Background to Planning and Contaminated Land
The regulations covering contaminated land and the responsibilities of the government, local authorities, landowners, occupiers and other interested parties are set out in the Environmental Protection Act 1990 Part IIA.
The contaminated land regime in Part IIA was introduced specifically to address the historical legacy of land contamination. It focuses on the identification and remediation of land which is in such a condition by reason of contamination that it gives rise to significant harm or the significant possibility of significant harm to certain named receptors, or gives rise to pollution of controlled waters or the likelihood of such pollution. It applies where there is unacceptable risk, assessed on the basis of the current use (including any use that already has the benefit of planning permission but might not yet be implemented, including development permitted under the General Permitted Development Order 1995) and the relevant circumstances of the land. It is not directed to assessing risks in relation to a future use of the land that would require a specific grant of planning permission.
This is primarily a task for the planning system (in which contamination is a material planning consideration), which aims to control development and land use in the future. Consequently, for planning purposes, the assessment of risks arising from contamination and remediation requirements should be considered on the basis of both the current use and circumstances and its proposed new use. In most other respects, however, the underlying approach to identifying and dealing with risk, and the overall policy objective of safeguarding human health and the environment, are similar.
Guidance on how contaminated land is dealt with by the planning process was previously given in Policy Planning Statement 23:Planning and Pollution Control. This was withdrawn in March 2012 and was replaced by the National Planning Policy Framework (NPPF). The three main statements from the NPPF in relation to contaminated land are:
“…To prevent unacceptable risks from pollution and land instability, planning policies and decisions should ensure that new development is appropriate for its location. The effects (including cumulative effects) of pollution on health, the natural environment or general amenity, and the potential sensitivity of the area or proposed development to adverse effects from pollution, should be taken into account. Where a site is affected by contamination or land stability issues, responsibility for securing a safe development rests with the developer and/or landowner…”
“…sites should also be suitable for their new use taking account of ground conditions, pollution arising from previous uses and any proposals for land remediation…”
“…after remediation, as a minimum, the land should not be capable being determined as contaminated land under Part IIA of the Environmental Protection Act 1990…”
A wider range of contamination and receptors is relevant to planning because of its wider spatial perspective but the degree of harm or pollution relevant to planning and the approach to remediation are essentially the same, i.e. unacceptable risk in planning terms includes the risks addressed by Part IIA of the EPA 1990.
When a planning application is made for a site, the Environmental Protection department are requested to provide their comments on the risks from contamination, and if there is any evidence of the potential for the site to be affected by contamination, a contaminated land planning condition is attached. The development of the site is usually prohibited until this condition is discharged.
It is not necessary for the source of the contamination to be on the site, if the site is within 250m of in-filled land (landfills, in-filled ponds, in-filled railway cuttings etc.) this can trigger the contaminated land planning condition. Some local authorities where coal measures are present attach the contaminated land planning condition to all new developments due to the risk from mine gas.
The National Planning Policy Framework (NPPF) also states that if the development is a sensitive land use (housing, schools, hospitals, children’s play areas) that contamination should be assumed.
It is the responsibility of the developer to ensure that as a minimum, after carrying out the development and commencement of its use, the land should not be capable of being determined as contaminated land under Part IIA.
Commissioning a desk study is the first stage in the discharging of the contaminated land planning condition.
Stages of Discharging a Contaminated Land Planning Condition
There are potentially four stages to discharging a contaminated lands planning condition, which are briefly descried hereunder and more details are available on their individual pages.
Stage 1 – Phase I Desk Study Report
The aim of the desk study report (also known as a Tier 1 Assessment, Preliminary Risk Assessment etc. ) is to identify what pollution linkages are potentially present on a site.
A pollution linkage is made up of three parts, a source of contamination (potential at the desk study stage), a receptor (who will be using the proposed development) and a pathway (how the potential contamination will reach the receptor).
Where a pollution linkage is identified the probability of the linkage being present and the consequence of the linkage being present are assessed to determine if the pollution linkage warrants further assessment/works.
Where a Phase I Desk Study report indicates that there are potential pollution linkages on a site, recommendations for further works and remedial measures in-lieu of further works will be given.
A detailed description of a Phase I Desk Study Report and further details of our Phase I reports can be found here
Stage 2 – Phase II Site Investigation Report
Where the desk study report has identified potential pollution linkages, a Phase II site investigation will be required in order to demonstrate whether the linkages are present on the site. A site investigation is generally based on either trial pits or boreholes and may involve sampling of site soils, perched water, groundwater and soil gas.
If required monitoring installations will be installed on site and monitored for ground gases.
The Phase I and Phase II reports can be combined to form a Geoenvironmental Report (we would always advise to have the scope of any Phase II works agreed with by the planning authority prior to any fieldwork as this prevents the possibility of revisiting a site to undertake additional fieldwork).
A detailed description of a Phase II Site Investigation Report can be found here
Stage 3 – Phase IIIa Implementation Plan
Where the Phase II identified issue son the site or here the Phase I has recommended remedial works a method statement of how the remediation will be undertaken (source of imported materials, rates on analysis of imported materials, demonstration of depth of cover, gas protection measures etc.) will be required before site works start in order to demonstrate to the council how the remediation will be achieved and how the remediation will be demonstrated.
Stage 4 – Phase IIIb Completion Report
The completion report collates the evidence to demonstrate the remediation proposed in the Phase I and/or the Phase II report has been undertaken correctly.
More details of Phase III reports can be found here