Regeneration of brownfield land: the environmental law challenges
| Pages | 202-218 |
| DOI | https://doi.org/10.1108/JPPEL-12-2017-0038 |
| Date | 16 October 2018 |
| Published date | 16 October 2018 |
| Author | Jennifer Charlson |
| Subject Matter | Building & construction law,Property law,Building & construction |
Regeneration of brownfield land:
the environmental law challenges
Jennifer Charlson
School of Architecture and the Built Environment,
University of Wolverhampton, Wolverhampton, UK
Abstract
Purpose –The purpose of the project was to investigate environmental law issues surrounding the
regenerationof brownfield land.
Design/methodology/approach –Following a literature review, an inductive approach and an
interpretivist epistemologywith a phenomenological focus were chosen. A constructionistontological stance
was adopted.A qualitative paradigm was selected to explorethe issues in a focus group comprising industry,
legal expertand academiccontributors.
Findings –A critique of the literatureon relevant environmental law issues including contaminatedland,
waste management, water pollution,environmental impact assessment (EIA) issues and finally the political
agenda is presented.Contaminated land, waste management, regulatorsand legislation were discussed in the
focus group. The participants contributedtheir experiences and proposed several changes to environmental
law. However,water pollution and EIAs were not considered by the contributors.
Research limitations/implications –Developers face many environmental law challenges when
endeavouringto progress housing on brownfield sites includingcontaminated land, funding, waste treatment
permits, water pollutionand EIAs. The benefits of the remediation of brownfield sites for housing seem to be
a political priority, but reform of challenging environmental law issues less so. Understandably, the legal
complexitiesof Brexit will take precedence.
Originality/value –The literature review identified the need to research the experience of brownfield
environmental law challengesand recommended changes to environmental law from industry, legal experts
and academia.
Keywords Reform, Housing, Legislation, Contaminated land, Brownfield land, Brexit,
Environmental law, Political context, Regulators and waste management
Paper type Research paper
1. Introduction
The aim of the project was to investigate environmental law issues surrounding the
regeneration and re-use of brownfield land. The introduction to this paper sets the issues
within the political context. Thereis a focus on housing in the UK’s West Midlands region,
but the issues are applicable to other developments in England. Section 2 analyses
contaminated land challengesincluding the legal regime, case law, remediation declarations,
critique of the legal system, liability for contaminated land and funding.Section 3 examines
other environmental law issues including waste management, water pollution and
environmental impact assessments (EIA). Section 4 explores the political agenda including
priorities in the West Midlands, Brexit implications, better regulation and the priority of
environmental law reform. Section 5 details the research methodology. The focus group
results are in Section 6 and theiranalysis in Section 7. Finally, conclusions are presented.
1.1 Political context
Wong and Schulze-Baing (2010) explain that the reuse of brownfield land for housing has
been a major policy objective in England since the late 1990s. They concludethat this re-use
JPPEL
10,3
202
Received15 December 2017
Revised8 March 2018
21June 2018
Accepted22 August 2018
Journalof Property, Planning and
EnvironmentalLaw
Vol.10 No. 3, 2018
pp. 202-218
© Emerald Publishing Limited
2514-9407
DOI 10.1108/JPPEL-12-2017-0038
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/2514-9407.htm
helps improve income and employment prospects for the most deprived areas in Britain. In
January 2015, the Department for Communities and Local Government (2015) published
their consultation proposals for building more homes on brownfield land. The consultation
(p. 9) explains that “Brownfield”(previously developed) land is defined in Annex 2 of the
National Planning PolicyFramework as:
Land which is or was occupied by a permanent structure, including the curtilage of the developed
land (although it should not be assumed that the whole of the curtilage should be developed) and
any associated fixed surface infrastructure.
The Campaign to Protect Rural England (2016) suggests that brownfield sites across
England can provide at least 1.1 millionnew homes.
The Chancellor (2016), in his Autumn Statement(23 November 2016), announced £2.3bn
for a new Housing InfrastructureFund:
The fund will be used for projects such as roads and water connections that will support the
construction of up to 100,000 new homes in the areas where they are needed most. On top of that,
£1.4 billion will be used to provide 40,000 new affordable homes, including some for shared
ownership and some for affordable rent. And another £1.7 billion will be used to speed up the
construction of new homes on public sector land.
The Housing and Planning Minister (2017), Gavin Barwell, confirmed on 3 April 2017 that
Councils will have new tools to speed up development of derelict and underused land for
new homes. He explained that local authoritieswill now have to produce and maintain up-to-
date, publicly available registers of brownfield sites available for housinglocally. He added
that the £3bn Home Builders Fund will be used to support the development of brownfield
sites, with an additional £1.2bn provided to unlock at least 30,000 starter homes on
brownfield land. There is, therefore, a national political focus on developing housing on
brownfield land.
2. Contaminated land
This section explains the contaminated land legal regime illustrated by case law and
remediation declarations. The system is then critiqued and liability for remediating
contaminated landand the funding implications are discussed.
2.1 Legal regime
The purpose of Part 2A of the Environmental Protection Act 1990[1] (EPA 1990) is to
identify and remediate contaminated land in England which poses an unacceptable risk to
human health or the environment and which is not being remediated voluntarily.
Contaminated landis defined in Section 78A(2) as:
Any land which appears to the local authority in whose area it is situated to be in such a
condition, by reason of substances in, on or under the land, that:
(a) significant harm is being caused or there is a significant possibility of such harm being caused; or
(b) pollution of controlled waters is being, or is likely to be, caused.
The person primarily liable for the remediationcosts is the “polluter”(Class A person) with
the owner or occupier (ClassB person) secondarily liable. As Lees (2016,p. 12) explains:
The [secondary] liability is justified not by fault or causation, but by a direct relationship with the
land. The guidance on the contaminated land provisions in the UK demonstrates that the primary
Regeneration
of brownfield
land
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