- Latest available (Revised)
- Point in Time (01/04/2014)
- Original (As enacted)
Point in time view as at 01/04/2014. There are multiple versions of this provision on screen. These apply to different geographical extents.
You are viewing this legislation item as it stood at a particular point in time. At this point in time multiple versions of this provision exist for differing geographical extents. Sometimes the text of a provision is changed, but the change(s) only apply to a particular geographical area. In some limited cases where this happens, the editorial team create a version for each different geographical area. Multiple versions are only created in this way where the change in question is a substitution so that there are different versions of the text for the different extents.
Environmental Protection Act 1990, Section 78A is up to date with all changes known to be in force on or before 27 August 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
Changes and effects yet to be applied by the editorial team are only applicable when viewing the latest version or prospective version of legislation. They are therefore not accessible when viewing legislation as at a specific point in time. To view the ‘Changes to Legislation’ information for this provision return to the latest version view using the options provided in the ‘What Version’ box above.
(1)The following provisions have effect for the interpretation of this Part.
(2)“Contaminated land” is 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
[F3(b)significant pollution of controlled waters is being caused or there is a significant possibility of such pollution being caused;]
and, in determining whether any land appears to be such land, a local authority shall, subject to subsection (5) below, act in accordance with guidance issued by the Secretary of State in accordance with section 78YA below with respect to the manner in which that determination is to be made.
(3)A “special site” is any contaminated land—
(a)which has been designated as such a site by virtue of section 78C(7) or 78D(6) below; and
(b)whose designation as such has not been terminated by the appropriate Agency under section 78Q(4) below.
(4)“Harm” means 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.
(5)The questions—
(a)what harm [F4or pollution of controlled waters] is to be regarded as “significant”,
(b)whether the possibility of significant harm [F5or of significant pollution of controlled waters] being caused is “significant”,
F6(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
shall be determined in accordance with guidance issued for the purpose by the Secretary of State in accordance with section 78YA below.
(6)Without prejudice to the guidance that may be issued under subsection (5) above, guidance under paragraph (a) of that subsection may make provision for different degrees of importance to be assigned to, or for the disregard of,—
(a)different descriptions of living organisms or ecological systems[F7, or of poisonous, noxious or polluting matter or solid waste matter];
(b)different descriptions of places [F8or controlled waters, or different degrees of pollution]; or
(c)different descriptions of harm to health or property, or other interference;
and guidance under paragraph (b) of that subsection may make provision for different degrees of possibility to be regarded as “significant” (or as not being “significant”) in relation to different descriptions of significant harm [F9or of significant pollution].
(7)“Remediation” means—
(a)the doing of anything for the purpose of assessing the condition of—
(i)the contaminated land in question;
(ii)any controlled waters 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 [F10significant] pollution of controlled waters, by reason of which the contaminated land is such land; or
(ii)of restoring the land or waters to their 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 waters;
and cognate expressions shall be construed accordingly.
(8)Controlled waters are “affected by” contaminated land if (and only if) it appears to the enforcing authority that the contaminated land in question is, for the purposes of subsection (2) above, in such a condition, by reason of substances in, on or under the land, that [F11significant pollution of those waters is being caused or there is a significant possibility of such pollution being caused].
(9)The following expressions have the meaning respectively assigned to them—
“the appropriate Agency” means—
“appropriate person” means any person who is an appropriate person, determined in accordance with section 78F below, to bear responsibility for any thing which is to be done by way of remediation in any particular case;
“charging notice” has the meaning given by section 78P(3)(b) below;
“controlled waters”—
in relation to England and Wales, has the same meaning as in Part III of the M1Water Resources Act 1991 [F14except that “ground waters” does not include waters contained in underground strata but above the saturation zone]; and
in relation to Scotland, has the same meaning as in section 30A of the M2Control of Pollution Act 1974;
“creditor” has the same meaning as in the M3Conveyancing and Feudal Reform (Scotland) Act 1970;
“enforcing authority” means—
in relation to a special site, the appropriate Agency;
in relation to contaminated land other than a special site, the local authority in whose area the land is situated;
“heritable security” has the same meaning as in the M4Conveyancing and Feudal Reform (Scotland) Act 1970;
“local authority” in relation to England and Wales means—
any unitary authority;
any district council, so far as it is not a unitary authority;
the Common Council of the City of London and, as respects the Temples, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple respectively;
and in relation to Scotland means a council for an area constituted under section 2 of the M5Local Government etc. (Scotland) Act 1994;
“notice” means notice in writing;
“notification” means notification in writing;
“owner”, in relation to any land in England and Wales, means a person (other than a mortgagee not in possession) who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let;
“owner”, in relation to any land in Scotland, means 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;
“pollution of controlled waters” means the entry into controlled waters of any poisonous, noxious or polluting matter or any solid waste matter;
“prescribed” means prescribed by regulations;
“regulations” means regulations made by the Secretary of State;
“remediation declaration” has the meaning given by section 78H(6) below;
“remediation notice” has the meaning given by section 78E(1) below;
“remediation statement” has the meaning given by section 78H(7) below;
“required to be designated as a special site” shall be construed in accordance with section 78C(8) below;
“substance” means any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour;
“unitary authority” means—
the council of a county, so far as it is the council of an area for which there are no district councils;
the council of any district comprised in an area for which there is no county council;
the council of a London borough;
the council of a county borough in Wales.]
Textual Amendments
F2Pt. IIA (ss. 78A-78YC) inserted (in force at 21.9.1995 for certain purposes only, at 1.4.2000 for E. in so far as not already in force, at 14.7.2000 for S. for certain purposes and otherwise 14.7.2000) by 1995 c. 25, s. 57 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3; S.I. 2000/340, art. 2(a); S.S.I. 2000/180, art. 2(1)(a)(2); S.I. 2000/1986, art. 2
F3S. 78A(2)(b) substituted (E.W.) (6.4.2012) by Water Act 2003 (c. 37), ss. 86(2)(a), 105(3); S.I. 2012/264, art. 2; S.I. 2012/284, art. 2
F4Words in s. 78A(5)(a) inserted (E.W.) (6.4.2012) by Water Act 2003 (c. 37), ss. 86(2)(b)(i), 105(3); S.I. 2012/264, art. 2; S.I. 2012/284, art. 2
F5Words in s. 78A(5)(b) inserted (E.W.) (6.4.2012) by Water Act 2003 (c. 37), ss. 86(2)(b)(ii), 105(3); S.I. 2012/264, art. 2; S.I. 2012/284, art. 2
F6S. 78A(5)(c) repealed (E.W.) (6.4.2012) by Water Act 2003 (c. 37), ss. 86(2)(b)(iii), 105(3), Sch. 9 Pt. 3; S.I. 2012/264, art. 2; S.I. 2012/284, art. 2
F7Words in s. 78A(6)(a) inserted (E.W.) (6.4.2012) by Water Act 2003 (c. 37), ss. 86(2)(c)(i), 105(3); S.I. 2012/264, art. 2; S.I. 2012/284, art. 2
F8Words in s. 78A(6)(b) inserted (E.W.) (6.4.2012) by Water Act 2003 (c. 37), ss. 86(2)(c)(ii), 105(3); S.I. 2012/264, art. 2; S.I. 2012/284, art. 2
F9Words in s. 78A(6) inserted (E.W.) (6.4.2012) by Water Act 2003 (c. 37), ss. 86(2)(c)(iii), 105(3); S.I. 2012/264, art. 2; S.I. 2012/284, art. 2
F10Word in s. 78A(7)(b)(i) inserted (E.W.) (6.4.2012) by Water Act 2003 (c. 37), ss. 86(2)(d), 105(3); S.I. 2012/264, art. 2; S.I. 2012/284, art. 2
F11Words in s. 78A(8) substituted (E.W.) (6.4.2012) by Water Act 2003 (c. 37), ss. 86(2)(e), 105(3); S.I. 2012/264, art. 2; S.I. 2012/284, art. 2
F12Words in s. 78A(9) omitted (1.4.2013) by virtue of The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 216(a) (with Sch. 7)
F13Words in s. 78A(9) inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 216(b) (with Sch. 7)
F14In s. 78A(9) in definition of "controlled waters" words inserted (1.10.2004 for E. and 11.11.2004 for W.) by Water Act 2003 (c. 37), ss. 86(2)(f), 105; S.I. 2004/2528, art. 2(q) (with art. 4, Sch.); S.I. 2004/2916, art. 2(e)
Modifications etc. (not altering text)
C5Pt. IIA (ss. 78A-78YC) applied (with modifications) (S.) (1.4.2007 for certain purposes, 30.10.2007 otherwise) by The Radioactive Contaminated Land (Scotland) Regulations (S.S.I. 2007/179), regs. 1(1)(2), 2-15 (as amended: (10.12.2007) by S.I. 2007/3240, reg. 3 (with reg. 2); (26.6.2009) by S.S.I. 2009/202, regs. 1, 2; (30.9.2010) by S.I. 2010/2153, regs. 1, 2, 3; (coming into force in accordance with art. 1(2)-(5) of the amending S.I.) by The Nuclear Installations (Liability for Damage) Order 2016 (S.I. 2016/562), art. 1(2), Sch. 2 para. 11 (with art. 40); (22.5.2019) by The Radiation (Emergency Preparedness and Public Information) Regulations 2019 (S.I. 2019/703), reg. 1(1), Sch. 10 para. 8 (with reg. 3))
Commencement Information
I1This version of this provision extends to England and Wales only; a separate version has been created for Scotland
Marginal Citations
(1)The following provisions have effect for the interpretation of this Part.
(2)“Contaminated land” is 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
[F15(b)significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused.]
and, in determining whether any land appears to be such land, a local authority shall, subject to subsection (5) below, act in accordance with guidance issued by the Secretary of State in accordance with section 78YA below with respect to the manner in which that determination is to be made.
(3)A “special site” is any contaminated land—
(a)which has been designated as such a site by virtue of section 78C(7) or 78D(6) below; and
(b)whose designation as such has not been terminated by the appropriate Agency under section 78Q(4) below.
(4)[F16Subject to sub section (4A), “harm”] means 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.
[F17(4A)“Harm”, in relation to the water environment has the same meaning as in section 20(6) of the Water Environment and Water Services (Scotland) Act 2003.]
(5)The questions—
(a)what harm [F18or pollution of the water environment] is to be regarded as “significant”,
(b)whether the possibility of significant harm [F19or of significant pollution of the water environment] being caused is “significant”,
(c)F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
shall be determined in accordance with guidance issued for the purpose by the Secretary of State in accordance with section 78YA below.
(6)Without prejudice to the guidance that may be issued under subsection (5) above, guidance under paragraph (a) of that subsection may make provision for different degrees of importance to be assigned to, or for the disregard of,—
(a)different descriptions of living organisms or ecological systems [F21or substances which may give rise to pollution;]
(b)different descriptions of places [F22or of the water environment, or different degrees of pollution]; or
(c)different descriptions of harm to health or property, or other interference;
and guidance under paragraph (b) of that subsection may make provision for different degrees of possibility to be regarded as “significant” (or as not being “significant”) in relation to different descriptions of significant harm [F23or of significant pollution].
(7)“Remediation” means—
(a)the doing of anything for the purpose of assessing the condition of—
(i)the contaminated land in question;
(ii)[F24the 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 [F25the water environment] for the purpose—
(i)of preventing or minimising, or remedying or mitigating the effects of, any significant harm, or any [F26significant] pollution of [F27the water environment], by reason of which the contaminated land is such land; or
(ii)of restoring the land or [F28water 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 [F29the water environment];
and cognate expressions shall be construed accordingly.
(8)[F30The water environment is]“affected by” contaminated land if (and only if) it appears to the enforcing authority that the contaminated land in question is, for the purposes of subsection (2) above, in such a condition, by reason of substances in, on or under the land, that [F31significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused].
(9)The following expressions have the meaning respectively assigned to them—
“the appropriate Agency” means—
“appropriate person” means any person who is an appropriate person, determined in accordance with section 78F below, to bear responsibility for any thing which is to be done by way of remediation in any particular case;
“charging notice” has the meaning given by section 78P(3)(b) below;
F32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“creditor” has the same meaning as in the M3Conveyancing and Feudal Reform (Scotland) Act 1970;
“enforcing authority” means—
in relation to a special site, the appropriate Agency;
in relation to contaminated land other than a special site, the local authority in whose area the land is situated;
“heritable security” has the same meaning as in the M4Conveyancing and Feudal Reform (Scotland) Act 1970;
“local authority” in relation to England and Wales means—
any unitary authority;
any district council, so far as it is not a unitary authority;
the Common Council of the City of London and, as respects the Temples, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple respectively;
and in relation to Scotland means a council for an area constituted under section 2 of the M5Local Government etc. (Scotland) Act 1994;
“notice” means notice in writing;
“notification” means notification in writing;
“owner”, in relation to any land in England and Wales, means a person (other than a mortgagee not in possession) who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let;
“owner”, in relation to any land in Scotland, means 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;
[F33“pollution”, 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 any harm]
F34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“prescribed” means prescribed by regulations;
“regulations” means regulations made by the Secretary of State;
“remediation declaration” has the meaning given by section 78H(6) below;
“remediation notice” has the meaning given by section 78E(1) below;
“remediation statement” has the meaning given by section 78H(7) below;
“required to be designated as a special site” shall be construed in accordance with section 78C(8) below;
“substance” means any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour;
“unitary authority” means—
the council of a county, so far as it is the council of an area for which there are no district councils;
the council of any district comprised in an area for which there is no county council;
the council of a London borough;
the council of a county borough in Wales.
[F35“the water environment” has the same meaning as in section 3 of the Water Environment and Water Services (Scotland) Act 2003]]
Textual Amendments
F2Pt. IIA (ss. 78A-78YC) inserted (in force at 21.9.1995 for certain purposes only, at 1.4.2000 for E. in so far as not already in force, at 14.7.2000 for S. for certain purposes and otherwise 14.7.2000) by 1995 c. 25, s. 57 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3; S.I. 2000/340, art. 2(a); S.S.I. 2000/180, art. 2(1)(a)(2); S.I. 2000/1986, art. 2
F12Words in s. 78A(9) omitted (1.4.2013) by virtue of The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 216(a) (with Sch. 7)
F13Words in s. 78A(9) inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 216(b) (with Sch. 7)
F15S. 78A(2)(b) substituted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(a)
F16Words in s. 78A(4) substituted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(b)
F17S. 78A(4A) inserted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(c)
F18Words in s. 78A(5)(a) inserted (S.) (21.12.2005) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(d)(i)
F19Words in s. 78A(5)(b) inserted (S.) (21.12.2005) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(d)(ii)
F20S. 78A(5)(c) deleted (S.) (21.12.2005) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(d)(iii)
F21Words in s. 78A(6)(a) inserted (S.) (21.12.2005) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(e)(i)
F22Words in s. 78A(6)(b) inserted (S.) (21.12.2005) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(e)(ii)
F23Words in s. 78A(6) inserted (S.) (21.12.2005) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(e)(iii)
F24Words in s. 78A(7)(a)(ii) substituted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(f)
F25Words in s. 78A(7)(b) substituted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(g)
F26Word in s. 78A(7)(b)(i) inserted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(h)
F27Words in s. 78A(7)(b)(i) substituted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(2)
F28Words in s. 78A(7)(b)(ii) substituted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(i)
F29Words in s. 78A(7)(c) substituted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(j)
F30Words in s. 78A(8) substituted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(k)(i)
F31Words in s. 78A(8) from "pollution" to the end deleted and substituted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(k)(ii)
F32In s. 78A(9) definition of "controlled waters" deleted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(l)(i)(aa)
F33In s. 78A(9) definition of "pollution" inserted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(l)(ii)
F34In s. 78A(9) definition of "pollution of controlled waters" deleted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(l)(i)(bb)
F35In s. 78A(9) definition of "the water environment" inserted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(3)(l)(ii)
Commencement Information
I2This version of this provision extends to Scotland only; a separate version has been created for England and Wales
Marginal Citations
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Point in Time: This becomes available after navigating to view revised legislation as it stood at a certain point in time via Advanced Features > Show Timeline of Changes or via a point in time advanced search.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.
Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:
Click 'View More' or select 'More Resources' tab for additional information including: