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) , 78L(4) and (5) and 78R(1), (2) and (8) of the Environmental Protection Act 1990 (“the 1990 Act”) and which are now exercisable in relation to Wales by the National Assembly , 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”) , makes the following Regulations:

Title, commencement, application and interpretation

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• (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

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• (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 ... under a permit, where the activity does not solely consist of things being done which are required by way of remediation;

• (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 (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 (arrangements for development etc of nuclear devices);

• (j) land to which section 30 of the Armed Forces Act 1996 (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).

• (4) In paragraph (1)(e), “Part A(1) installation” 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.

• (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 .

• (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)—

• “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 ;

• “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 , disregarding sub-section (2) of that section.

Pollution of controlled waters

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• (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 (water supply);

• (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 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 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.

• (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.

Content of remediation notices

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• (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

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• (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, the Natural Resources Body for Wales; and

• (d) where 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.

Compensation for rights of entry etc

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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

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• (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);