BOROUGH OF POOLE

CABINET

22 JULY 2004

SHORE ROAD / FLAGHEAD CHINE BEACH

PART OF PUBLISHED FORWARD PLAN:

STATUS:

1. / PURPOSE OF THE REPORT
1.1 / To present the findings of an investigation conducted on my behalf by the Head of Consumer Protection Services into the events that culminated in material being placed on the beach between Shore Road and Flaghead Chine.
2. / RECOMMENDATIONS/DECISIONS REQUIRED
2.1
2.2
2.3
2.4
2.5 / Endorse the actions taken by officers since the 20th January 2004.
No sand from a land based source should be used for beach restoration. (This may result in future opportunities to contribute to beach restoration work that would be advantageous being missed. It is recommended that consideration be given to adjusting this policy to one that concentrated on quality standards and monitoring arrangements rather than the source of the material.)
All Service Units review their complaint and enquiry systems, tracking and performance monitoring. In the longer term it would be appropriate to co-ordinate this within “Customers First” but in the meantime each unit should assess the risks and introduce appropriate, temporary measures if necessary.
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The weekly planning application list to members together with the notifications to ward members is successfully engaging members in the planning process. It would be inappropriate to suggest an alteration or review of the system on the basis of one item. However, the Head of Planning Services may wish to note this matter for consideration in any future review of the system.
The lessons learned from this episode be incorporated in the corporate risk management framework which is currently being developed by the Head of Financial Services.
3. / BACKGROUND
3.1
3.2
3.3 / On 20th January 2004 officers of the Consumer Protection Services Unit inspected the beach between Shore Road and Flag Head Chine. This inspection revealed amounts of building materials amongst the sandy material placed within the area. A piece of building material that officers suspected contained asbestos was also discovered.
Analysis confirmed the material to be asbestos cement, a material commonly used in the construction industry prior to the 1980s.
Following consultation with, Service Unit Heads and the Portfolio Holder a prioritised sequence of action was agreed:-
a) The affected beach to be fenced off and appropriate rectification affected as soon as possible.
b) The public to be kept fully informed of activity.
c) The Health Authority and Environment Agency be fully engaged.
d) A full investigation into the events leading to the discovery of asbestos to be conducted.
e) The Head of Consumer Protection Services to lead.
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3.5
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3.8 / The discovery of asbestos required the whole of the deposited material to be treated as contaminated. Without pre-treatment this could have exposed the Council to potential costs of up to £150,000 for haulage and disposal.
In consultation with the Environment Agency and utilising an independent firm of environmental analysts a method of working was agreed. This involved pre-treatment by way of separation of all materials suspected of containing asbestos with haulage and disposal of the remainder of the material to an appropriately licensed disposal facility.
Advice was received from the Health Protection Agency regarding potential health risks and appropriate precautions implemented in line with best practice. Health and Safety Inspectors oversaw this assessment and approved the working practices.
The Environment Agency undertook an investigation into the matter from a regulatory perspective.
Having gained agreement to the methodologies and received appropriate consents, work to remove the material began on 27 January 2004 and concluded on 2 March 2004. In total some 3300 tonnes of material were removed including approximately 20 kg of asbestos cement. Additionally it is estimated that 240 tonnes of assorted building waste was removed and disposed of within the sandy material. The cost of pre-treating, loading, hauling and disposing of the material to the Council was £32,928.
4. / SEQUENCE OF EVENTS LEADING TO PLACEMENT OF MATERIAL ON THE BEACH BETWEEN SHORE ROAD AND FLAG HEAD CHINE
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4.18 / The development of flats at 7-13 Banks Road is currently being undertaken by Gleeson Homes. Various planning approvals dating to the mid 1990s have been granted, the last for 28 units, in January 2004.
Building Consultancy Services were appropriately notified of an intent to demolish three existing building on 27 January 2003 with a consent notice being issued on 3 February 2003. Demolition was completed by 11 March 2003. Gleeson Homes have provided an audit trail that demonstrates that under sub contract the demolition company satisfactorily surveyed, identified, removed and appropriately disposed of materials including some traditional building materials containing asbestos.
Civils Contracting Ltd were contracted by Gleeson Homes to undertake the ground works.
On 16 September 2003 a site meeting was held between an officer of Leisure Services and a representative of Civils Contracting Ltd. The purpose of the meeting was to discuss the use of certain material from the site for beach replenishment. The meeting was initiated by Civils Contracting Ltd who had been advised that planning permission was required prior to such an arrangement.
A provisional agreement was reached. The only written record of the nature of the arrangement between the two parties appears to be an e-mail dated 27 October 2003. This e-mail refers to a bond arrangement in the sum of £3000 to be paid by cheque.
A cheque (by way of bond) in the sum of £3000 was required by Leisure Services from Civils Contracting Ltd. This was held against the cost of any rectification should this be necessary. No financial risk assessment as to the appropriate value of such a “bond” was made.
Planning consent was sought by Leisure Services for the beach replenishment in an application dated 22 September 2003. The fee of £440 for the application was paid by Civils Contracting Ltd.
Leisure Services indicate that the Environment Agency was approached on an informal basis and no objection was raised. It has not been possible to confirm this. The Environment Agency was not required to be consulted as part of the formal planning process.
Two objections were received to the application. Both raised an objection to stony material being included referring to the previous replenishment.
Within an Environmental Assessment Screening Opinion Process dated 22 October 2003 the proposal is described as: ”…beach re-nourishment with sand dredged from the harbour….” This screening concluded that an Environment Impact Assessment was not required.
Planning Services have indicted that the description of materials to be used in the beach replenishment was an error but that the outcome of the assessment would have been unaltered had the correct description been on the documentation. They have confirmed that the source of the sand referred to in the Environmental Assessment Screening process would have no bearing whatsoever on the determination of the planning application or whether an Environmental Impact Assessment was required.
In addition Planning Services indicate it would not have changed the decision to deal with the matter under delegated powers.
The application was decided under delegated powers in accordance with the Council’s scheme of delegation on 23 October 2003.
The application appeared on the weekly planning list for week 22-26 September 2003 and was not called in by any elected member under the red carding arrangement. The listing appeared as “beach replenishment with sand between Shore Road and Flag Head Chine”.
Ward members also received an individual notification regarding the planning application in a letter dated 22 September 2003. The description of the application was as above.
Civils Contracting Ltd subcontracted the removal of the material from the site, its depositing and grading to Andrew’s Plant Hire and Contractors on a daily hire basis. No requirements as to quality or checking appear to have been imposed on this subcontractor. However a Director of the company has indicated that beach staff observed part of the process which involved a 25 tonne dumper truck and mechanical digger.
Prior to work commencing a minimum of 600mm was stripped from the Banks Road site surface and disposed of through appropriate waste routes. This is supported by documentation.
Work to place material on the beach commenced on 5 November 2003 with a halt called on 6 November. Work recommenced on 26 November and continued until 2 December. The halt to work occurred because of a de-watering problem. A rerouting was required to satisfy Environment Agency concerns.
Leisure Services have indicated that monitoring visits were made on 6, 14, 17 and 27 November and 12,15, 22 December 2003. The visit consisted of an examination by way of walking the beach. Additionally on 4 November the bond cheque was collected from the site in Banks Road. On this occasion a large sandy spoil heap was observed in the centre of the site awaiting removal to the beach. It is described by the Leisure Services officer as being “fine sand with no gravel/clay lenses exposed in the side of the excavation”.
No records of the visit were made but no problems were identified other than on the last occasion. Then, building waste material was observed and the contractors were required to remove and dispose of it.
Reference to the use of materials from previous developments for beach replenishment has been made by officers from Leisure Services and
replenishment using material dredged from the harbour has been successfully undertaken as recently as 2002/3.
Complaints relating to the placing of the materials upon the beach appear to have begun in November 2003 and continued. No formal record of complaints appears to exist within Leisure Services although it is accepted that a number were received. Third party e-mails have come forward as a consequence of the investigation and confirm that public concern was being expressed. Enquiries made by elected members who had received expressions of concern are similarly not recorded.
5. /

FINANCIAL AND LEGAL IMPLICATIONS

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5.4 / The cost to the Council of managing the contaminated material on the beach has been mitigated to a significant extent by the measures taken following the discovery of asbestos cement on 20 January. By fully engaging the Environment Agency in designing and agreeing the management methodologies, less expensive haulage methods and disposal routes have been accessed.
Whilst this is to be welcomed the final cost of £32,928 remains significant.
The Head of Legal Services has considered the available information regarding the agreement entered into between the Council and the contractors. The agreement , such as it is, clearly places the responsibility on the Council to vet and approve the materials placed on the beach, and this, coupled with the fact that the performance bond is limited to £3,000( which has been retained by the council) leads him to conclude that there is no reasonable prospect of the Council reclaiming these costs.
The Environment Agency has informed the council that whilst it considers the council may have been in breach of the Environmental Protection Act 1990 no further action is to be pursued. The warning letter indicates that enforcement action could result in prosecution when appropriate.
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6.8 / FINDINGS AND CONCLUSIONS
There is no evidence to suggest that the actions of officers within Leisure Services were other than an attempt to gain an improvement in beach protection levels at no cost to the Council. It is however impossible to conclude other than the initiative, whilst conceived with good intent, was given insufficient attention and mismanaged.
Despite having the advantage of hindsight the deposit of material from a development /building site on to one of Poole’s premier beaches should have alerted officers to potential risks. Whilst the source of the material would not preclude its re-use it should have led to a more detailed assessment of its suitability and regular detailed monitoring of the quality of the material.
Asbestos cement may not be readily recognisable by officers uninvolved in activity relating to it. However, no expertise is required to recognise other construction waste. This must call into question the quality and adequacy of the visits made to both the site and the beach. The detritus was evident to the casual observer and easy to uncover on the visit on the 20 January when asbestos cement and other waste was discovered.
It is evident from their actions that officers have not recognised either the legal framework for handling waste from a construction site or the level of financial risk the agreement represented.
The Environment Agency is of the view that the Council breached the Environmental Protection Act 1990. Whilst they have indicated that no prosecution will follow the warning letter brings clarity to the potential risk.
The level of bond required had no formal basis for its calculation and there is no evidence to indicate that advice or assistance was sought from elsewhere in the Council before it was set. Events have demonstrated the level to be inadequate.
The agreement entered into, whilst forming a formal contract, is inadequate for our purposes. The wording has undermined any realistic chance for the Council to recover its costs with regard to the remediation.
It must be concluded that the general level of risk associated with the agreement from a legal, environmental, financial and reputational perspective was not recognised.
Complaints from the public relating to the presence of waste building materials within the sandy material were almost immediate. These were not recorded and Leisure Services appear to have no mechanism to record or monitor complaints and enquiries from the public. Elected members’ enquiries were similarly not recorded although they were reassured that there was no reason for concern and that matters were in hand.
An error in the description of material was made on the Screening Opinion produced by Planning Services. However Planning Services have confirmed that the source of the sand would have had no effect upon the formal planning process including the use of delegated powers which is fully in line with current policy.
The mechanisms to alert members to planning applications via the weekly list and direct mail to ward councillors were followed. However, the description used, whilst correct from a planning perspective, was unlikely to alert members in the same manner as a description of the source of the sand may have done.
There is ample evidence within the Council of officers improving services via innovative thinking, the development of novel working methods and a partnership approach. It is important that in reacting to one incident, however serious, the response does not deter future innovation being encouraged within an appropriate safeguards.
As a result of this investigation I asked a Policy Director to consider whether or not disciplinary action should be taken and an appropriate action, in accordance with the Council’s Disciplinary Procedure and Rules has now been concluded.

JOHN McBRIDE