THE CONTAMINATED LAND ( SCOTLAND ) REGULATIONS 2005
CONSULTATION ANALYSIS
Background
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1. A consultation paper detailing the proposed amendments to Part IIA of the Environment Protection Act 1990 (the 1990 Act) was sent to 119 stakeholders, including all Scottish Local Authorities, and was published on the Scottish Executive website. The consultation ran for a 12 week period, from 10 February to 6 May 2005.
2. The consultation paper invited comments on the proposed amendments to Part IIA of the 1990 Act, together with consequential amendments to the Contaminated Land (Scotland) Regulations 2000 and the statutory guidance - Scottish Executive Rural Affairs Department Circular 1/2000 Environmental Protection Act 1990: Part IIA Contaminated Land. In addition the consultation sought responses to the following specific issues:
- How the proposals might impact on regulatory bodies, and on those persons or bodies who own or occupy contaminated land or who may be liable for such contamination ("appropriate persons");
- The proposed definition of "pollution" by reference to section 20(6) of the Water Environment and Water Services Act 2003 (the 2003 Act);
- The text of proposed definitions of "harm", both in relation to the water environment, and separately in the context of contaminated land;
- Whether deletion of the definition of "pollution of controlled waters" in Part IIA of the 1990 Act requires alternative text concerning "the entry of poisonous, noxious or polluting matter or any solid waste matter" into the water environment; and
- The treatment of "significant" in the statutory guidance.
Responses
4. The Scottish Executive received a total of 27 responses (23% of all consultees), broken down as detailed in Annex A.
5. The Executive was pleased to receive a relatively high response rate to this consultation, with just under half of all Scottish local authorities providing some form of feed-back and a number of other stakeholders including CBI Scotland, Scottish Enterprise and Scottish Water providing useful comments.
6. Copies of the individual responses to the consultation have been lodged in the Scottish Executive Library where they can be viewed.
Analysis
7. Overall, respondents welcomed the draft Regulations and were generally supportive of the proposals with most detailed comments directed at suggestions for technical refinement of the draft statutory guidance. Some councils considered that they would be more comfortable enforcing the new legislation if guidance was issued prior to commencement of the regulations. The Executive accepts that it is unreasonable to expect the regulatory authorities to comply with their new statutory obligations in the absence of such guidance. The Executive has therefore amended the draft Regulations to commence the provisions which concern the amendment of the existing guidance-making powers in the 1990 Act immediately after the draft Regulations are made but delay the commencement of the remaining provisions until 1 April 2006, at which time it is expected that Parliament will have considered the guidance.
8. Most respondents felt that it would be preferable, and aid clarification, to define "pollution" in relation to the water environment by replicating the text from the relevant section of the 2003 Act rather than by a reference to that Act. The proposed regulations incorporate this preference.
9. For the most part, respondents agreed with the proposal to include two definitions of "harm", one specifically relating to the water environment and the other relating to contaminated land. Consultees were generally satisfied that the proposed text was sufficiently clear to enable regulators to make determinations on the matter of "harm" in both sets of circumstances. The Executive therefore propose to retain the two definitions to provide a clear indication on the face of the Regulations as to the circumstances in which each definition is to apply.
10. In the majority of cases respondents agreed with the proposal to insert a reference to "substances which may give rise to pollution" in the draft Regulations following the deletion of the definition of "pollution of controlled waters" in Part IIA of the 1990 Act. Consultees were satisfied that the proposed text was clear and beneficial. The Executive therefore propose to include this wording in the draft Regulations.
11. Most respondents focussed on specific and technical aspects of the statutory guidance. Nearly all provided feedback on the proposed definition of "significant". The Executive will consider these comments in detail when finalising proposed amendments to the draft statutory guidance.
SCOTTISH EXECUTIVE ENVIRONMENT & RURAL AFFAIRS DEPARTMENT
NOVEMBER 2005
ANNEX A
THE CONTAMINATED LAND (SCOTLAND) REGULATIONS 2005
Organisation that responded to the consultation paper
Industry (4)
- BNFL
- DSM Nutritional Products (UK) Ltd
- Environment Resources Management (ERM)
- Nirex
Local Authorities (16)
- Dundee City Council
- East Ayrshire Council
- East Dunbartonshire Council
- East Lothian Council
- Glasgow City Council
- Inverclyde Council
- Midlothian Council
- North Ayrshire Council
- North Lanarkshire Council
- Perth & Kinross Council
- Renfrewshire Council
- South Ayrshire Council
- South Lanarkshire Council
- The Highland Council
- West Dunbartonshire Council
- West Lothian Council
NDPBs (5)
- Environment Agency
- Scottish Enterprise
- Scottish Natural Heritage (SNH)
- Scottish Water
- SEPA
Trade, and other Associations (2)
- CBI Scotland
- The Royal Institution of Chartered Surveyors in Scotland (RICS Scotland)
Note: Numbers in brackets indicate number of responses.
SCOTTISH EXECUTIVE ENVIRONMENT & RURAL AFFAIRS DEPARTMENT
NOVEMBER 2005