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Contaminated Land: A Part 2A Designated Site and How It’s Managed

In the first of a two-part special blog, we will review the contaminated land regime and how Part 2A of the Environmental Protection Act 1990 has been dealt with in practice, through the lens of some specific examples. It highlights how the noble intentions of rooting out the worst offenders have been blunted over time and how planning processes have become the driving mechanism for remediation in many council teams.

The Sandiacre Gas Works site in Erewash Derbyshire is a typical brownfield site, located on the site of a small former gasworks commissioned by Terrah Hooley, a fraudster and developer of the first industrial estate. The gasworks was built in 1888 to provide gas lighting for the adjoining Springfield Mill lace factory in Hooley, part of Nottingham’s ever-expanding lace industry.

The mill was southeast of the Sandiacre Parish Gasworks beside the River Erewash which was diverted for the benefit of the mill and made the development a sort of island formed between the canal and the river . As part of the gasworks development, Hooley agreed to supply coal gas to 50 lampposts in the local area, on the condition that the local council provide funds for the gas.

Two lampposts remain to this day, as does the Moulin, which is a Grade II listed building that has been converted into impressive apartments. Historical records show that the gasworks was in operation from at least 1899 to 1901, and it should be noted that some features of the gasworks can be observed to still be present at the site as late as 1924. Specific details on the exact period of operation of the gasworks works are, however, limited.

Sandiacre Gas Working Site – 1899 OS Map

Historical mapping has shown that the gasworks site was redeveloped in 1938 and the site was used as an upholstery factory until at least 1975. Since then it was used as a site for upholstery works until at least 1993, with current operations being a mattress factory. .

Sandiacre Gas Work site redeveloped into upholstery work – OS Map of 1938
Sandiacre Gas Work site refitted in saddlery – OS Map of 1975

Surprisingly, lace was still produced at the nearby factory until the early 2000s before the site was redeveloped for residential use (Derbyshire Historic Environment Record, 2005).

As the sites go, it is typical of a brownfield site dating back to the Victorian era of industry. It has also been designated under Part 2A of the Environmental Protection Act 1990.

Designation of contaminated land

Part 2A saw local authorities in England take on the duty of care to investigate unacceptable risks posed by land contamination to human health and/or the environment. At the time, local authorities employed Environmental Health Contaminated Lands Officers or occasionally planning teams when they began the desk assessment of properties. The legislation aimed to identify the worst sites causing real environmental damage, then track down the original polluter to remediate the property. That’s not how it happened.

The most recent assessment criteria are set out in Statutory Guidance April 2021 (England) (other documents apply in devolved areas) and require a site to have significant potential for significant harm (SPOSH) . There are assessment phases to establish SPOSH and it starts with a preliminary survey and a conceptual site model. This considers potential sources and the environmental context, which necessitates the potential pathways that could link sources to potentially sensitive receptors. Specific receptors are defined in the statutory guidelines as people, controlled waters (ground and surface waters), ecology and property. Each of the plausible pathways must be assessed for risk before further investigation and ground sampling is used to confirm the preliminary assessment. The concerns identified are known as the source-pollutant link.

Designation of the Sandiacre gas plant

This process was applied to Sandiacre Gas Works where Erewash Town Council identified the site as having a potential risk of controlled water contamination in May 2007. This was the first step in a more detailed investigation . As controlled water was the potential receptor, the Environment Agency was asked to carry out the survey at the targeted site the following year in 2008.

The site survey identified several contaminants above environmental quality standards (EQS) in shallow soils and groundwater. Ammonium was recorded at 5 times the EQS, xylene was recorded at 10 times and naphthalene at 160 times the EQS respectively. These contaminants had a significant potential source-pollutant link (SPL) with the minor (secondary) aquifer.

Further assessments showed that contaminants passed through the soil and clearly presented the potential for contamination of the soils of the site to impact the water bodies that formed some of the site boundaries.

It was concluded that xylene and naphthalene were unlikely to be of concern beyond the site boundary. However, ammonium, which is much more soluble, was probably more prevalent in the surrounding environment, including the Erewash River. This created an interesting situation as government guidelines at the time allowed the occurrence of impacted controlled water to be considered as a reason to designate a property as “Contaminated Land”, whether the investigation concluded that significant damage s was produced or not. This would not have been the case if it were any other receiver.

As a result, Erewash Council designated the gasworks as contaminated land on February 12, 2010.

At the time, the property continued to be used in the manufacture of mattresses, with infrastructure and buildings in daily operation. The local authority recognized that there would be enormous difficulties in remediating the site with both the current commercial operation and the listed buildings to be taken into account. Moreover, the consequences of the link to the pollutants were considered relatively low risk and would therefore be financially disproportionate to serve a remediation notice.

Consequently, the council, with the support of the EA, issued a remediation statement, making it the only plot on the council’s Part 2A designation register. But, the Council said that although the site was officially designated as contaminated land, no remediation was needed. The current occupant was not considered the original polluter, he was considered a “Class A” person because the drainage was leaking and was considered a significant contributor to pollution migration. Consequently, the operator had to study and improve their drainage. The notice also provided advice and corrective tasks to be carried out, should the site become vacant or redeveloped.

Part 2A versus development as a remedy

The purpose of Part 2A was to hold the polluter accountable and to pay for his contamination. However, that is not how the numbers play out. A soil health study published by the government in 2018 identified that of all sites remediated between 2000 and 2013, an estimated 83% (72,000 sites) were addressed through planning applications rather than the Part 2A process described above.

An additional 7% (5,500 sites) were addressed by Part 2A obligations. Accordingly, although this site has been designated under Part 2A, presumably with the intention of promoting remediation, it is proposed for development to return it to constructive economic use in a planning application submitted in September 2020.

In the rest of this blog, we will discuss some of the issues related to the development constraints of small industrial wastelands.

Blog written by Ceri Samson, Consulting Director at Groundsure.

This article has been submitted for publication by Groundsure as part of their advertising agreement with Today’s Conveyancer. The opinions expressed in this article are those of the author and not those of Today’s Conveyancer.