing contaminated land regime, and although in some areas, such as cost recovery, it achieves this, it brings new challenges to enforcing authorities. The new approach can best be seen, however, as a genuine attempt at a response to the difficulties of decision-making in this area. It is important that uncertainty and difficulty in examining and applying the new guidance do not become excuses for inaction.