Many areas of land in Northern Ireland have been contaminated by past industrial and other human activities, including former factories, mines, storage depots, steelworks, refineries and landfills. Land at these sites could be contaminated by harmful substances such as oils and tars, heavy metals, asbestos and chemicals.
Land contamination may also be caused by current operations or accidental releases of substances to the environment.
Understanding the condition of your land and preventing new land contamination are important. If you own land that is affected by contamination, or cause or allow land to be contaminated, you could be responsible for any harm or pollution it causes as well as the cost of cleaning it up.
This guide explains how you can prevent land contamination and how you could be responsible for cleaning up land contamination.
Who is responsible for contaminated land?
Land may be contaminated by accidents or spills, leaking underground storage tanks, past industrial uses and waste disposal.
You could be responsible for land contamination, for example, if you:
- develop land that is contaminated
- cause environmental damage to land
- cause contamination in breach of your pollution prevention and control (PPC) permit
Common types of land contamination
Land contamination is a general term that describes land that is contaminated, for example, by substances such as:
- heavy metals, eg arsenic, cadmium and lead
- oils and tars
- chemical substances and preparations, eg solvents
- radioactive substances
Land development responsibilities
You could be required to clean up land contamination before you are allowed to carry out development.
You will need to show the Planning Service that you have assessed the contamination risks to health and the environment when you submit your planning application. If contamination is identified at the site, you must submit and agree a remediation strategy with the Planning Service that will make the site suitable for the proposed use. You will have to carry out the remediation as a condition of your planning approval.
Environmental damage responsibilities
You could be responsible for land contamination if it is classed as environmental damage and was caused on or after 24 July 2009.
Land contamination may be classed as environmental damage if it creates a significant risk of harm to human health, or has serious adverse effects on the water environment or the biodiversity of protected species or habitats. If your activities cause, or could cause, land contamination that is classed as environmental damage you will have to prevent or remediate (clean up) such damage.
For information on how the environmental liability regime applies to land, water, and protected species and habitats, see pollution incidents and environmental damage.
You may also have liabilities to clean up land contamination under other legislation - see responsibilities for land contamination.
You could also be responsible for land contamination if it is caused by you breaching your PPC permit - see environmental permits and licences - an overview.
How to prevent land contamination
If you have hazardous substances at your site, such as oil and chemicals, you must ensure that you don't cause land contamination or make any existing contamination worse.
Comply with your permit
You can prevent land contamination by following the terms of your pollution prevention and control permit or waste management licence if you have one - see environmental permits and licences - an overview.
You can also prevent land contamination by complying with any authorisations you have that aim to prevent water pollution - see preventing water pollution.
Manage your hazardous substances correctly
If your business uses hazardous substances, consider if they need to be stored on site, or if you could use less harmful alternatives. If no alternatives exist, try to reduce the amount that you use and only store the amount that you actually need at any time.
Keep materials that could harm the environment or human health separate from other materials. These materials include:
- radioactive substances
You should store hazardous substances in appropriate containers that have pollution prevention features, such as secondary containment systems. Label containers clearly - see storing oil and storing chemicals.
Handle any hazardous waste carefully - see dealing with hazardous waste.
Supervise refuelling and deliveries
You should supervise all refuelling operations and only refuel in a contained area away from waterways or surface water drains.
Supervise deliveries of materials to your site. Make sure you clearly label tanks with their contents and storage capacity, and provide a method for measuring the amount in the tank. This will reduce the risk of spills from overfilling.
Prepare a pollution incident response
You should ensure you have a pollution incident response procedure for dealing with spills. Make sure your staff are familiar with the procedure and know how to implement it.
You should report pollution incidents as soon as they happen by calling the NIEA Water Pollution Hotline on Tel 0800 80 70 60.
For more information see pollution incidents and environmental damage.
Inspect and maintain equipment regularly
You should regularly inspect and maintain all plant, pipework and other infrastructure, checking for damage, leaks and overflows. Service your equipment, storage containers and other infrastructure regularly to reduce the risk of leaks or spills. Keep maintenance and service records.
Train staff on safety procedures
Make sure that all your staff have the right level of training and that they fully understand their responsibility to prevent pollution. You should carry out a health and safety risk assessment to identify hazards and allow preventative measures to be put in place. Keep records of the training and risk assessments you carry out.
Make sure you have written procedures for dealing with pollution incidents and that everyone in the business understands them.
Buying land affected by contamination
It's estimated there are between 50,000 and 100,000 contaminated sites across the UK, covering up to 200,000 hectares of land. Up to 20 per cent of this land may need treatment to reduce the potential for harm to people or the environment.
The government has adopted a suitable-for-use approach to deal with the legacy of contaminated land. This ensures that:
- land is suitable for its current use by requiring remedial action to eliminate unacceptable risks
- land is suitable for any proposed new use by assessing the potential risks from contamination and requiring necessary remedial action
- remediation is limited to the work necessary to prevent unacceptable risks to human health or the environment from the site's current or proposed use
Government support for redevelopment of brownfield sites
The government actively encourages the redevelopment of previously used land - known as brownfield sites. Successful developments have included new industrial estates, housing, shopping centres, warehouses and logistics centres.
Depending on your plans for the land, you may be able to get government assistance with the cost of remedying the land including capital allowances, exemption from stamp duty and enhanced tax relief - read about tax breaks for cleaning up contaminated land.
Advice for buying contaminated land
If you plan to develop a brownfield site, you should contact the Northern Ireland Environment Agency (NIEA) to search the land use database. The database contains over 11,000 sites with records on previous land uses back to 1834. The NIEA will provide responses to site specific queries for free.
Before you buy a brownfield site, you should take professional advice, for example from an environmental or property consultant, or lawyer. You could have the soil and groundwater tested to establish whether it is contaminated and to estimate the cost of remedial work.
Contaminated Land: Applications in Real Environments (CL:AIRE) is a not-for-profit organisation which aims to stimulate the regeneration of contaminated land in the UK - find out about CL:AIRE support.
The Network for Industrially Contaminated Land in Europe (NICOLE) is a forum for the exchange of ideas about contaminated land arising from industrial and commercial activities - find out about NICOLE services.
You should make sure that you take out appropriate insurance - see insuring against the risk of land contamination.
Insuring against the risk of land contamination
If you own or occupy land which may be contaminated, you should ensure that you have the right level of insurance cover.
Public liability insurance
At the very least, you should have cover for the cost of third-party claims that could result from spills, accidents and other unforeseen circumstances. This is usually included in the public liability insurance that some businesses are obliged to have. However, if your business is at risk of causing contamination, pollution or environmental damage, you may need to take out additional cover.
Insurance for pollution is expensive and is usually only possible after you provide detailed information to the insurer. Insurance for historical contamination is not usually available.
For more information on which types of insurance are required by law and which are optional, see liability insurance.
Insure against business losses
It is also possible to insure against your own business losses as a result of contamination, spills and similar accidents. While this may be expensive, it can be worthwhile if your business is particularly at risk.
Bear in mind that insurance companies will not usually pay out on claims that result from negligence on your part. You should always be aware of the risks involved with your business and take appropriate precautions to prevent pollution incidents - see preventing land contamination.
Insurance when buying or selling land
If you are thinking about buying or selling a brownfield site for development, consider taking out insurance to limit your liability in case contamination or further contamination is found.
Before you buy or sell contaminated land, you may be able to agree an indemnity with the other party to transfer the liability to clean up the contamination. You should speak to a specialist lawyer or property consultant about indemnities.
Bonds - sometimes referred to as surety bonds - can be purchased by the seller to protect the purchaser if contamination (usually limited to above a certain value) is discovered. Bonds are much simpler to administer and are often cheaper than insurance.