Publication - Advice and guidance

Environmental Protection Act 1990 - Part IIA Contaminated Land: statutory guidance edition 2

Published: 7 Jun 2006

This document promulgates revised statutory guidance for the operation of the contaminated land regime following implementation of the Contaminated Land (Scotland) Regulations 2005. It replaces the earlier 2000 version.

Environmental Protection Act 1990 - Part IIA Contaminated Land: statutory guidance edition 2
ANNEX 6: Glossary of Terms

ANNEX 6: Glossary of Terms

The statutory guidance (and other parts of this Circular) uses a number of terms which are defined in Part IIA of the 1990, other Acts or in the guidance itself. The meanings of the most important of these terms are set out below, along with a reference to the section in the Act or the paragraph in which the relevant term is defined. Terms which are defined in statutes (mostly in section 78A of the 1990 Act) are shown with underlining.

Animal or crop effect: significant harm of a type listed in box 3 of Table A of Chapter A.

Apportionment: any determination by the enforcing authority under section 78F(7) (that is, a division of the costs of carrying out any remediation action between two or more appropriate persons). Paragraph D.5(e)

Appropriate person: defined in section 78A(9) as: "any person who is an appropriate person, determined in accordance with section 78F..., to bear responsibility for any thing which is to be done by way of remediation in any particular case."

Assessment action: a remediation action falling within the definition of remediation in section 78A(7)(a), that is the doing of anything for the purpose of assessing the condition of the contaminated land in question, or the water environment affected by that land or any land adjoining or adjacent to that land. Paragraph C.8(e)

Attribution: the process of apportionment between liability groups. Paragraph D.5(e)

Building: any structure or erection, and any part of a building including any part below ground, but not including plant or machinery comprised in a building Table A.

Building effect: significant harm of a type listed in box 4 of Table A of Chapter A.

Caused or knowingly permitted: test for establishing responsibility for remediation, under section 78F(2); see paragraphs 9.8 to 9.15 of Annex 2 for a discussion of the interpretation of this term.

Changes to Substances: an exclusion test for Class A persons set out in Part 5 of Chapter D Paragraphs D.62 to D.64.

Class A liability group: a liability group consisting of one or more Class A persons. Paragraph D.5(c)

Class A person: a person who is an appropriate person by virtue of section 78F(2) (that is, because he has caused or knowingly permitted a pollutant to be in, on or under the land). Paragraph D.5(a)

Class B liability group: a liability group consisting of one or more Class B persons Paragraph D.5(c)

Class B person: a person who is an appropriate person by virtue of section 78F(4) or (5) (that is, because he is the owner or occupier of the land in circumstances where no Class A person can be found with respect to a particular remediation action). Paragraph D.5(b)

Collective action: a remediation action which addresses together all of the significant pollution linkages to which it is referable, but which would not have been part of the remediation package for every one of those linkages if each of them had been addressed separately. Paragraph D.22(b)

Common action: a remediation action which addresses together all of the significant pollution linkages to which it is referable, and which would have been part of the remediation package for each of those linkages if each of them had been addressed separately. Paragraph D.22(a)

Contaminant: a substance which is in, on or under the land and which has the potential to cause harm or to cause pollution of the water environment. Paragraph A.13

Contaminated land: 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) significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused.."

Contaminated Land (Scotland) Regulations 2000: regulations ( SI 2000/178 as amended by SSI 2005/658 ) made under Part IIA - described in Annex 4.

Contaminated Land (Scotland) Regulations 2005: regulations ( SI 2005/658 ) made under Part IIA - described in Annex 5.

Cost recovery decision: any decision by the enforcing authority whether:

a) to recover from the appropriate person all the reasonable costs incurred by the authority in carrying out remediation, or

b) not to recover those costs or to recover only part of those costs. Paragraph E.8

Current use: any use which is currently being made, or is likely to be made, of the land and which is consistent with any existing planning permission (or is otherwise lawful under town and country planning legislation). This definition is subject to the following qualifications:

(a) the current use should be taken to include any temporary use, permitted under town and country planning legislation, to which the land is, or is likely to be, put from time to time;

(b) the current use includes future uses or developments which do not require a new, or amended, grant of planning permission;

(c) the current use should, nevertheless, be taken to include any likely informal recreational use of the land, whether authorised by the owners or occupiers or not, (for example, children playing on the land); however, in assessing the likelihood of any such informal use, the local authority should give due attention to measures taken to prevent or restrict access to the land; and

(d) in the case of agricultural land, however, the current agricultural use should not be taken to extend beyond the growing or rearing of the crops or animals which are habitually grown or reared on the land. Paragraph A.26

Ecological system effect: significant harm of a type listed in box 2 of Table A of Chapter A.

Enforcing authority: defined in section 78A(9) as:

(a) in relation to a special site, SEPA;

(b) in relation to contaminated land other than a special site, the local authority in whose area the land is situated.

Escaped Substances: an exclusion test for Class A persons set out in Part 5 of Chapter D. Paragraphs D.65 to D.67

Excluded Activities: an exclusion test for Class A persons set out in Part 5 of Chapter D. Paragraphs D.47 to D.50

Exclusion: any determination by the enforcing authority under section 78F(6) (that is, that a person is to be treated as not being an appropriate person). Paragraph D.5(d)

Favourable conservation status: defined in Article 1 of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora

Hardship: a factor underlying any cost recovery decision made by an enforcing authority under section 78P(2). See paragraphs 10.8 to 10.10 of Annex 2 for a discussion of the interpretation of this term.

Harm: defined in section 78A(4) as:

"harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property."

Harm in relation to the water environment: defined in section 78A(4A), has the same meaning as in section 20 (6) of the Water Environment and Water Services (Scotland) Act 2003.

Human health effect: significant harm of a type listed in box 1 of Table A of Chapter A.

Industrial, trade or business premises: defined in section 78M(6), for the purpose of determining the penalty for failure to comply with a remediation notice, as: "premises used for any industrial, trade or business purposes or premises not so used on which matter is burnt in connection with any industrial, trade or business process, nd premises are used for industrial purposes where they are used for the purposes of any treatment or process as well as where they are used for the purpose of manufacturing." Inspection using statutory powers of entry: any detailed inspection of land carried out through use of powers of entry given to an enforcing authority by section 108 of the Environment Act 1995. Paragraph B.21

Introduction of Pathways or Receptors: an exclusion test for Class A persons set out in Part 5 of Chapter D. Paragraphs D.68 to D.72.

Intrusive investigation: an investigation of land (for example by exploratory excavations) which involves actions going beyond simple visual inspection of the land, limited sampling or assessment of documentary information. Paragraph B.20(c)

Liability group: the persons who are appropriate persons with respect to a particular significant pollutant linkage. Paragraph D.5(c)

Local authority: defined in section 78A(9) as meaning any Scottish local authority.

Monitoring action: a remediation action falling within the definition in section 78A(7)(c) that is "making of subsequent inspections from time to time for the purpose of keeping under review the condition of the land or waters". Paragraph C.8(g)

Orphan linkage: a significant pollutant linkage for which no appropriate person can be found, or where those who would otherwise be liable are exempted by one of the relevant statutory provisions. Paragraphs D.12, D.14,D.17 and D.103. Owner: defined in section 78A(9), in relation to any land in Scotland, as:

"a person (other than a creditor in a heritable security not in possession of the security subjects) for the time being entitled to receive or who would, if the land were let, be entitled to receive, the rents of the land in connection with which the word is used and includes a trustee, factor, guardian or curator and in the case of public or municipal land includes the persons to whom the management of the land is entrusted."

Part IIA: Part IIA of the Environmental Protection Act 1990.

Pathway: one or more routes or means by, or through, which a receptor:

(a) is being exposed to, or affected by, a contaminant, or

(b) could be so exposed or affected. Paragraph A.15

Payments Made for Remediation: an exclusion test for Class A persons set out in Part 5 of Chapter D. Paragraphs D.51 to D.56

Person acting in a relevant capacity: defined in section 78X(4), for the purposes of limiting personal liability, as any of the following:

"(a) a person acting as an insolvency practitioner, within the meaning of section 388 of the Insolvency Act 1986 (including that section as it applies in relation to an insolvent partnership by virtue of any order made under section 421 of that Act);

"(b) the official receiver acting in a capacity in which he would be regarded as acting as an insolvency practitioner within the meaning of section 388 of the Insolvency Act 1986 if subsection (5) of that section were disregarded;

"(c) the official receiver acting as a receiver or manager;

"(d) a person acting as a special manager under section 177 or 370 of the Insolvency Act 1986;…

"(f) a person acting as a receiver or receiver and manager under or by virtue of any enactment, or by virtue of his appointment as such by an order of a court or by any other instrument."

Pollutant: a contaminant which forms part of a pollutant linkage. Paragraph A.18

Pollutant linkage: the relationship between a contaminant, a pathway and a receptor. Paragraph A.18

Pollution of the water environment: in relation to the water environment, means the direct or indirect introduction, as a result of human activity, of substances into the water environment, or any part of it, which may give rise to harm

Possibility of significant harm: a measure of the probability, or frequency, of the occurrence of circumstances which would lead to significant harm being caused. Paragraph A.27

Receptor: either:

(a) a living organism, a group of living organisms, an ecological system or a piece of property which:

(i) is in a category listed in Table A in Chapter A as a type of receptor, and

(ii) is being, or could be, harmed, by a contaminant; or

(b) the water environment which is being, or could be, polluted by a contaminant. Paragraph A.14

Register: the public register maintained by the enforcing authority under section 78R of particulars relating to contaminated land.

Related companies: those which are members of a group of companies consisting of a "holding company" and its "subsidiaries", where these terms have the same meaning as in section 736 of the Companies Act 1985. Paragraph D.46(b)

Relevant date: the date on which the enforcing authority first served on anyone a notice under section 78B(3) identifying the land as contaminated land (used in assessing whether appropriate persons are "related companies"). Paragraph D.46(a)

Relevant information: information relating to the assessment of whether there is a significant possibility of significant harm being caused, which is:

(a) scientifically-based;

(b) authoritative;

(c) relevant to the assessment of risks arising from the presence of contaminants in soil; and

(d) appropriate to the determination of whether any land is contaminated land for the purposes of Part IIA, in that the use of the information is consistent with providing a level of protection of risk in line with the qualitative criteria set out in Tables A and B of Chapter A. Paragraph A.31

Relevant land or water environment: the contaminated land in question, any water environment affected by that land and any land adjoining or adjacent to the contaminated land on which remediation might be required as a consequence of the contaminated land being such land. Paragraph C.8(d)

Remedial treatment action: a remediation action falling within the definition in section 78A (7)(b), that is the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land or water environment for the purpose:

(a) of preventing or minimising, or remedying or mitigating the effects of any significant harm, or any significant pollution of the water environment, by reason of which the contaminated land is such land, or

(b) of restoring the land or water environment to its former state. Paragraph C.8(f)

Remediation: defined in section 78A(7) as

"(a) the doing of anything for the purpose of assessing the condition of -

"(i) the contaminated land in question;

"(ii) the water environment affected by that land; or

"(iii) any land adjoining or adjacent to that land;

"(b) the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land or waters for the purpose -

"(i) of preventing or minimising, or remedying or mitigating the effects of, any significant harm, or any significant pollution of the water environment, by reason of which the contaminated land is such land; or

"(ii) of restoring the land or water environment to its former state; or

"(c) the making of subsequent inspections from time to time for the purpose of keeping under review the condition of the land or water environment."

Remediation action: any individual thing which is being, or is to be, done by way of remediation. Paragraph C.8(a)

Remediation declaration: defined in section 78H(6). It is a document prepared and published by the enforcing authority recording remediation actions which it would have specified in a remediation notice, but which it is precluded from specifying by virtue of sections 78E(4) or (5), the reasons why it would have specified those actions and the grounds on which it is satisfied that it is precluded from specifying them in a notice.

Remediation notice: defined in section 78E(1) as a notice specifying what an appropriate person is to do by way of remediation and the periods within which he is required to do each of the things so specified.

Remediation package: the full set or sequence of remediation actions, within a remediation scheme, which are referable to a particular significant pollutant linkage. Paragraph C.8(b)

Remediation scheme: the complete set or sequence of remediation actions (referable to one or more significant pollutant linkages) to be carried out with respect to the relevant land or waters. Paragraph C.8(c)

Remediation statement: defined in section 78H(7). It is a statement prepared and published by the responsible person detailing the remediation actions which are being, have been, or are expected to be, done as well as the periods within which these things are being done.

Risk: the combination of:

(a) the probability, or frequency, of occurrence of a defined hazard (for example, exposure to a property of a substance with the potential to cause harm); and

(b) the magnitude (including the seriousness) of the consequences. Paragraph A.9

SEPA: the Scottish Environment Protection Agency.

Shared action: a remediation action which is referable to the significant pollutant in more than one significant pollutant linkage. Paragraph D.21(b)

Single-linkage action: a remediation action which is referable solely to the significant pollutant in a single significant pollutant linkage. Paragraph D.21(a)

Significant harm: defined in section 78A(5). It means any harm which is determined to be significant in accordance with the statutory guidance in Chapter A (that is, it meets one of the descriptions of types of harm in the second column of Table A of that Chapter).

Significant pollutant: a pollutant which forms part of a significant pollutant linkage. Paragraph A.21

Significant pollutant linkage: a pollutant linkage which forms the basis for a determination that a piece of land is contaminated land. Paragraph A.21

Significant possibility of significant harm: a possibility of significant harm being caused which, by virtue of section 78A(5), is determined to be significant in accordance with the statutory guidance in Chapter A.

Site of Special Scientific Interest ( SSSI): A site notified in accordance with section 3 of the Nature Conservation (Scotland) Act 2004 (the 2004 Act); or a site originally notified in accordance with section 23 of the National Parks and Access to the Countryside Act 1949; or section 28 of the Wildlife and Countryside Act 1981, which is an SSSI by virtue of the provisions of Schedule 5 to the 2004 Act.

Sold with Information: an exclusion test for Class A persons set out in Part 5 of Chapter D. Paragraph D.57 to D.61

Special site: defined by section 78A(3) as:

"any contaminated land

"(a) which has been designated as such a site by virtue of section 78C(7) or 78D(6)...;and

"(b) whose designation as such has not been terminated by the appropriate Agency under section 78Q(4)...".

The effect of the designation of any contaminated land as a special site is that SEPA, rather than the local authority, becomes the enforcing authority for the land.

Substance: defined in section 78A(9) as: "any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour."

Water Environment: has the same meaning as in section 3 of the Water Environment and Water Services (Scotland) Act 2003.


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