It is common for Clients to request that their consultant obtains “sign off” of proposals for site investigation, risk assessment and in particular remediation verification reports. In the Client’s mind, this means a letter from the regulator on their headed paper absolving the Client from any responsibility for additional investigations etc or from any further “interference” on their site subsequent to remediation works.
Often the consultant can be caught between a rock and a hard place as the regulator may often refrain from commenting upon such reports, let alone “signing them off”. So what is reasonable for the Client to expect, the Regulator to agree and the consultant to deliver? In addressing this aspect in recent guidance (Ref 1), text was drafted, reviewed and eventually agreed by both Environment Agency and local authority representatives and is reproduced below.
Normally, on receipt of a Verification Report, the local planning authority will take advice from their environmental health / contaminated land officers (and the Environment Agency in some circumstances) and if satisfied, formally discharge the relevant planning condition by writing to the applicant. If there is no such planning condition, the local authority or Environment Agency should nevertheless acknowledge receipt of the Verification Report. While liability remains with the developer / their insurers, they will often look to obtain ‘sign off’ of these reports by the relevant regulator(s). Regulators will not do this however, or issue their own verification of the works, but they may be willing to do one or more of the following:
- indicate whether they have reviewed the report;
- state whether they are satisfied with the level of detail provided;
- confirm that it appears to be reasonable given the data presented;
- make a statement about whether (based on the information supplied) they are currently considering the need for any enforcement action under various regulatory regimes.
It is important to understand that it remains the developer’s responsibility to ensure that they have met the remediation objectives, made the site suitable for use and adequately protected all of the relevant receptors.
It is therefore important when a consultant is agreeing a scope of works with a Client that any requirement for “sign off” in the contract is clearly framed along these lines. Consultants should not promise to obtain a commitment from the Environment Agency and/ or the local authority contaminated land officer that are beyond these limitations. Equally, it is in the interests of all parties that the positive engagement with the regulator on a project is recognised by written acceptance of a report by the regulator, along the lines set out above.
For those involved in the Remediation of a site that has been “determined” as contaminated land under Part IIA of the Environmental Protection Act the expectations of sign off, should be even more constrained. This is because in these cases the Statutory Guidance states that any person who has carried out remediation as described in a Remediation Statement can notify the local authority (ie by submitting a Verification Report) providing the details of the “remediation claimed to have been carried out”. The local authority is then under a duty to include the details of the remediation which is claimed to have been carried out on its Register. The guidance then states that “Although Part 2A does not include any formal “signing off” procedure, the Enforcing Authority may wish to consider writing to the Appropriate Person, confirming the position with respect to further enforcement action.” – – – and that the local authority “might confirm that it does not consider that it needs to serve a Remediation Notice, which it would need to do if appropriate remediation had not been carried out”.
Ref 1. Guidance for the safe development of housing on land affected by contamination. R&D 66:2008. Available for free download atwww.nhbc.co.uk/Builders/Technicaladviceandsupport/Publications/ContaminatedLandDevelopment