The Contaminated Land (Wales) Regulations 2006

Welsh Statutory Instruments

2006 No. 2989 (W.278)

ENVIRONMENTAL PROTECTION, WALES

The Contaminated Land (Wales) Regulations 2006

Made

15 November 2006

Coming into force

10 December 2006

The National Assembly for Wales (“the National Assembly”), in exercise of the powers conferred on the Secretary of State by sections 78A(9), 78C(8) to (10), 78E(1) and (6), 78G(5) and (6) M1 , 78L(4) M2 and (5) and 78R(1), (2) and (8) of the Environmental Protection Act 1990 (“the 1990 Act”) M3 and which are now exercisable in relation to Wales by the National Assembly M4 , and those sections as applied in relation to harm, so far as attributable to any radioactivity possessed by any substance, by the Radioactive Contaminated Land (Modification of Enactments) (Wales) Regulations 2006 (“the Modification Regulations”) M5 , makes the following Regulations:

Modifications etc. (not altering text)

C1 Regulations applied (with modifications) by S.I. 2006/2988, reg. 19 (as inserted (10.12.2007) by The Radioactive Contaminated Land (Modification of Enactments) (Wales) (Amendment) Regulations 2007 (S.I. 2007/3250), regs. 1, 3(8))

Marginal Citations

M1 Section 78G(6) provides that regulations made under subsection 78G(5) may make such provision in relation to compensation as may be made by regulations by virtue of section 35A(4) of the 1990 Act in relation to compensation under that section.

M2 Subsection (4) of section 78L was amended by the Clean Neighbourhoods and Environment Act 2005 (c. 16), sections 104 and 107, and Part 10 of Schedule 5.

M3 1990 c. 43. Sections 78A to 78YC were inserted by section 57 of the Environment Act 1995 (c. 25). See the definition of “prescribed” and “regulations” in section 78A(9).

M4 See article 2 of, and Schedule 1 to, the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672).

M5 S.I. 2006/2988 (W.277).

Title, commencement, application and interpretation E+W

1.—(1) The title of these Regulations is the Contaminated Land (Wales) Regulations 2006 and they come into force on 10 December 2006.

(2) These Regulations apply in relation to Wales.

(3) In these Regulations, unless otherwise indicated—

(a) any reference to a numbered section is to the section of the 1990 Act which bears that number or, in relation to harm attributable to any radioactivity possessed by any substances, to that section as modified by the Modification Regulations; and

(b) in relation to harm, so far as attributable to any radioactivity possessed by any substances, any term defined by the 1990 Act has the meaning given to it by that Act as modified by the Modification Regulations.

Land required to be designated as a special site E+W

2.—(1) Contaminated land of the following descriptions is prescribed for the purposes of section 78C(8) as land required to be designated as a special site—

(a) land affecting controlled waters in the circumstances specified in regulation 3;

(b) land which is contaminated land by reason of waste acid tars in, on or under the land;

(c) land on which any of the following activities have been carried on at any time—

(i) the purification (including refining) of crude petroleum or of oil extracted from petroleum, shale or any other bituminous substance except coal, or

(ii) the manufacture or processing of explosives;

(d) land on which a prescribed process designated for central control has been, or is being, carried on under an authorisation, where the process does not solely consist of things being done which are required by way of remediation;

(e) land on which an activity has been, or is being, carried on in a Part A(1) installation F1 ... under a permit, where the activity does not solely consist of things being done which are required by way of remediation;

[F2 (ea) land on which an activity has been carried on by means of Part A(1) mobile plant under a permit, where the activity did not solely consist of things being done which were required by way of remediation;]

(f) land within a nuclear site;

(g) land owned or occupied by or on behalf of—

(i) the Secretary of State for Defence,

(ii) the Defence Council,

(iii) an international headquarters or defence organisation, or

(iv) the service authority of a visiting force,

being land used for naval, military or air force purposes;

(h) land on which the manufacture, production or disposal of—

(i) chemical weapons,

(ii) any biological agent or toxin which falls within section 1(1)(a) of the Biological Weapons Act 1974 M6 (restriction on development of biological agents and toxins), or

(iii) any weapon, equipment or means of delivery which falls within section 1(1)(b) of that Act (restriction on development of biological weapons),

has been carried on at any time;

(i) land comprising premises which are, or were, designated by the Secretary of State by an order made under section 1(1) of the Atomic Weapons Establishment Act 1991 M7 (arrangements for development etc of nuclear devices);

(j) land to which section 30 of the Armed Forces Act 1996 M8 (land held for the benefit of Greenwich Hospital) applies;

(k) land which is contaminated land wholly or partly by virtue of any radioactivity possessed by any substance in, on or under that land; and

(l) land which is—

(i) adjoining or adjacent to land of a description specified in any of sub-paragraphs (b) to (k), and

(ii) contaminated land by virtue of substances which appear to have escaped from land of such a description.

(2) For the purposes of paragraph (1)(b), “waste acid tars” are tars which—

(a) contain sulphuric acid;

(b) were produced as a result of the refining of benzole, used lubricants or petroleum; and

(c) are, or were, stored on land used as a retention basin for the disposal of such tars.

(3) In paragraph (1)(d), “authorisation” and “prescribed process” have the same meanings as in Part I of the 1990 Act (integrated pollution control and air pollution control by local authorities) and the reference to designation for central control is a reference to designation under section 2(4) (which provides for processes to be designated for central or local control).

[F3 (4) In paragraph (1)(e), “Part A(1) installation” [F4 has the same meaning as in the Environmental Permitting (England and Wales) Regulations 2016], and “permit” has the same meaning as “environmental permit” in those Regulations].

[F5 (4A) In paragraph (1)(ea), “Part A(1) mobile plant” has the same meaning as in the Environmental Permitting (England and Wales) Regulations 2010 as those Regulations were in force on 26th February 2013, and “permit” has the same meaning as “environmental permit” in those Regulations as at that date.]

(5) In paragraph (1)(f), “nuclear site” means—

(a) any site in respect of which, or part of which, a nuclear site licence is for the time being in force; or

(b) any site in respect of which, or part of which, after the revocation or surrender of a nuclear site licence, the period of responsibility of the licensee has not come to an end.

(6) In paragraph (5), “nuclear site licence”, “licensee” and “period of responsibility” have the meanings given by the Nuclear Installations Act 1965 M9 .

(7) For the purposes of paragraph (1)(g), land used for residential purposes or by the Navy, Army and Air Force Institutes is to be treated as land used for naval, military or air force purposes only if the land forms part of a base occupied for naval, military or air force purposes.

(8) In paragraph (1)(g)—

• M10 “international headquarters” and “defence organisation” mean, respectively, any international headquarters, and any defence organisation, designated for the purposes of the International Headquarters and Defence Organisations Act 1964 ;

• M11 “service authority” and “visiting force” have the same meanings as in Part I of the Visiting Forces Act 1952 .

(9) In paragraph (1)(h), “chemical weapon” has the same meaning as in sub-section (1) of section 1 of the Chemical Weapons Act 1996 M12 , disregarding sub-section (2) of that section.

Textual Amendments

F1 Words in reg. 2(1)(e) omitted (1.1.2017) by virtue of The Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154), reg. 1(1), Sch. 29 para. 24(2)(a)(i) (with regs. 1(3), 77-79, Sch. 4)

F2 Reg. 2(1)(ea) inserted (1.1.2017) by The Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154), reg. 1(1), Sch. 29 para. 24(2)(a)(ii) (with regs. 1(3), 77-79, Sch. 4)

F3 Reg. 2(4) substituted (6.4.2008) by The Environmental Permitting (England and Wales) Regulations 2007 (S.I. 2007/3538), reg. 1(1)(b), Sch. 21 para. 50 (with regs. 69-72)

F4 Words in reg. 2(4) substituted (1.1.2017) by The Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154), reg. 1(1), Sch. 29 para. 24(2)(a)(iii) (with regs. 1(3), 77-79, Sch. 4)

F5 Reg. 2(4A) inserted (1.1.2017) by The Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154), reg. 1(1), Sch. 29 para. 24(2)(a)(iv) (with regs. 1(3), 77-79, Sch. 4)

Marginal Citations

M6 1974 c. 6.

M7 1991 c. 46.

M8 1996 c. 46.

M9 1965 c. 57.

M10 1964 c. 5.

M11 1952 c. 67.

M12 1996 c. 6.

Pollution of controlled waters E+W

3.— [F6 (1)] The circumstances to which regulation 2(1)(a), refers are where—

(a) controlled waters which are, or are intended to be, used for the supply of drinking water for human consumption are being affected by the land and, as a result, require a treatment process or a change in such a process to be applied to those waters before use, so as to be regarded as wholesome within the meaning of Part 3 of the Water Industry Act 1991 M13 (water supply);

[F7 (b) controlled waters are being affected by the land and, as a result—

(i) those waters do not meet or are not likely to meet the criterion for classification applying to the relevant description of waters specified in regulations made under section 82 of the Water Resources Act 1991 (classification of quality of waters); or

(ii) for controlled waters that are designated as [F8 shellfish water protected areas or bathing waters, those waters do not meet the environmental objectives that apply to them as set out in the relevant river basin management plan under Part 6 of the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017]; or]

(c) controlled waters are being affected by the land and—

(i) any of the substances by reason of which the pollution of the waters is being or is likely to be caused falls within any of the families or groups of substances listed in paragraph 1 of Schedule 1 to these Regulations, and

(ii) the waters, or any part of the waters, are contained [F9 in underground strata within the saturation zone] which comprise wholly or partly any of the formations of rocks listed in paragraph 2 of Schedule 1 to these Regulations.

[F10 (2) In this regulation—

(a) “bathing water” has the same meaning as in the Bathing Water Regulations 2013;

(b) “shellfish water protected area” means a body of water designated under regulation 9 of the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017.]

Textual Amendments

F6 Reg. 3 renumbered as reg. 3(1) (31.12.2020) by The Flood and Water (Amendments) (England and Wales) (EU Exit) Regulations 2019 (S.I. 2019/460), regs. 1(1), 2(a); 2020 c. 1, Sch. 5 para. 1(1)

F7 Reg. 3(b) substituted (6.4.2012) by The Contaminated Land (Wales) (Amendment) Regulations 2012 (S.I. 2012/283), regs. 1(1), 2(2)(a)

F8 Words in reg. 3(1)(b)(ii) substituted (31.12.2020) by The Flood and Water (Amendments) (England and Wales) (EU Exit) Regulations 2019 (S.I. 2019/460), regs. 1(1), 2(b); 2020 c. 1, Sch. 5 para. 1(1)

F9 Words in reg. 3(c)(ii) substituted (6.4.2012) by The Contaminated Land (Wales) (Amendment) Regulations 2012 (S.I. 2012/283), regs. 1(1), 2(2)(b)

F10 Reg. 3(2) inserted (31.12.2020) by The Flood and Water (Amendments) (England and Wales) (EU Exit) Regulations 2019 (S.I. 2019/460), regs. 1(1), 2(c); 2020 c. 1, Sch. 5 para. 1(1)

Marginal Citations

M13 1991 c. 56.

Content of remediation notices E+W

4.—(1) A remediation notice must state (in addition to the matters required by section 78E(1) and (3))—

(a) the name and address of the person on whom the notice is served;

(b) the location and extent of the contaminated land to which the notice relates (in this regulation referred to as the “contaminated land in question”) in sufficient detail to enable it to be identified, whether by reference to a plan or otherwise;

(c) the date of any notice which was given under section 78B(3) to the person on whom the remediation notice is served identifying the contaminated land in question as contaminated land;

(d) whether the enforcing authority considers the person on whom the notice is served is an appropriate person by reason of—

(i) having caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is contaminated land, to be in, on or under that land, or

(ii) being the owner or occupier of the contaminated land in question;

(e) particulars of the significant harm, harm or pollution of controlled waters by reason of which the contaminated land in question is contaminated land;

(f) the substances by reason of which the contaminated land in question is contaminated land and, if any of the substances have escaped from other land, the location of that other land;

(g) the enforcing authority's reasons for its decisions as to the things by way of remediation that the appropriate person is required to do, showing how any guidance issued by the National Assembly under section 78E(5) has been applied;

(h) where two or more persons are appropriate persons in relation to the contaminated land in question—

(i) that this is the case,

(ii) the name and address of each such person, and

(iii) the thing by way of remediation for which each such person bears responsibility;

(i) where two or more persons would, apart from section 78F(6), be appropriate persons in relation to any particular thing which is to be done by way of remediation, the enforcing authority's reasons for its determination as to whether any, and if so which, of them is to be treated as not being an appropriate person in relation to that thing, showing how any guidance issued by the National Assembly under section 78F(6) has been applied;

(j) where the remediation notice is required by section 78E(3) to state the proportion of the cost of a thing to be done by way of remediation which each of the appropriate persons in relation to that thing is liable to bear, the enforcing authority's reasons for the proportion which it has determined, showing how any guidance issued by the National Assembly under section 78F(7) has been applied;

(k) where known to the enforcing authority, the name and address of—

(i) the owner of the contaminated land in question, and

(ii) any person who appears to the enforcing authority to be in occupation of the whole or any part of the contaminated land in question;

(l) where known to the enforcing authority, the name and address of any person whose consent is required under section 78G(2) before any thing required by the remediation notice may be done;

(m) where the notice is to be served in reliance on section 78H(4), that it appears to the enforcing authority that the contaminated land in question is in such a condition, by reason of substances in, on or under the land, that there is imminent danger of serious harm or serious pollution of controlled waters being caused;

(n) that a person on whom a remediation notice is served may be guilty of an offence for failure, without reasonable excuse, to comply with any of the requirements of the notice;

(o) the penalties which may be applied on conviction for such an offence;

(p) the name and address of the enforcing authority serving the notice; and

(q) the date of the notice.

(2) A remediation notice must explain—

(a) that a person on whom it is served has a right of appeal against the notice under section 78L;

(b) how, within what period and on what grounds an appeal may be made; and

(c) that, where an appeal is duly made, a notice is suspended until the final determination or abandonment of the appeal.

Service of copies of remediation notices E+W

5.—(1) Subject to paragraph (2), the enforcing authority must, at the same time as it serves a remediation notice, send a copy of it to each of the following persons, not being a person on whom the notice is to be served—

(a) any person who was required to be consulted under section 78G(3) before service of the notice;

(b) any person who was required to be consulted under section 78H(1) before service of the notice;

(c) where the local authority is the enforcing authority, [F11 the Natural Resources Body for Wales]; and

(d) where [F11 the Natural Resources Body for Wales] is the enforcing authority, the local authority in whose area the contaminated land in question is situated.

(2) Where it appears to the enforcing authority that the contaminated land in question is in such a condition by reason of substances in, on or under it that there is imminent danger of serious harm or serious pollution of controlled waters being caused, the enforcing authority must send any copies of the notice pursuant to paragraph (1) as soon as practicable after service of the notice.

Textual Amendments

F11 Words in reg. 5(1) substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 5 para. 40 (with Sch. 7)

Compensation for rights of entry etc E+W

6.  Schedule 2 to these Regulations specifies the—

(a) period within which a person who grants, or joins in granting, any rights pursuant to section 78G(2) may apply for compensation for the grant of those rights;

(b) manner in which, and the person to whom, such an application may be made; and

(c) manner in which the amount of such compensation will be determined,

and makes further provision relating to such compensation.

Grounds of appeal against a remediation notice E+W

7.—(1) The grounds of appeal against a remediation notice under section 78L(1) are any of the following—

(a) that, in determining whether any land to which the notice relates appears to be contaminated land, the local authority—

(i) failed to act in accordance with guidance issued by the National Assembly under section 78A(2), (5) or (6), or

(ii) whether by reason of such a failure or otherwise, unreasonably identified all or any of the land to which the notice relates as contaminated land;

(b) that, in determining a requirement of the notice, the enforcing authority—

(i) failed to have regard to guidance issued by the National Assembly under section 78E(5), or

(ii) whether by reason of such a failure or otherwise, unreasonably required the appellant to do any thing by way of remediation;

(c) that the enforcing authority unreasonably determined the appellant to be the appropriate person who is to bear responsibility for any thing required by the notice to be done by way of remediation;

(d) subject to paragraph (2), that the enforcing authority unreasonably failed to determine that some person in addition to the appellant is an appropriate person in relation to any thing required by the notice to be done by way of remediation;

(e) that, in respect of any thing required by the notice to be done by way of remediation, the enforcing authority failed to act in accordance with guidance issued by the National Assembly under section 78F(6);

(f) that, where two or more persons are appropriate persons in relation to any thing required by the notice to be done by way of remediation, the enforcing authority—

(i) failed to determine the proportion of the cost stated in the notice to be the liability of the appellant in accordance with guidance issued by the National Assembly under section 78F(7), or

(ii) whether, by reason of such a failure or otherwise, unreasonably determined the proportion of the cost that the appellant is to bear;

(g) that service of the notice contravened a provision of section 78H(1) or (3) (restrictions and prohibitions on serving remediation notices) other than in circumstances where section 78H(4) applies;

(h) that, where the notice was served in reliance on section 78H(4) in circumstances where section 78H(1) or (3) has not been complied with, the enforcing authority could not reasonably have taken the view that the contaminated land in question was in such a condition by reason of substances in, on or under the land, that there was imminent danger of serious harm or serious pollution of controlled waters being caused;

(i) that the enforcing authority has unreasonably failed to be satisfied, in accordance with section 78H(5)(b), that appropriate things are being, or will be, done by way of remediation without service of a notice;

(j) that any thing required by the notice to be done by way of remediation was required in contravention of a provision of section 78J (restrictions on liability relating to the pollution of controlled waters);

(k) that any thing required by the notice to be done by way of remediation was required in contravention of a provision of section 78K (liability in respect of contaminating substances which escape to other land);

(l) that the enforcing authority itself has power, in a case falling within section 78N(3)(b), to do what is appropriate by way of remediation;

(m) that the enforcing authority itself has power, in a case falling within section 78N(3)(e), to do what is appropriate by way of remediation;

(n) that the enforcing authority, in considering for the purposes of section 78N(3)(e) whether it would seek to recover all or a portion of the cost incurred by it in doing some particular thing by way of remediation—

(i) failed to have regard to any hardship which the recovery may cause to the person from whom the cost is recoverable or to any guidance issued by the National Assembly for the purposes of section 78P(2), or

(ii) whether by reason of such a failure or otherwise, unreasonably determined that it would decide to seek to recover all of the cost;

(o) that, in determining a requirement of the notice, the enforcing authority failed to have regard to guidance issued by [F12 the Natural Resources Body for Wales] under section 78V(1);

(p) that a period specified in the notice within which the appellant is required to do any thing is not reasonably sufficient for the purpose;

(q) that the notice provides for a person acting in a relevant capacity to be personally liable to bear the whole or part of the cost of doing any thing by way of remediation, contrary to the provisions of section 78X(3)(a);

(r) that service of the notice contravened a provision of section 78YB M14 (which makes provision regarding the interaction of Part 2A of the 1990 Act with other enactments) and in a case where—

(i) subsection (1) of that section is relied on, that it ought to have appeared to the enforcing authority that the powers of the Environment Agency under section 27 M15 might be exercised,

(ii) subsection (3) of that section is relied on, that it ought to have appeared to the enforcing authority that the powers of a waste regulation authority or waste collection authority under section 59 M16 might be exercised; or

(s) that there has been some informality, defect or error in, or in connection with, the notice, in respect of which there is no right of appeal under the grounds set out in sub-paragraphs (a) to (r).

(2) A person may only appeal on the ground specified in paragraph (1)(d) in a case where—

(a) the enforcing authority has determined that the person is an appropriate person by virtue of section 78F(2) and that person claims to have found some other person who is an appropriate person by virtue of that sub-section;

(b) the notice is served on that person as the owner or occupier for the time being of the contaminated land in question and that person claims to have found some other person who is an appropriate person by virtue of that sub-section; or

(c) the notice is served on that person as the owner or occupier for the time being of the contaminated land in question and that person claims that some other person is also an owner or occupier for the time being of the whole or part of that land.

(3) If and insofar as an appeal against a remediation notice is based on the ground of some informality, defect or error in, or in connection with, the notice, the National Assembly must dismiss the appeal if it is satisfied that the informality, defect or error was not a material one.

Textual Amendments

F12 Words in reg. 7(1)(o) substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 5 para. 40 (with Sch. 7)

Marginal Citations

M14 Section 78YB was amended, in relation to England and Wales, by S.I. 2000/1973, regulation 39 and Schedule 10, Part I, paragraphs 2 and 6.

M15 Section 27 was amended by the Environment Act 1995 (c. 25), section 120 and Schedule 22, paragraph 60.

M16 Section 59 was amended, in relation to England and Wales, by the Clean Neighbourhoods and Environment Act 2005 (c. 16), section 43(2).

Appeals to the National Assembly E+W

8.—(1) An appeal to the National Assembly against a remediation notice must be made to the National Assembly by a notice (“notice of appeal”) which must state—

(a) the name and address of the appellant;

(b) the grounds on which the appeal is made; and

(c) whether the appellant wishes the appeal to be in the form of a hearing or to be disposed of on the basis of written representations.

(2) The appellant must, at the same time as serving a notice of appeal on the National Assembly, serve—

(a) a copy of it on—

(i) the enforcing authority,

(ii) any person named in the remediation notice as an appropriate person,

(iii) any person named in the notice of appeal as an appropriate person, and

(iv) any person named in the remediation notice as the owner or occupier of the whole or any part of the land to which the notice relates;

(b) on the National Assembly a statement of the names and addresses of any persons falling within sub-paragraph (a)(ii), (iii) or (iv); and

(c) a copy of the remediation notice to which the appeal relates on the National Assembly and on any person named in the notice of appeal as an appropriate person who is not so named in the remediation notice.

(3) If the appellant wishes to abandon an appeal, the appellant must do so by notifying the National Assembly in writing; and the appeal will then be treated as abandoned as from the date on which the National Assembly receives that notification.

(4) The National Assembly may refuse to permit an appellant to abandon an appeal against a remediation notice where the notification by the appellant in accordance with paragraph (3) is received by the National Assembly at any time after the National Assembly has notified the appellant in accordance with regulation 11(1) of a proposed modification of that notice.

(5) Where an appeal is abandoned, the National Assembly must give notice of the abandonment to any person on whom the appellant was required to serve a copy of the notice of appeal.

Hearings and local inquiries E+W

9.—(1) Before determining an appeal, the National Assembly may, if it thinks fit, cause—

(a) the appeal to take, or continue in, the form of a hearing (which may, if the person hearing the appeal so decides, be held, or held to any extent, in private); or

(b) a local inquiry to be held.

(2) Before determining an appeal, the National Assembly must act as mentioned in paragraph (1)(a) or (b) if a request is made by either the appellant or the enforcing authority to be heard with respect to the appeal.

(3) The persons entitled to be heard at a hearing are—

(a) the appellant;

(b) the enforcing authority; and

(c) any person (other than the enforcing authority) on whom the appellant was required to serve a copy of the notice of appeal.

(4) Nothing in paragraph (3) prevents the person appointed to conduct the hearing of the appeal from permitting any other person to be heard at the hearing; and such permission must not be unreasonably withheld.

(5) After the conclusion of a hearing, the person appointed to conduct the hearing must, unless that person has been appointed under section 114(1)(a) of the Environment Act 1995 M17 (power of National Assembly to delegate its functions of determining, or to refer matters involved in, appeals) to determine the appeal, make a report in writing to the National Assembly, which must include the appointed person's conclusions and recommendations (or reasons for not making any recommendations).

Marginal Citations

M17 1995 c. 25.

Notification of National Assembly's decision on an appeal E+W

10.—(1) The National Assembly must notify the appellant in writing of its decision on an appeal and provide the appellant with a copy of any report mentioned in regulation 9(5).

(2) The National Assembly must, at the same time as it notifies the appellant, send a copy of the documents mentioned in paragraph (1) to the enforcing authority and to any other person on whom the appellant was required to serve a copy of the notice of appeal.

Modification of a remediation notice E+W

11.—(1) Before modifying a remediation notice under section 78L(2)(b) (appeals against remediation notices) in any respect which would be less favourable to the appellant or any other person on whom the notice was served, the National Assembly must—

(a) notify the appellant, and any persons on whom the appellant was required to serve a copy of the notice of appeal, of the proposed modification;

(b) permit any persons so notified to make representations in relation to the proposed modification; and

(c) permit the appellant or any other person on whom the remediation notice was served to be heard if any such person so requests.

(2) Where, in accordance with paragraph (1), the appellant or any other person is heard, the enforcing authority is also entitled to be heard.

[F13 (3) This regulation applies only in relation to appeals made in accordance with regulation 8(1) prior to 6 April 2012.]

Textual Amendments

F13 Reg. 11(3) inserted (6.4.2012) by The Contaminated Land (Wales) (Amendment) Regulations 2012 (S.I. 2012/283), regs. 1(1), 2(3)

Suspension of a remediation notice E+W

12.—(1) Where an appeal is duly made against a remediation notice, the notice has no effect pending the final determination or abandonment of the appeal.

(2) An appeal against a remediation notice is duly made for the purposes of this regulation if it is made within the period specified in section 78L(1) and the requirements of regulation 8(1) and (2) have been complied with.

Registers E+W

13.—(1) For the purpose of section 78R(1) (registers), the particulars that must be contained in a register maintained under that subsection are specified in Schedule 3.

(2) The following descriptions of information are prescribed for the purposes of section 78R(2) as information to be contained in notifications for the purposes of section 78R(1)(h) and (j)—

(a) the location and extent of the land in sufficient detail to enable it to be identified;

(b) the name and address of the person who it is claimed has done each of the things by way of remediation;

(c) a description of any thing which it is claimed has been done by way of remediation; and

(d) the period within which it is claimed each such thing was done.

(3) The following places are prescribed for the purposes of section 78R(8) as places at which any registers or facilities for obtaining copies must be available or afforded to the public in pursuance of paragraph (a) or (b) of that subsection—

(a) where the enforcing authority is the local authority, its principal office; and

(b) where the enforcing authority is [F14 the Natural Resources Body for Wales], its office for the area in which the contaminated land in question is situated.

Textual Amendments

F14 Words in reg. 13(3)(b) substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 5 para. 40 (with Sch. 7)

Revocation E+W

14.  The Contaminated Land (Wales) Regulations 2001 M18 are revoked.

Marginal Citations

M18 S.I. 2001/2197 (W.157).

M19 Signed on behalf of the National Assembly for Wales under section 66(1) of the Government of Wales Act 1998

D. Elis-Thomas

The Presiding Officer of the National Assembly

Marginal Citations

M19 1998 c. 38.

Regulation 3(c)

SCHEDULE 1 E+W SPECIAL SITES

1.  The families and groups of substances relevant for the purposes of regulation 3(c)(i) are— E+W

(a) organohalogen compounds and substances which may form such compounds in the aquatic environment;

(b) organophosphorus compounds;

(c) organotin compounds;

(d) substances which possess carcinogenic, mutagenic or teratogenic properties in or via the aquatic environment;

(e) mercury and its compounds;

(f) cadmium and its compounds;

(g) mineral oil and other hydrocarbons;

(h) cyanides.

2.  The formations of rocks relevant for the purposes of regulation 3(c)(ii) are— E+W

(a) Pleistocene Norwich Crag;

(b) Upper Cretaceous Chalk;

(c) Lower Cretaceous Sandstones;

(d) Upper Jurassic Corallian;

(e) Middle Jurassic Limestones;

(f) Lower Jurassic Cotteswold Sands;

(g) Permo-Triassic Sherwood Sandstone Group;

(h) Upper Permian Magnesian Limestone;

(i) Lower Permian Penrith Sandstone;

(j) Lower Permian Collyhurst Sandstone;

(k) Lower Permian Basal Breccias, Conglomerates and Sandstones;

(l) Lower Carboniferous Limestones.

Regulation 6

SCHEDULE 2 E+W COMPENSATION FOR RIGHTS OF ENTRY ETC

Interpretation E+W

1.  In this Schedule—

“the 1961 Act” (“Deddf 1961”) means the Land Compensation Act 1961 M20 ;

“grantor” (“grantwr”) means a person who has granted, or joined in the granting of, any rights pursuant to section 78G(2); and

“relevant interest” (“buddiant perthnasol”) means an interest in land out of which rights have been granted pursuant to section 78G(2).

Marginal Citations

M20 1961 c. 33.

Period for making an application E+W

2.  An application for compensation must be made within the period beginning with the date of the grant of the rights in respect of which compensation is claimed and ending on the expiry of whichever is the latest of the following periods—

(a) twelve months after the date of the grant of those rights;

(b) where an appeal is made against a remediation notice in respect of which the rights in question have been granted, and the notice is of no effect by virtue of regulation 12, twelve months after the date of the final determination or abandonment of the appeal; or

(c) six months after the date on which the rights were first exercised.

Manner of making an application E+W

3.—(1) An application must be made in writing and delivered at, or sent by pre-paid post to, the last known address for correspondence of the appropriate person to whom the rights were granted.

(2) The application must contain, or be accompanied by,—

(a) a copy of the grant of rights in respect of which the grantor is applying for compensation, and of any plans attached to that grant;

(b) a description of the exact nature of any interest in land in respect of which compensation is applied for; and

(c) a statement of the amount of compensation applied for, distinguishing the amounts applied for under each of sub-paragraphs (a) to (e) of paragraph 4, and showing how the amount applied for under each sub-paragraph has been calculated.

Loss and damage for which compensation payable E+W

4.—(1) Subject to paragraph 5(3) and (5)(b), compensation is payable under section 78G(5) for loss and damage of the following descriptions—

(a) depreciation in the value of any relevant interest to which the grantor is entitled which results from the grant of the rights;

(b) depreciation in the value of any other interest in land to which the grantor is entitled which results from the exercise of the rights;

(c) loss or damage, in relation to any relevant interest to which the grantor is entitled, which—

(i) is attributable to the grant of the rights or the exercise of them,

(ii) does not consist of depreciation in the value of that interest, and

(iii) is loss or damage of a kind in respect of which compensation for disturbance, or any other matter not directly based on the value of that interest, is payable on a compulsory acquisition;

(d) damage to, or injurious affection of, any interest in land to which the grantor is entitled which is not a relevant interest and which results from the grant of the rights or the exercise of them; and

(e) loss in respect of work carried out by, or on behalf of, the grantor which is rendered abortive by the grant of the rights or the exercise of them.

Basis on which compensation assessed E+W

5.—(1) The following provisions have effect for the purpose of assessing the amount to be paid by way of compensation under section 78G(5).

(2) The rules set out in section 5 M21 of the 1961 Act (rules for assessing compensation) have effect, so far as applicable and subject to any necessary modifications, for the purpose of assessing any such compensation as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.

(3) No account is to be taken of any enhancement of the value of any interest in land, by reason of any building erected, work done or improvement or alteration made on any land in which the grantor is, or was at the time of erection, doing or making, directly or indirectly concerned, if the [F15 Upper Tribunal] is satisfied that the erection of the building, the doing of the work, the making of the improvement or the alteration was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

(4) In calculating the amount of any loss under paragraph 4(e), expenditure incurred in the preparation of plans or on other similar preparatory matters will be taken into account.

(5) Where the interest in respect of which compensation is to be assessed is subject to a mortgage—

(a) the compensation will be assessed as if the interest were not subject to the mortgage; and

(b) no compensation is payable in respect of the interest of the mortgagee (as distinct from the interest which is subject to the mortgage).

(6) Compensation under section 78G(5) must include an amount equal to the grantor's reasonable valuation and legal expenses.

Textual Amendments

F15 Words in Sch. 2 para. 5(3) substituted (6.4.2012) by The Contaminated Land (Wales) (Amendment) Regulations 2012 (S.I. 2012/283), regs. 1(1), 2(4)(a)

Marginal Citations

M21 Section 5 was amended by the Planning and Compensation Act 1991 (c. 43), sections 70 and 84, Schedule 15, paragraph 1 and Schedule 19, Part 3.

Payment of compensation and determination of disputes E+W

6.—(1) Compensation payable under section 78G(5) in respect of an interest which is subject to a mortgage must be paid to the mortgagee or, if there is more than one mortgagee, to the first mortgagee and must, in either case, be applied as if it were proceeds of sale.

(2) Amounts of compensation determined under this Schedule are payable—

(a) where the appropriate person and the grantor or mortgagee agree that a single payment is to be made on a specified date, on that date;

(b) where the appropriate person and the grantor or mortgagee agree that payment is to be made in instalments on different dates, on the date agreed as regards each instalment; and

(c) in any other case, subject to any direction of the [F16 Upper Tribunal] or the court, as soon as reasonably practicable after the amount of the compensation has been finally determined.

(3) Any question as to the application of paragraph 5(3) or of disputed compensation must be referred to, and determined by, the [F17 Upper Tribunal] .

[F18 (4) In relation to the determination of any such question, section 4 of the 1961 Act (costs) applies as if—

(a) the reference to section 1 of that Act were a reference to sub-paragraph (3) of this paragraph;

(b) references to the acquiring authority were references to the appropriate person; and

(c) references to the claimant were references to the grantor.]

Textual Amendments

F16 Words in Sch. 2 para. 6(2)(c) substituted (6.4.2012) by The Contaminated Land (Wales) (Amendment) Regulations 2012 (S.I. 2012/283), regs. 1(1), 2(4)(b)

F17 Words in Sch. 2 para. 6(3) substituted (6.4.2012) by The Contaminated Land (Wales) (Amendment) Regulations 2012 (S.I. 2012/283), regs. 1(1), 2(4)(b)

F18 Sch. 2 para. 6(4) substituted (6.4.2012) by The Contaminated Land (Wales) (Amendment) Regulations 2012 (S.I. 2012/283), regs. 1(1), 2(4)(c)

Regulation 13(1)

SCHEDULE 3 E+W PARTICULARS PRESCRIBED FOR THE PURPOSE OF SECTION 78R(1)

Remediation notices E+W

1.—(1) In relation to a remediation notice served by the enforcing authority—

(a) the name and address of the person on whom the notice is served;

(b) the location and extent of the contaminated land to which the notice relates in sufficient detail to enable it to be identified, whether by reference to a plan or otherwise;

(c) the significant harm, harm or pollution of controlled waters by reason of which the contaminated land in question is contaminated land;

(d) the substances by reason of which the contaminated land in question is contaminated land and, if any of the substances have escaped from other land, the location of that other land;

(e) the current use of the contaminated land in question;

(f) what each appropriate person is to do by way of remediation and the periods within which they are required to do each of the things; and

(g) the date of the notice.

Appeals against remediation notices E+W

2.  Any appeal against a remediation notice served by the enforcing authority.

3.  Any decision on such an appeal. E+W

Remediation declarations E+W

4.  Any remediation declaration prepared and published by the enforcing authority under section 78H(6).

5.  In relation to any such remediation declaration— E+W

(a) the location and extent of the contaminated land in question in sufficient detail to enable it to be identified, whether by reference to a plan or otherwise; and

(b) the matters referred to in sub-paragraphs (c), (d) and (e) of paragraph 1.

Remediation statements E+W

6.  Any remediation statement prepared and published by the responsible person under section 78H(7) or by the enforcing authority under section 78H(9).

7.  In relation to any such remediation statement— E+W

(a) the location and extent of the contaminated land in question in sufficient detail to enable it to be identified, whether by reference to a plan or otherwise; and

(b) the matters referred to in sub-paragraphs (c), (d) and (e) of paragraph 1.

Appeals against charging notices E+W

8.  Any appeal under section 78P(8) against a charging notice served by the enforcing authority.

9.  Any decision on such an appeal. E+W

Designation of special sites E+W

10.—(1) In the case of [F19 the Natural Resources Body for Wales], as respects any land in relation to which it is the enforcing authority, and in the case of a local authority, as respects any land in its area—

(a) any notice given by a local authority under section 78C(1)(b) or (5)(a), or by the National Assembly under section 78D(4)(b), which, by virtue of section 78C(7) or 78D(6) respectively, has effect as the designation of any land as a special site;

(b) the provisions of regulation 2 or 3 by virtue of which the land is required to be designated as a special site;

(c) any notice given by [F19 the Natural Resources Body for Wales] under section 78Q(1)(a) of its decision to adopt a remediation notice; and

(d) any notice given by, or to, the enforcing authority under section 78Q(4) terminating the designation of any land as a special site.

Textual Amendments

F19 Words in Sch. 3 para. 10(1) substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 5 para. 40 (with Sch. 7)

Notification of claimed remediation E+W

11.  Any notification given to the enforcing authority for the purposes of section 78R(1)(h) or (j).

Convictions for offences under section 78M E+W

12.  Any conviction of a person for any offence under section 78M in relation to a remediation notice served by the enforcing authority, including the name of the offender, the date of conviction, the penalty imposed and the name of the Court.

Guidance issued under section 78V(1) E+W

13.  In the case of [F20 the Natural Resources Body for Wales], the date of any guidance issued by it under section 78V(1) and, in the case of a local authority, the date of any guidance issued by the Agency to it under that subsection.

Textual Amendments

F20 Words in Sch. 3 para. 13 substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 5 para. 40 (with Sch. 7)

Other environmental controls E+W

14.  Where the enforcing authority is precluded by virtue of section 78YB(1) or 78YB(2B) M22 from serving a remediation notice—

(a) the location and extent of the contaminated land in question in sufficient detail to enable it to be identified, whether by reference to a plan or otherwise;

(b) the matters referred to in sub-paragraphs (c), (d) and (e) of paragraph 1; and

(c) any steps of which the authority has knowledge, carried out under section 27 M23 or by means of enforcement action (within the meaning of section 78YB(2C) M24 ), towards remedying any significant harm, harm or pollution of controlled waters by reason of which the land in question is contaminated land.

Marginal Citations

M22 Sub-section (2B) of section 78YB was inserted, in relation to England and Wales, by S.I. 2000/1973, regulation 39 and Schedule 10, Part 1, paragraphs 2 and 6.

M23 Section 27 was amended by the Environment Act 1995 (c. 25), section 120 and Schedule 22, paragraph 60.

M24 Sub-section (2C) of section 78YB was inserted, in relation to England and Wales, by S.I. 2000/1973, regulation 39 and Schedule 10, Part 1, paragraphs 2 and 6.

15.  Where the enforcing authority is precluded by virtue of section 78YB(3) from serving a remediation notice in respect of land which is contaminated land by reason of the deposit of controlled waste or any consequences of its deposit— E+W

(a) the location and extent of the contaminated land in question in sufficient detail to enable it to be identified, whether by reference to a plan or otherwise;

(b) the matters referred to in sub-paragraphs (c), (d) and (e) of paragraph 1; and

(c) any steps of which the enforcing authority has knowledge, carried out under section 59 M25 , in relation to that waste or the consequences of its deposit; and in a case where a waste collection authority (within the meaning of section 30(3) M26 ) took those steps or required the steps to be taken, the name of that authority.

Marginal Citations

M25 Section 59 was amended, in relation to England and Wales, by the Clean Neighbourhoods and Environment Act 2005 (c. 16), section 43(2).

M26 Subsection (3) of section 30 was amended by the Local Government (Wales) Act 1994 (c. 19), sections 22(3) and 66(8) and Schedule 9, paragraph 17(3) and Schedule 18.

16.  Where, as a result of a consent given under [F21 an environmental permit granted under regulation 13 of [F22 the Environmental Permitting (England and Wales) Regulations 2016]], the enforcing authority is precluded by virtue of section 78YB(4) from specifying in a remediation notice any particular thing by way of remediation which it would otherwise have specified in such a notice— E+W

(a) the [F23 environmental permit];

(b) the location and extent of the contaminated land in question in sufficient detail to enable it to be identified, whether by reference to a plan or otherwise; and

(c) the matters referred to in sub-paragraphs (c), (d) and (e) of paragraph 1.

Textual Amendments

F21 Words in Sch. 3 para. 16 substituted (6.4.2010 immediately after S.I. 2009/3381 comes into force) by The Environmental Permitting (England and Wales) Regulations 2010 (S.I. 2010/675), reg. 1(1), Sch. 26 para. 33(3)(a) (with reg. 1(2))

F22 Words in Sch. 3 para. 16 substituted (1.1.2017) by The Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154), reg. 1(1), Sch. 29 para. 24(3)(a) (with regs. 1(3), 77-79, Sch. 4)

F23 Words in Sch. 3 para. 16(a) substituted (6.4.2010 immediately after S.I. 2009/3381 comes into force) by The Environmental Permitting (England and Wales) Regulations 2010 (S.I. 2010/675), reg. 1(1), Sch. 26 para. 33(3)(b) (with reg. 1(2))

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which apply in relation to Wales, replace the Contaminated Land (Wales) Regulations 2001 (S.I. 2001/2197 (W.157)) (“the 2001 Regulations”) and, in addition to making similar provision to that made in the 2001 Regulations, make, in relation to Wales, provision equivalent to that made in relation to England in paragraph 50 of Schedule 10 to the Pollution Prevention and Control (England and Wales) Regulations 2000 (S.I. 2000/1973) and sets out further provisions relating to the identification and remediation of contaminated land under Part 2A of the Environmental Protection Act 1990 (“the 1990 Act”).

These Regulations make provision for an additional description of contaminated land that is required to be designated as a special site : that is land which is contaminated land as a result of radioactive substances in, on or under that land.

These Regulations also remove provisions relating to appeals against remediation notices to a Magistrates' court, as a result of amendments to section 78L of the 1990 Act made by section 104 of the Clean Neighbourhoods and Environment Act 2005 (c. 16).

Regulations 2 and 3, and Schedule 1, identify those categories of site (known as “special sites”) for which the Environment Agency is to be the enforcing authority. Local authorities are the enforcing authority in relation to any other type of site.

Regulations 4 and 5 provide for the content and service of copies of “remediation notices” : that is notices served by a local authority or the Environment Agency specifying what is to be done by way of remediation and the time within which any action must be taken.

Regulation 6, and Schedule 2, make provision in relation to the compensation which is to be paid in accordance with section 78G(5) of the 1990 Act to a person who grants, or joins in granting, rights of entry etc. required to enable a person to comply with a remediation notice.

Regulations 7 to 12 make provision with respect to appeals against remediation notices, including the grounds of appeal and the procedure to be followed.

Regulation 13, and Schedule 3, prescribe the particulars of matters which are required under section 78R of the 1990 Act to be placed on a register maintained by local authorities or, in the case of special sites, by the Environment Agency.

Regulation 14 revokes the 2001 Regulations.