Land News

EU waste ruling could land us all in brownfield hell, 3rd May, 2005

Regeneration of derelict or contaminated land is the new buzzword.

Planning consent should be easier to get and developers who are willing to transform abandoned or neglected ex-industrial sites may also qualify for various grants and tax breaks.

Yet we hear constant complaints from the development industry about skyrocketing costs and jungles of red tape.

The reality is that with each passing year, the regulatory and financial obstacles increase.

At a seminar held this month in Edinburgh’s Scotsman Hotel, property developers, local authorities, surveyors, lawyers and environmental regulators, have been discussing the issues, both legal and financial.

There’s no getting away from it - the regulatory framework governing brownfield redevelopment is complex. The basic law, introduced in 2000, is known as the "contaminated land regime" (found in Part IIA of the Environmental Protection Act). It uses a "carrot and stick" approach.

The "stick" is the fact that the regulators can slap a contaminated land notice on your land and force landowners to shell out huge sums on remediation. But it’s the carrot which is encouraged in practice. So the developer can get his consent, so long as he cleans up the site - that’s the theory.

Sometimes in practice, though, it hasn’t been so straightforward.

Frustrations threatened to boil over during much of last year following the July 2004 introduction of new rules implementing the EU Landfill Directive - particularly the ban on the so-called "co-disposal" of hazardous and non-hazardous wastes at the same landfill.

Due to lack of technical capacity at most UK landfill sites, these new rules have made it much more expensive - and in some cases impossible - to offload unwanted contaminated soils from brownfield sites.

Bad as that is, it’s set to get even worse in summer 2005, when stringent EU criteria for the acceptance of waste at landfills come into force.

Just when we were starting to cope with all that, in steps the EU once again: now a Court of Justice ruling is sending tremors through the industry.

It all stems from a court case involving a local prosecution of a petrol filling station in downtown Brussels and because the outcome centred on the meaning of "waste" under EU law, the local court referred the "waste" question to the European Court.

Its word is - literally - law on all EU issues, and what the Court decided has major ramifications for all 25 countries in the EU.

The case is called Texaco Belgium and Van de Walle and concerned the situation where you have a piece of land which has become contaminated from spillage/ seepage of industrial or chemical contaminants.

The European Court ruled that all such spilled contaminants were "legal waste", which is fair enough, but they went on to decide that the soils which they have contaminated are also "waste".

Whilst we have always suspected that this might be the case, it was a grey area. Not any more.

However, the impact of the ruling doesn’t end there. The fact is that developers and authorities are used to treating contaminated soils as waste when these unwanted soils are excavated during a development.

What they would never have guessed is that these soils are to be treated as legal waste - and therefore regulated as such.

The logical legal conclusion is that all land which has been contaminated to the point that the soils are of no immediate use without being decontaminated, is now, technically a waste site.

One implication is that the entire UK contaminated land regime and its waste permitting practices may need to be urgently reviewed.

One thing is for sure, the legal regulation of the regeneration of brownfield land just got hideously complicated.

Vincent Brown is head of environment and pollution law at Scottish legal firm Semple Fraser.

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