Abstract
Eight years have passed since the Contaminated Land Capital Projects (CLCP) funding was abolished in Wales; this was the main source of public sector funding for contaminated land identification and remediation. Yet, despite the CLCP’s abolition in 2010, the Welsh Government announced in October 2018 that it would assist in funding a significant proportion (some 60%) of the remediation of a residential site in Anglesey. Research into the site’s remediation has showed that this public sector engagement has been made possible by EU funding. However, the replenishment of the Welsh Government’s funds is not wholly uplifting. In fact, the situation gives rise to a deep sense of foreboding. It ultimately leads to questions as to what will happen to land remediation following Brexit, when European funding is no longer available to supplement the public sector’s purse.
Keywords
The enforcement of environmental laws in the UK has been impacted by the economic climate of recent years. 2 Political agendas have been promulgated by the Coalition and later Conservative Governments which have aimed to bolster short-term economic growth at the expense of environmental protection. 3 This opinion is concerned specifically with the impact of austerity – and Brexit – on Part IIA of the Environmental Protection Act (EPA) 1990. The Craig Y Don contaminated site in North Wales is used as a case study to show how the EU is still assisting the public sector in contaminated land projects. Of great concern is the fact that once EU support has gone, Part IIA’s objectives may not be fulfilled and the environment and human health will be put at risk, because ultimately fewer clean-up operations may take place if Brexit results in less public funding being available for contaminated land identification and remediation.
The amount of government funding that is available for Part IIA’s ‘enforcing authorities’ 4 to conduct contaminated land investigations and undertake remediation works has been cut significantly over the last few years. 5 Not only do the enforcing authorities have limited funding and technical expertise to fulfil their Part IIA statutory duties, 6 but this is coupled with the fact that the nature of Part IIA sites – being concerned with historic pollution events – means that the person liable to bear the responsibility for the remediation is often unidentifiable. 7 Thus, this may be problematic as vulnerable ‘receptors’ 8 are now at greater risk. An example of the public sector cuts for contaminated land investigation and remediation is the abolition of the Contaminated Land Capital Projects (CLCP). 9 Succinctly, given the desperate need for additional funding for contaminated land inspection by Part IIA’s enforcing authorities, the CLCP Programme was designed to ensure that the contaminated land regime’s statutory objectives were adequately fulfilled. 10 Despite its widespread use, the CLCP ended in Wales in 2010 11 and closed in England in 2013 12 with the provision of a nominal, contingency fund of £5,000 per annum. 13
Thus, given the widespread cuts, it was surprising to see the recent announcement that the Welsh Government is to provide 60 per cent of the funding towards the remediation works for a contaminated site in Amlwch, Anglesey, North Wales. 14 The primary reason, it seems, for the Welsh Government’s desire to assist in funding this remediation is to ensure that no ‘hardship’ is suffered by the private residents of the site in question. This relates to a particular statutory provision that is held within Part IIA itself. This is explained below.
In Anglesey, North Wales, a residential site (‘Craig Y Don’) has been determined as contaminated land pursuant to Part IIA. The site’s history shows multiple uses. 15 Its first industrial use came in 1786, when it was acquisitioned for smelting copper. 16 In the nineteenth century, the land was used by a chemical fertiliser company. 17 Since the 1950s, the site has been a residential area consisting of 112 residential properties. 18 Following an inspection, contaminants of arsenic and lead have been found on the site and this has affected several of the properties. 19
As with many Part IIA sites, the original polluters of the site in question are no longer determinable to bear liability. An analysis of the triggers of liability under Part IIA shows that the residents of Craig Y Don are potentially liable for the site’s remediation. 20 Pursuant to Part IIA, the current ‘owner(s) or occupier(s)’ 21 are held as the appropriate person(s) where the persons who ‘caused or knowingly permitted’ 22 the contamination cannot be found. 23 The significance of the Craig Y Don site, then, is in the way that the remediation of the contaminated site is to be funded. Instead of requiring the residential owners to cover the clean-up costs, remediation works are to be paid for by the Welsh Government and Anglesey County Council. 24 This exemption may be understood by way of Part IIA’s ‘hardship’ clause. Section 78P(2) of the EPA 1990 states that enforcing authorities should consider ‘any hardship which the recovery may cause to the person from whom the cost is recoverable’. 25 This clause exists due to the very significant costs associated with land remediation under Part IIA. 26 The fact that an innocent, residential, owner or occupier may incur liability provides evidence of why public sector financial intervention is crucial for achieving Part IIA’s regulatory objectives. However, there may be good reasons why such owners may be made to pay for remediation works: for instance, such an approach is likely to increase windfall values for the public sector.
In 2017, a programme of funding was established to further green infrastructure investment in Wales: the Green Infrastructure Capital Grant (GICG). 27 The programme is funded from a tripartite of sources: (i) the Heritage Lottery Fund (HLF); (ii) other, wider providers; and (iii) EU LIFE. 28 The programme is set to run until 2021. 29 On the one hand, it is uplifting that the Welsh Government has managed to procure additional funding through the GICG. On the other hand, the GICG scheme is matched funding, ironically, with an EU scheme called EU LIFE. 30 This funding will soon come to an end. Whether any similar provision will be available in the future is largely uncertain and there is a protracted concern that future cuts following Brexit will create significant problems for the UK’s ability to remediate contaminated land. Indeed, it is an almost certainty that greater pressure will be placed on central and local government.
The site at Craig Y Don represents a useful case study for analysing the importance of public sector economic incentives for contaminated land investigation and remediation under Part IIA. The fact that the Part IIA regime is being supported by central government following the abolition of the CLCP eight years ago is encouraging. In another vein, however, the GICG is being matched by EU LIFE, which is ominous. There is the looming problem that, following Brexit, it is likely that there will be insufficient public sector economic incentives to ensure that contaminated land is properly investigated and remediated, not just in Wales but throughout the UK. This, ultimately, risks endangering the environment and human health.
To summarise, for a regime heavily reliant on public sector participation and where many of the original polluters are unascertainable, the solution is not to make more owners and occupiers liable for contaminated land remediation. In any case, the hardship clause in Part IIA acts directly against this reasoning for residential owners, as the Craig Y Don case shows. To avoid the risks following Brexit, the government must ensure that funding is made available to the public sector for contaminated land remediation, particularly at local level where the enforcing authorities must fulfil their statutory duties.