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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
  • 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
  • Phil Whitaker - Senior Advisor (Contaminated Land & Minewaters), Environment Agency

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.


Case Studies will be published with the intention that other local authorities will be able to draw on the experience and understand the process in relation to the sites. Case Studies are written up following consideration of a site by the panel and approval for publication by the local authority. 

Published December 2015

 


How were Panel members selected?

The Expert Panel has not been set up to advise government but is a Panel of individual experts acting on a voluntary basis that are available to provide independent assistance to Local Authorities when making difficult contaminated land determinations using the revised Part 2A Statutory Guidance. On that basis there was no formal open competition for membership.

Stakeholder groups (including EIC & SAGTA) were approached for recommendations but it was made clear that membership is on an individual basis – there are no affiliations. A number of members were also invited to join based on their expertise in the area of Part 2A. The decision to directly appoint panel members, as opposed to holding an open competition, was agreed with Ministers.

What are the Panel’s Terms of Reference, scope, purpose and authority to act?

The Terms of Reference and scope for the Panel’s work were agreed at the Panel’s first meeting in December 2012 and are available to view on the CL:AIRE website. The purpose of the Panel is to act as a sounding board and provide some independent assistance to Local Authorities when making difficult contaminated land determinations using the revised statutory guidance. There will be a particular focus on those sites that sit on the category 2/3 border and priority will be given to cases with a human health receptor.

The establishment of an Expert Panel was proposed during the Statutory Guidance review as a way to help the contaminated land sector use the revised guidance in the way it is intended. Defra has given the Panel the authority to act in order to help promote consistency in Part 2A decision making through the development of case studies from the Panel’s outputs. These will be made available to the wider sector as evidence of best practice.

How is the Panel’s independence, integrity, conduct and performance to be maintained?

The Panel is a self-regulating body and it is assumed that the Panel itself will ensure that all necessary requirements are met to protect its independence and integrity. As appointments were made on a voluntary basis and the panel has not been set up as a Government advisory body, there are no requirements for members to abide by the Code of Conduct for public appointments. However, Panel members have agreed to use the seven principles of public life as the standard for the work of the Panel.

To whom does the Panel answer?

Defra has overall responsibility for monitoring the Panel’s workings and outputs to confirm it is achieving its intended purpose.

Who will fund the Panel’s operation?

As the Panel works independently of Government or other organisations Panel members will not receive any remuneration for their work. However, Defra has agreed to reimburse panel members’ expenses and the costs of preparing the Case Studies. Defra is also covering the costs of the secretariat.

How long will the Panel be in existence?

We anticipate publishing 10-12 case studies over the next 1-2 years of the panel being in existence, although this will obviously depend on the extent that the panel’s assistance is sought by Local Authorities and the Panel’s continued usefulness.

How will the Panel’s advice and guidance be used?

The Panel offer independent assistance to Local Authorities when they are making decisions on determining sites under the revised Guidance. This assistance will take account of the overarching objectives of the regime and will be given in the context of the new considerations that are prescribed under the Guidance. These include the use of ‘normal’ background concentrations, any new generic assessment criteria (for example, Category 4 Screening Levels), the application of the test for deciding how and when socio-economic factors should be taken into account and establishing POSH before understanding whether there is SPOSH. The Panel will also take account of the content of the Risk Summaries.

How will the Panel’s outputs be publicised?

It is envisaged that the work of the Panel will be disseminated for wider consumption by the sector in the form of Case Studies. The Secretariat (CL:AIRE) are responsible for drafting the Case Studies and these will be published within an agreed timeframe.

Details of cases that are being scrutinised by the Panel are confidential but Panel members are able to give generalised feedback to others, as long as the principles of confidentiality in relation to specific sites are adhered to.

Will case studies be provided for all assistance provided by the Panel?

It is probable that if a Local Authority decides not to use the views of the Panel when making the final Part 2A decision, the objectives of the Panel would not be met. It would therefore not be a good use of resources to fund a written study of the case.

Can the advice of the Panel be challenged and through what channels?

There will be no need for challenge of the Panel’s assistance as the Regulator is not obliged to take account of the Panel’s view. The decision on whether or not to determine the land as contaminated rests entirely with Local Authorities as set out in the EPA 1990.

To what extent is the Panel liable for the assistance provided and decisions made based on it?

The Panel is not considered to be liable for the decisions made by Regulators. The decision to determine land as contaminated under Part 2A rests, as it must do according to the law, with the Regulator.

Will the Panel be insured as a group or will individuals PII cover any liability arising?

The Panel has satisfied itself as to the arrangements that are in place in relation to liability.

How are conflicts of interest being monitored?

The Chair and the Secretariat are responsible for ensuring that there are no conflicts of interest amongst the Panel and monitoring for any potential conflicts forms part of the screening process.