Development of Potentially Contaminated Land and Sensitive End Uses
An Essential Guide for Developers
October 2013
Introduction
This guidance document has been produced to assist developers, their agents and consultants to identify the information required by the Local Planning Authorities (LPA) to determine planning applications on land that may be affected by contamination.
The National Policy Planning Framework (NPPF) states that as a minimum, after remediation the land should not be capable of being determined as contaminated land under Part IIA of the Environmental Protection Act 1990. Furthermore, that adequate site investigation information should be provided, prepared by a competent person.
No further technical guidance has been issued in this respect, however, guidance in Planning Policy Statement 23 ‘Planning and Pollution Control’ is still valid and may be referred to in the absence of any other technical guidance.
Responsibilities
It is the responsibility of the developer to follow good practice and identify the nature, scale and extent of land affected by contamination, and if required, undertake remediation work to ensure the land is suitable and safe for the proposed new use. This responsibility is laid down in the NPPF which clearly states ‘Where a site is affected by contamination or land stability issues, responsibility for securing safe development rests with the developer and/or landowner’.
It is the responsibility of the LPA to regulate and control new development. We recommend early discussions at the pre-planning stage with the LPA this will ensure that unnecessary objections or delays do not arise. The LPA needs enough information to be confident the site can be reasonably remediated before planning permission is granted. In general the LPA does not have the expertise within that section to make an assessment of land affected by contamination. This function generally sits with the relevant Environmental Protection Officer at the council. It is often the case that a developer or their advisors will be dealing directly with Environmental Protection who, whilst not being part of the LPA, will advise them accordingly.
The Environmental Agency (EA) is a statutory consultee in the planning process. The LPA will consult with the EA when considering proposals for a development on land where there is a potential risk to controlled waters. This may result in the EA making recommendations for site investigation, risk assessment and remedial works. However, it must be remembered it is the responsibility of the LPA to consider planning applications and discharge conditions.
The services of an environmental and/or geotechnical consultant will be required at all stages in the assessment, management and remediation of land that may be affected by contamination. The chosen consultant should be an appropriately qualified, competent professional as required by the NPPF. A development project is more likely to be successful, proceed with minimal delay and be cost effective if appropriately qualified experts with relevant environmental experience are used.
The selected consultant should have professional indemnity insurance.
Liaison with the local authority
Where practicable, applicants should arrange pre application discussions with the LPA and other regulators, where necessary. This is important in creating an efficient and open process where delays and misunderstandings are minimised and the site risk assessment can be incorporated into the development timetable at the outset.
What is required
We require that an assessment of risk is carried out by the applicant where development is proposed on land that is, or may be, affected by contamination (both man made and naturally occurring) and/or has a sensitive end use for example residential, school, nursery, etc. This assessment must form part of the information submitted in support of a planning application i.e. Before the application is determined.
Desk study/Phase I assessment
Planning applications should be accompanied by a desk based study with site walkover survey. Factual information should be collated and interpreted with reference to the Conceptual Site Model (CSM), risk assessment and a remedial options appraisal provided as a minimum.
The commercial searches (eg ‘Envirosearch’/’Homecheck’ reports) provided on the internet are not sufficient on their own to provide an assessment of contamination. Commercial searches do not include a walkover survey so have no reference to current site use (risks), omits natural contaminants and does not identify contaminated sites which have already been remediated.
The desk study and site walkover survey will assist us in determining the need for and scope of further investigation, the problems that may require remediation and whether remediation can be secured by means of planning conditions.
Further investigations and risk assessment will be needed unless this initial assessment clearly and reliably demonstrates that the risk from contamination is not significant.
Further investigation/Phase II assessment
Where significant risks are identified further investigation may be required prior to the planning application being determined. Remediation may not be practical and/or result in safe development on grossly contaminated sites to allow sensitive development to be allowed on all or parts of it. As such this may impact on the design and layout of the proposed development and to agree a fixed design and layout without adequate information would not be a reasonable, safe and cost effective approach to the development.
The LPA will reject reports and/or require further information in cases where work has not been carried out in accordance with best practice or fails to establish confidence in the findings and conclusions reached.
Further investigation
Where the submitted information has identified a level of risk, to meet the requirements of the LPA, planning permission may be granted subject to conditions requiring further investigation prior to the commencement of development. The scope of any further investigation will need to be agreed with the LPA prior to site work being undertaken.
This further investigation must fully assess the condition of a site, be both factual and interpretative. It should result in an updated CSM with remedial options appraisal, also known as remediation strategy/scheme, for consideration by the LPA.
Where this further investigation reliably demonstrates that the risk from contamination is not significant no further investigation or remediation is necessary.
The key requirements of this process are given in CLR11 - Model Procedures for the Management of Land Contamination which is available from the Environment Agency web site. The schematic flowcharts and supporting information detailing the stages of risk assessment, options appraisal and remediation strategies included in this document should be employed in assessments.
Remediation scheme
Where remediation is required a scheme shall be agreed with the LPA. The remedial works carried out in accordance with the agreed scheme unless agreed otherwise and the works verified by an independent third party such as an environmental engineer. It may include measures such as the removal of contamination, encapsulation of the contaminants, treatment of the contaminants or measures to break the contaminant linkages.
It should be noted that no assessment can inspect every section of the site and therefore should any unsuspected contamination be found, immediate contact should be made with the LPA.
Verification reporting and monitoring
Where contamination has been found and remediated, the developer will be required to submit a verification report. In certain circumstances it may be necessary for the developer to conduct post-completion monitoring. This should be undertaken to the approval of the LPA and results of the monitoring should be submitted for review.
The verification report should provide confirmation that all measures outlined in the approved remediation scheme have been successfully completed including, where appropriate, validation testing.
Discharge of planning conditions
To discharge land contamination conditions the LPA must be satisfied, at all the relevant stages, that satisfactory reports have been submitted to demonstrate that the development is suitable for use. On large schemes where development may be phased, progressive discharge of conditions may be possible provided a satisfactory verification report is received for each phase.
APPENDIX A - Assessing potential risks posed to controlled waters
Through the Town and Country Planning system, a Local Planning Authority (LPA) may consult the Environment Agency where there may be a risk that pollution of controlled waters may occur or may have occurred in the past (controlled waters are coastal waters, inland fresh waters and groundwater).
Why controlled waters need to be considered:
• Soil and rocks beneath your site can contain significant amounts of water which need protecting for water quality and resource purposes.
• Contamination can travel in water affecting human health and ecosystems both at your site and beyond.
• Development can mobilise existing contaminants through land, water and air and increase the risk of pollution, if not treated carefully.
• Groundwater in particular is not a boundary issue and should be considered at strategic ‘design’ stage.
• Government guidance via the planning process must be adhered to as well as Environment Agency guidance and Environmental Protection legislation.
Your Desk Study (Phase I Investigation) Report should show whether the historic or current use of the site is causing or has the potential to cause pollution. Water pollution can be thought of as:
The introduction of substances into water which may be harmful to human health, or to animals or plants that rely on the water; which causes damage to property; or which interferes with uses of that water (Environment Agency).
If your site has the potential to cause water pollution, a controlled waters risk assessment is needed as part of your further site investigation (Phase II Investigation). The observed levels of contaminants should be compared to appropriate water quality standards, for example environmental quality standards (EQS) or drinking water standards (DWS). Based on the results, further risk assessment or remediation may be required.
We recommend that developers should:
· Follow the risk management framework provided in CLR11, Model procedures for the management of land contamination, when dealing with land affected by contamination.
· Refer to the Environment Agency Guiding principles for land contamination for the type of information required in order to assess risks to controlled waters from the site. The local authority can advise on risk to other receptors, e.g. human health.
· Refer to the Environment Agency website at www.environment-agency.gov.uk for more information.
New activities that may pose risk to groundwater
New activities need to be deterred in certain areas based on their intrinsic hazard to groundwater. The hazard may result from a combination of the activity type, its duration and the potential for failure of controls. Close to sensitive receptors a precautionary approach is likely to be taken even where the risk of failure is low because the consequences may be serious or irreversible.
Examples of activities that may pose risk include, but are not limited to, landfill, waste management, discharges to ground and underground storage.
The following guidance is available on the Environment Agency website and contains information relating to the risk-based approach that should be followed:
Groundwater protection: principles and practice (GP3)
GP3 contains information on the protection and management of groundwater. It includes standalone chapters on groundwater, what it is and where it is found, groundwater pollution and groundwater resources. It also contains a section on the Environment Agencies position statements on a wide range of activities that may affect groundwater. GP3 also contains and technical and interpretative information.
APPENDIX B - Potentially contaminating land uses
A wide range of industries may historically have contaminated, or have the potential to contaminate the land they are sited upon (and neighbouring land) — The DOE Industry Profiles (see Appendix C) give further details.
· Smelters, foundries, steel works, metal processing & finishing works
· Coal & mineral mining & processing, both deep mines and opencast
· Heavy engineering & engineering works, e.g. car manufacture, shipbuilding
· Military/defence related activities
· Electrical & electronic equipment manufacture & repair
· Gasworks, coal carbonisation plants, power stations
· Oil refineries, petroleum storage & distribution sites
· Manufacture & use of asbestos, cement, lime & gypsum
· Manufacture of organic & inorganic chemicals, including pesticides, acids/alkalis, pharmaceuticals, solvents, paints, detergents and cosmetics
· Rubber industry, including tyre manufacture
· Munitions & explosives production, testing & storage sites
· Glass making & ceramics manufacture
· Textile industry, including tanning & dyestuffs
· Paper & pulp manufacture, printing works & photographic processing
· Timber Treatment
· Food processing industry & catering establishments
· Railway depots, dockyards (including filled dock basins), garages, road haulage depots, Airports
· Landfill, storage & incineration of waste
· Sewage works, farms, stables & kennels
· Abattoirs, animal waste processing & burial of diseased livestock
· Scrap yards
· Dry cleaning premises
· All types of laboratories
Other uses & types of land that might be contaminated include:
· Radioactive substances used in industrial activities not mentioned above – e.g. gas mantle production, luminising works
· Burial sites & graveyards
· Agriculture – excessive use or spills of pesticides, herbicides, fungicides, sewage sludge & farm waste disposal
· Naturally-occurring radioactivity, including radon
· Naturally-occurring elevated concentrations of metals and other substances
· Methane & carbon dioxide production & emissions in coal mining areas, wetlands, peat moors or former wetlands
APPENDIX C - Further information
Websites
Environment Agency:
http://www.environment-agency.gov.uk/research/planning/33706.aspx
Department for Environment, Food and Rural Affairs:
http://www.defra.gov.uk/environment/quality/land/
Department for Communities and Local Government:
https://www.gov.uk/government/organisations/department-for-communities-and-local-government
References
· British Standards Institution (2011) BS 10175:2011: Investigation of Potentially Contaminated Sites – Code of Practice. London: BSI
Online: http://shop.bsigroup.com/en/ProductDetail/?pid=000000000030205349
· British Standards Institution (2004) BS EN 1997-1:2004 Geotechnical design. General rules. London: BSI