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Waverley Borough Council Committee System - Committee Document

Meeting of the Environment Overview and Scrutiny Committee held on 24/04/2002
Government Consultation: Development on Land Affected by Contamination




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APPENDIX F
WAVERLEY BOROUGH COUNCIL

ENVIRONMENT OVERVIEW AND SCRUTINY COMMITTEE – 24TH APRIL 2002

Title:
GOVERNMENT CONSULTATION: DEVELOPMENT ON LAND AFFECTED
BY CONTAMINATION
[Wards Affected: All]
Summary and Purpose

The Government has published a consultation draft of new planning technical advice on land affected by contamination. This new advice will replace the existing guidance on contaminated land contained in Planning Policy Guidance Note (PPG) 23 Planning and Pollution Control published in 1994. Planning policy on contamination of land remains unchanged. Views on the document are sought by 15th May 2002.

This report sets out recommendations for forwarding to the Government.

There are no direct community safety, human rights, “Opportunities for All” or resource implications arising from this report. The environmental implications are set out in the report.
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Introduction and Background

1. Current Government guidance regarding development on land affected by contamination is contained in Section 4 of PPG 23. This PPG covers all aspects of the control of development and pollution. It is particularly relevant, but not exclusively so, to industrial development, waste treatment and waste disposal, all of which pose a potential for pollution. The PPG also provides specific guidance on the redevelopment of contaminated land and guidance on development proposals near such sites.

2. Planning and pollution control mechanisms are separate but complementary. The planning system should not be used to duplicate controls, which are the statutory responsibility of other bodies. The consultation document therefore complements the contaminated land regime under Part IIA of the Environmental Protection Act 1990 (EPA). However, the EPA regime only covers existing use of land. Issues regarding future uses generally fall to the Planning system to resolve because remediation will largely be achieved through planning control.

3. The draft consultation document makes it clear that, for planning purposes, it is immaterial whether contaminants arise from human activities or are present naturally. It is estimated that about 300,000 ha (750,000 acres) of UK land [i.e. about 1.2%] is contaminated. Most of this is in urban areas, however some rural areas are affected, for example, by brickworks and mineral workings, landfill and naturally occurring radioactive substances (e.g. radon). The draft document states, in paragraph 5, that ”the most economical way to deal with contaminated land will be by redevelopment and that appropriate release of previously developed land requires the potential for contamination to be considered”.

4. Waverley does not have a legacy of heavy industry and there are relatively few sites in the Borough, which are known to be contaminated. The most significant areas of land on which there is contamination are former gas works, landfill sites and the Cranleigh Brick and Tile Works at Knowle Lane, Cranleigh which is currently the subject of a planning application for “enabling” development.

5. The draft consultation document states that the responsibility for providing information on whether it is contaminated or not and the level of contamination lies with the developer. It is the Local Planning Authority’s responsibility, however, when determining an application for land, which might be contaminated, to consider whether the proposal takes proper account of the contamination. Detailed investigations, in consultation with the appropriate authorities (including the Environment Agency), may, therefore, have to be undertaken prior to the determination of an application and remedial measures may be required by condition/planning obligation. For these reasons, contamination is a material planning consideration.

6. The guidance recognises the deficiencies of the existing guidance. It aims to provide clearer and more detailed advice and seeks to ensure that the risks resulting from contamination are managed appropriately and that new contamination problems are not created.

7. The document has been written in line with the proposals contained within the Planning Green Paper and separates policy from advice/guidance.

Government Policy regarding Contaminated Land

8. The Government’s policy on contaminated land is set out in Annex 1 of Circular 2/2000 and identifies the following policy objectives:

to identify and remove unacceptable risks to human health and the environment;
to seek to bring damaged land back into beneficial use;
to seek to ensure that the cost burdens faced by individuals, companies and society as a whole are proportionate, manageable and economically sustainable.

Factors to be considered by developers when proposing development on contaminated land

9. The consultation document states that the developer is responsible for:

determining whether any proposed development will be affected by contamination and whether it will increase the potential for contamination on that site or elsewhere; and

satisfying the LPA that any contamination can be successfully remediated with the minimum adverse environmental effect to ensure the safe development and secure occupancy of any site.

10. The consultation document recommends that prior to submitting an application on land that may be contaminated, the applicants should have pre-application discussions with the LPA to identify the implications and necessary information to be submitted.


Factors to be considered by Local Planning Authorities when considering development proposals on contaminated land

11. The consultation document states that:

in most cases, environmental health departments are the enforcing authorities for the new contaminated land regime; LPAs are responsible for the control of development and the enforcement of conditions to ensure that development is appropriate in relation to all the relevant circumstances of the site and any contamination, the Environment Agency (EA) is a consultee on certain applications for development on land which may be affected by contamination; in preparing and revising their development plans (and Local Development Frameworks) LPAs o should steer development onto previously developed land;
o where that land may be contaminated, ensure that the contamination is identified and properly dealt with; and
o take into account any potential implications for land contamination. before granting planning permission, LPAs must ensure that full account is taken of the condition of the land concerned and that appropriate mechanisms are put in place to ensure that appropriate remediation is carried out to deal with unacceptable risk; LPAs should consider whether to include a question on contamination or historical use on the planning application form where extensive areas of previous industrial land are likely to come forward for redevelopment; where there is reason to suspect contamination and that contamination may substantially affect the development for which permission is being sought, LPAs should normally require a desk study to assess levels of contamination; Environmental Impact Assessments (EIAs), which are governed by separate legislation, will be required in certain circumstances to ensure that both direct and indirect significant environmental impacts are fully understood and taken into account; appropriate conditions should be attached to any planning permission to ensure that the development does not pose an unacceptable risk to humans, other ecological systems or properties, that unacceptable concentrations of contaminants are not left in place nor “pollutant pathways” left open.

Comment

12. The principle of sustainable development means that “brownfield” sites, including those affected by contamination, will increasingly be recycled into new uses. Such recycling provides an opportunity to deal comprehensively with threats posed by contamination.

13. Policy D1 of the Replacement Local Plan (currently subject to approval by the Council on 23rd April 2002) contains the broad policy approach to matters relating to contaminated land. This Policy states (inter alia) that:

The Council will have regard to the environmental implications of development and will promote and encourage enhancement of the environment……The Council will seek, as part of a development proposal, to resolve or limit environmental impacts. It will also seek remedial measures to deal with existing problems such as land contamination.

14. In its response to the Green Paper, the Council recognised the need to review and consolidate national policy and guidance. To this extent, the separation of “policy” from “guidance” in the consultation document is welcomed. However your officers are concerned that the policy context makes no reference to the wider national objectives. Whilst it is accepted that the majority of contaminated land lies within urban areas and that redevelopment is probably the most appropriate way of dealing with contamination, this is not always the case in rural areas, which are subject to Green Belt/countryside and other restraints. Officers therefore feel that the references in the document, in particular in paragraphs 5 and 10, to redevelopment being the most appropriate and economic way to deal with contamination, should be more clearly qualified by reference to other national policy objectives, particularly to the promotion of sustainable development and the protection of the green belt/countryside and environmental and nature conservation assets.

15. Your officers are also concerned that there is a lack of consistency in the language used in the EPA and in the draft consultation document, for instance in the use of such phrases as “significant risk”, “significant harm” and “unacceptable risk”. Greater consistency and a glossary of terms are therefore needed.

16. The guidance is more comprehensive than the previous advice in PPG23. However, although it recognises that some LPAs will want to devise their own criteria for identifying what issues should be addressed in considering applications affecting contaminated land, it would have been helpful if the draft document had included advice on what constitutes a proper site investigation (i.e. such as set out in BS10175: 2001 – Investigation of potentially contaminated sites – Code of Practice) or what details could be left to planning condition. This lack of advice may have an impact on performance targets as officers argue with developers about what information is required in order for applications to be considered, until such time as they prepare appropriate SPG.

17. Whilst it is appropriate that developers should be responsible for providing information on whether a site is contaminated or not and the level of contamination, the guidance should make it clear that this information should be provided by suitable persons. The science and associated technical procedures relating to the investigation of contaminated land are extremely complex and requires knowledge of several specialised disciplines. The lack of any guidance on who may constitute a suitable person is a serious omission as the consequences of getting judgements wrong could have major impacts on the surrounding area and on people’s lives.

18. Furthermore, it is not appropriate that developers should have the responsibility for determining whether any proposed development will be affected by contamination or whether it will increase the potential for contamination on that site or elsewhere. This responsibility will ultimately fall to the LPA in consultation with the Environmental Health Authority and the Environment Agency as the LPA has the responsibility for granting the planning permission, enforcing the conditions, ensuring that the land is remediated to an appropriate standard for its intended use and that it is properly maintained thereafter. However, the information that the relevant authorities need to make such a decision should be the responsibility of the developer. Thus the guidance needs to make clearer the distinction between the roles of the developer, the responsible person, the Local Authority and the Environment Agency. 19. Although the draft consultation document contains some useful guidance on planning conditions and planning obligations, it would be more helpful if it included some “model conditions”/draft Section 106 agreements which LPAs could either adopt or adapt.

20. The draft consultation lacks any guidance on what levels of remediation should be achieved and whether, in certain circumstances, lower levels of remediation may be appropriate, especially where redevelopment may give rise to other policy objections. This is particularly relevant to the issues raised by the current proposal for Cranleigh Brick and Tile Works.

21. The introduction to the draft consultation document states that “the Government considers that the draft guidance does not materially add to the requirements on developers or local planning authorities that are already in place through existing planning guidance”. Your officers do not agree and believe that the guidance will add to the workloads of both. From the LPA point of view it will require SPG on information to be submitted, the thresholds, which will apply, and the criteria that will be used in the determination of applications. Moreover, the further investigations required and the requests for information may well have impacts on performance targets.

22. Although there is already a question on the Waverley planning application form relating to historical use, it is thought that this would not be far-reaching enough to suggest to the applicant that site contamination may be an issue. There is also some ambiguity about when and how far-reaching such a question should be. Whilst it would not be appropriate for a question to be added to the application form, which would require a basic desk study for all applications, it may be appropriate for a question asking whether there was any known contamination due to previous uses or occupiers. The Government should give further consideration to this issue and indicate how it advises Local Authorities to cover this issue on planning application forms.

Conclusion

23. The officers’ principal concerns relate to ensuring that the policy objectives for dealing with contaminated land do not undermine other national policy objectives. The Officers also have the following additional concerns:

lack of consistency in the language used in the EPA and in the draft consultation document;

need for clarity for what constitutes a proper site inspection and need for clarity as to who is the "suitable person" for carrying these out;

needs for clearer distinction between the roles of the developer, the "suitable person", the Local Authority and the Environment Agency.
need for model conditions/draft Section 106 agreements;

need for guidance on in what circumstances lower levels of remediation may be appropriate;

need for recognition that the further work involved in dealing with land contamination issues may well add to the workloads of Local Authorities and developers; need for further consideration regarding the question on planning application forms. Recommendation

It is recommended that this report be referred to the Executive for consideration together with any comments or amendments suggested by this Committee.


Background Papers (DoP&D)

Development on Land Affected by Contamination: Consultation Paper on Draft Planning Technical Advice: DETR February 2002
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CONTACT OFFICERS:

Name: Peter Hartley Telephone: 01483 523297
E-mail: phartley@waverley.gov.uk

Paul Sheehan Telephone: 01483 523435
E-mail: psheehan@waverley.gov.uk






comms/o&s3/2001-02/077