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Contaminated Land Expert Panel

Introduction

Following publication of Defra’s revised Contaminated Land Statutory Guidance in April 2012, a National Panel of Experts has been set up to support Local Authorities in making decisions on whether land is or is not contaminated. The panel’s work will be focussed on cases that are not straightforward and where there is a question mark over whether the land is considered legally contaminated or not.

The Panel’s membership is made up of contaminated land experts including Local Authorities and the Environment Agency. The panel will be chaired by Andrew Wiseman who is head of the environmental law team at Harrison Grant.

Panel members include:

  • Phil Crowcroft - Consultant ERM
  • Paul Nathanail - Professor of Engineering Geology at the University of Nottingham
  • Sarah Rea - Regeneration Manager, National Grid
  • Simon Cole -Technical Director, AECOM
  • Naomi Earl - Freelance Consultant
  • Seamus Lefroy-Brooks - Principal at LBH WEMBLEY Geotechnical and Environmental
  • Matt Whitehead - Environment Agency
  • Ann Barker - Lead Officer Contaminated Land; City of Bradford Metropolitan District Council
  • Liz Hamer - Environmental Protection Officer North Lincolnshire Council
  • David Jackson - Land Quality Officer, Wakefield Council
  • Mark Edwards - Contaminated Land Officer, Lancaster City Council

The work of the Panel will be used to develop case studies that will be made available to the wider sector as evidence of best practice, helping to promote consistency in decision-making.

If you are a Local Authority interested in submitting an application for review by the panel, please email: conlandexpertpanel@claire.co.uk with brief details of the site in question and your contact details.

Role and Remit

The expert panel has been formed by Defra to assist Local Authorities (LA) in deciding whether or not land may be contaminated within the meaning of Part 2A. This panel does not take decisions on behalf of the local authority nor does it provide formal advice to the local authority. The panel is used as a sounding board to provide some independent assistance to local authorities.

The intention of the panel is to assist local authorities in the "difficult cases" relating to human health issues only which are viewed to be borderline category 2/category 3 and which the LA has not been able to resolve. Please note that due to the panel’s voluntary nature, assistance can only be provided to a limited number of cases and the selected sites will cover a cross section of scenarios.

Procedure

The LA will be required in their submission to demonstrate that they have followed the steps for making a determination as detailed in section 4 of the Statutory Guidance for deciding if land is contaminated under Part 2A. If, having taken all the factors into account, the LA still cannot decide whether the site is category 2 or category 3, then the case can be submitted to the expert panel for guidance. It is not the remit of the expert panel to answer general contaminated land enquiries.

Information about the site in question to be submitted by the Local Authority:

•Name of Local Authority
•Officer contact details
• Site address (attach plan)
• Site description
• Names of potential appropriate persons (if known) – this will enable the panel to identify any potential conflicts
• List of all stakeholders associated with the site (including consultants, lawyers etc) – this will enable the panel to identify potential conflicts
• Copy of draft risk summary – details to be included as per paragraph 3.35 of the statutory guidance
• Details of the key findings of the Phase 1 investigation
• Copy of Conceptual site model identifying potential significant contaminant linkages (ie those linkages that are being considered as the basis for determination) & relevant uncertainties. The LA should concisely present
the relevant site information that would assist the expert panel with their understanding of the site issues
• Brief outline of inspection strategy – describing why the site was selected and how it ranks with other sites in the area under inspection
• List of documents available for review by the panel if required, that have been used to prepare the determination
• Briefly outline the LAs considerations of the likely benefits and impacts of intervention, an estimation of what remediation would involve and the benefits versus the costs of intervention
• Description of issues / areas of concern that the LA want the panel to consider
• Brief issued to any third party risk assessors
• Confirmation if LA is applying for Contaminated Land Capital Project funding. If yes, what timetable is the LA working to and when does a decision need to be made?
• Signed statement confirming the panel shall have no liability

Initial Screening

After submitting the required documentation the panel will screen each application. The intention of this screening process is to deal with any potential conflicts of interest, ensure that the panel has adequate information to assist it and ensure that it is a suitable site to be considered. Additional documentation may be requested if needed. There is a requirement that there is a 4 week gap between initial submission and the meeting of the panel, to allow for sufficient time to review the information submitted and request further information if required.

Assessment & Discussion

Following the screening process the LA will be invited to a meeting of the panel where they will have the opportunity to discuss the site and in particular their concerns as to whether or not the site meets the formal definition of contaminated. This will enable the panel to gain a better understanding of the issues and question the local authority. During the first part of the panel meeting the local authority will be asked to present their dilemma to the panel. This will be followed by questions and discussion with the panel members. The LA may find it helpful to bring with them to the meeting copies of site investigation information for reference only. Ahead of the meeting an agenda will be developed and issued to the local authority providing a list of key sections that the panel would like the local authority to cover in their presentation.

If attending a meeting, the local authority is strongly encouraged to bring no more than four individuals to represent them which can include external consultants, contractors and lawyers working on their behalf. If the LA feels that it is important to bring external people to assist them in the meeting, for example if they have produced the draft risk evaluation on the LA’s behalf, then this must be communicated ahead of the meeting. If external people are brought to the meeting, the following format for the meeting will occur:

•Initial presentation by the LA, followed by Question and Answer session
Question and Answer session with externals (if required to answer specific technical questions)
Panel deliberations
Wrap up with LA only.

The panel will then consider the issues raised and provide verbal guidance as it thinks fit to the LA only on the day. This will be accompanied by written notes after the meeting.

The actual discussions will be confidential to enable a full and frank discussion although the decision may subsequently be published through a case study.

It is anticipated that a response from the expert panel may take in the order of 8 to 12 weeks.

Case Studies

The intention is that other local authorities will be able to draw on the experience and understand the process in relation to the sites. To do this the secretariat may write up a case study following consideration of a site by the panel. In submitting a site to the panel for consideration the local authority agrees that the case study may be published. The local authority will be given the opportunity to comment on the draft case study and it will be suitably anonymised to ensure confidentiality of residents and potential appropriate persons. Consideration will also be given to the timing of the publication of the case study in relation to the local authority’s own decision making processes.

The case studies will be published under a creative common licence and posted on the dedicated web page www.claire.co.uk/conlandexpertpanel.

Liability

It should be noted that the panel does not provide formal advice and cannot accept any liability. The decision whether or not a site meets the formal definition of contaminated is purely that of the local authority and should the local authority feel they need formal advice which they can contractually rely upon they should employ independent consultants and legal advisers. The work of the panel is being carried out by volunteers and they are purely there in a voluntary capacity and liability for any advice is specifically excluded. The local authority in submitting a site for consideration accepts this and understands that the advice of the panel is site specific and therefore is not directly transferrable.

Initial Observations of Contaminated Land Expert Panel

From the cases reviewed to date, the panel has prepared a short document on their initial observations to help local authorities in their determinations of sites. The information is presented under the four key areas in line with what is required to be included within a risk summary as per section 3.35 of the EPA 1990: Part 2A Contaminated Land Statutory Guidance April 2012. The headings include: understanding the risks, understanding the uncertainties, putting the risks in context and possible remediation that could occur on the site.