The BBC recently published an investigation about hidden threats posed by contaminated land sites, and the availability of public access to information about their locations: Toxic town impact as most high-risk contaminated sites unchecked.
The investigation conclusions highlighted differences between the New Zealand contaminated land regulatory approach and that of the British equivalent system.
Graham Aveyard, operator of Gaia Environmental, explores the comparison between the UK and NZ systems in the article below.
A significant concern expressed by the broadcaster related to the management of public information about UK contaminated sites, which is limited by the regulations to ‘the public register’ which is effectively a register of regulatory action (notices served, determination of a contaminated site or remediation) and not a list of individually identified sites. There is a general emphasis within the system to encourage voluntary remediation. Voluntary remediation means that no record of the site exists on the ‘register’.
The resulting overall approach in both countries is that most of all sites requiring investigation or remediation are resolved through the planning and consenting system of that country rather than a proactive process.
In the UK, in the early 1990’s the government decided that the planned process to openly share specific locations of past land uses that may potentially create contamination was too much of a ‘political hot potato’ and was shelved from draft legislation by changes introduced in the Environment Act 1995. There was no element of ‘evidence’ nor any investigation or risk assessment to soften the blow.
Meanwhile New Zealand has taken the approach of providing transparency. Initially the concept of identifying the past use of a piece of land which still didn’t confirm the presence or absence of contaminants wasn’t immediately clear to the public. The perception was that these sites, known as Hazardous Activities and Industries (HAIL) sites did confirm contamination is present. This perception has become less controversial as the public have become more aware of the basis for identification of their land. In Canterbury, the coincidence of the adoption of the National Environmental Standard (Soil Contamination) at the time of the major clearance and rebuild after the earthquakes led to significant challenges to those applying the new regime however the process will have reduced future potential threats to health on residential premises including the discovery of sites not previously identified from research of local information sources.
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The HAIL is a list of specified land uses of activities and industries that have the potential to leave a legacy of contamination in or under the site. These range from Chemical Manufacture and storage and vehicle refuelling service and repair activities to waste recycling, treatment and disposal operations. |
Unlike the public in the UK, New Zealanders have the option to request information from the council relating to the condition of the land that they live on. This is the public right that the BBC felt was absent in the case of the UK’s system and clearly demonstrates the differences in approach between the two approaches.
All regional councils and many local or district councils maintain a record of sites that ‘more than likely’ had once been used for HAIL activities. Some go one step further by providing online resources to look up these records. One such system is provided by Environment Canterbury (ECan) provides instant access and downloadable property statements. House-buyers in Canterbury may recall seeing these in the property files at open homes when they are viewing and considering purchasing a property.
ECan’s Listed Land Use Register, which incorporates more information than just the identified HAIL sites and has won two awards for innovation, whilst no longer unique, is still the one of the better systems being used to provide information directly to the public. However, the availability of such information may lead to concerns over ‘what happens if the land you live on is recorded in the register.’
Perversely, the purpose of creating the HAIL register relates to the resource consenting process and is not an intervention for the protection of human health. It exists to prompt councils to have the land investigated as part of a consent application for activities involving soil disturbance or disposal, change of use, subdivision, or some activities such as tank removal from petrol stations. Until a consent is required, the register listing may be purely administrative in terms of powers to enforce a clean-up. Some powers exist under the Resource Management Act to regulate discharges, but these are generally reserved for discovery of significant discharges or incidents which may not be specifically human health related.
So, why is the BBC so concerned that these sites have been identified by UK councils, but the details not shared? Well, the original concerns were that the land could be blighted if the register was open to the public, that the locations had not been investigated to confirm the presence of contamination, nor were they risk assessed to determine that contaminants present were significant to pose a risk to human health. The same could be said for the HAIL listings in New Zealand. However, now that the HAIL has been completed, that disincentive has been removed, and the country is largely accepting that the HAIL does not condemn land, just flag it as an issue to be addressed, usually sometime in the future.
However, unlike the UK, in New Zealand there is no statutory duty for the regulator (the local councils) themselves to investigate those sites considered a priority (those having a significant possibility of causing significant harm). Furthermore, the BBC are concerned that whilst the responsibility for investigation of these sites falls to the council, few councils are carrying out investigations due to the high costs and limited resources to engage professional site investigations. In neither regime is there adequate funding to investigate such land within existing local council budgets.
Previously the UK had a contestable fund of £17.5m ($39m) per year which was withdrawn in 2014. Local councils in the UK now have to fund any investigation from their existing budgets which are being squeezed from all directions and the result, as identified by the BBC, is that few are doing so.
New Zealand has a discretionary fund available through the Ministry for the Environment on a prioritised basis, which has recently been increased from $2.6m to $20m per year for the next 4 years, but this now covers both investigation and remediation of contaminated sites and vulnerable landfills.
Another significant difference between the two regimes is that the UK has adopted a ‘Polluter Pays’ principle, endeavouring to recover the costs of investigating or remediating sites from those responsible for causing the pollution. New Zealand doesn’t follow this approach but instead leaves landowners liable for any such costs through a ‘buyer beware’ approach.
This leaves landowners vulnerable to liability where the land is found to contain contamination caused by previously unknown land uses. Two recent cases emphasise this point. In the first case, an individual purchased a section only to find a car body and other inert wastes buried on the site once construction started. This could have been identified by the local district council prior to being discovered by the regional council's HAIL sites review but these details never seemed to have been included on their own records. Therefore, the purchasers never found about the potential presence of fill on their site until the excavations had started.
Another situation involved the discovery of historic foundry wastes below houses and gardens of properties being repaired after the Christchurch earthquakes which would never have been identified in any other way. The normal processes of identification would include a review of available historical aerial photography. However, in this case they do not show the land location as having been disturbed in even as far back as the earliest available photographs which were taken in 1940.
In both these cases the land has been remediated and is safe for the current residential uses.
ECan has now completed its identification of sites throughout the regional examination of aerial photography, commercial records and historic consents. More than 14,000 sites are identified in Canterbury as having previous land uses that could lead to the presence of contaminants.
If you’re living in Canterbury, a simple and free online enquiry through Listed Land Use Register, which also includes the option to download a property statement, will tell you what is currently known about your land. The system is designed to provide location-specific information to those who need it, while protecting that information from being accessed for general or non-specific purposes.
With regards to the question of which approach is more favourable: the NZ approach of transparency, or the UK’s approach of limiting access to land information, my view is that now the creation of the HAIL register has been completed, the New Zealand approach provides a much more positive approach to management and regulation of potentially contaminated sites. The current weakness in the New Zealand system is not providing proactive tools to resolve identified threats. Action needs to be taken by the ministries of health and environment to close the loop of identification and resolution in relation to contaminated sites.
About the author
Graham Aveyard was the team leader for Contaminated Land at Environment Canterbury and currently operates Gaia Environmental, an advisory contaminated land consultancy based in Christchurch. The views expressed in the article are those of the author and not necessarily those of Environment Canterbury.
