Environmental damage: land contamination

Land contamination may be classed as environmental damage if there is a significant risk that it could cause harm to human health.

Environmental damage can also apply to water pollution and damage to protected conservations areas.

Water pollution

Nature conservation

In England, Scotland and Wales most cases of land contamination will be covered by other regulations. The more serious cases of land contamination are likely to be classed as environmental damage.

If land contamination caused by your activities is serious enough to be classed as environmental damage you will have to remediate the damage.

Remediation means restoring land affected by contamination so that it is no longer a risk to human health.

Prevention of environmental damage

If your activities could cause environmental damage you will be committing an offence if you do not:

take all possible steps to prevent damage
report details of the risk to the enforcing body if the threat remains.

For example, if you become aware of poorly maintained storage equipment that is at risk of leaking, or is already leaking, and could cause environmental damage, you must take action to stop environmental damage. If your action does not succeed in reducing the risk, you must report it to your environmental regulator.

It is an offence if you do not report environmental damage or the threat of environmental damage. It is also an offence if you do not take action to prevent further damage.

People who may be affected by possible damage may also report risk to the enforcing body.

Your enforcing body may require you to take necessary action to prevent environmental damage. If you do not comply you will be committing an offence.

In England, Northern Ireland and Wales the enforcing body will issue you with a prevention notice describing the work you need to carry out.

The enforcing body can do the prevention work themselves and charge you for this if:

the threat of damage is considered an emergency
you do not comply with a prevention notice in England, Northern Ireland and Wales
you do not comply with a requirement to prevent further damage in Scotland.

What happens if you cause environmental damage

If your activities cause pollution or damage that is serious enough to be environmental damage you must:

take all possible steps to prevent further damage
report details of the damage to the relevant enforcing body.

People who may be affected by possible damage can also report damage to the enforcing body.

Strict liability

Strict liability means that you do not have to be proved to be at fault to be liable for environmental damage. If you have been carrying out any of the strict liability activities listed in the regulations and you cause environmental damage you will automatically be guilty of an offence without being allowed to offer a defence. These activities include:

waste management operations needing a permit or registration such as collecting, transporting, recovering and disposing of waste and hazardous/special waste
operating landfill sites
managing extractive mining waste
discharging to surface and groundwater that requires authorisation
abstracting and storing water in a way that requires a licence
activities involving dangerous substances, pesticides and biocides
transporting dangerous and polluting goods
activities involving genetically modified organisms
activities requiring an environmental permit or PPC Permit
importing and exporting waste.

You are liable if your activity caused, or is likely to cause, environmental damage, and you must prevent or remediate the damage.

Exemptions

The regulations do not apply to any environmental damage that occurred before:

1 March 2009 in England
24 July 2009 in Northern Ireland
24 June 2009 in Scotland
6 May 2009 in Wales.

For further information on exemptions read the Defra guidance.

Defra: Environmental liability directive

Remediation of environmental damage

Remediation of land damage is the restoration of the land so that it is no longer a risk to human health.

England, Wales and Northern Ireland

If your activity caused environmental damage you will have to remediate it.

The enforcing body will serve you with a liability notice stating that you are liable for the remediation. You will have to tell the enforcing body what you propose to do to remediate the damage.

The enforcing body will decide what remedial work you will have to do and will serve you with a remediation notice giving you a timescale to complete the work. If you don’t comply with this notice you are committing an offence.

Scotland

You will have to tell the enforcing authority what you propose to do to remediate the damage.

Having received your proposal the enforcing authority will give you instructions on what remedial work you will have to do. Failure to comply is an offence.

Appeals

You can appeal against a liability notice (England, Northern Ireland and Wales) or a request to take necessary preventative or remedial work (Scotland) within 28 days of it being served on you.

You can appeal for certain reasons, for example:

the damage occurred when you were complying with an instruction from an authority, unless the instruction was in response to an incident you caused
you were complying with a permit or authorisation that allowed you to take the action that led to the damage (in Northern Ireland, Scotland and Wales this appeal does not apply to damage caused by genetically modified organisms)
you can demonstrate that the damage was caused by an activity or product not known to be damaging
the damage was caused by someone else and you had taken all appropriate safety measures to prevent it, eg someone damaged your equipment despite the fact that you had taken all possible measures to secure it.

In England, Northern Ireland and Wales you can also appeal against a remediation notice, but only if the contents of the notice are unreasonable. Defra provides further information on appealing against a notice.

Defra: Environmental liability directive

Enforcing bodies

The Environmental Damage Regulations (England and Wales) and the Environmental Liability Regulations (Scotland and Northern Ireland) can be enforced by a number of organisations.

England and Wales

Your local authority is the enforcing body for damage, or risk of damage, to land.

Contact your local authority

The Environment Agency is the enforcing body for damage, or risk of damage, to:

non-marine water
biodiversity and sites of special scientific interest (SSSI) in non-marine environments
biodiversity and SSSIs in marine environments due to activities regulated by the Environment Agency (such as flood defence or energy generation).

Environment Agency

Natural England and the Countryside Council for Wales are the enforcing body for damage, or risk of damage, to biodiversity and SSSIs other than water and marine environments.

Countryside Council for Wales

Natural England

The Marine and Fisheries Agency is the enforcing body for damage, or risk of damage, to biodiversity in the marine environment.

Marine and Fisheries Agency