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Regulation & Guidance

Judicial Review Appeal with Potentially Far Reaching Implications for Contaminated Land Rejected

In summary we can breath a sigh of relief and carry on as before with a system that allows contaminated land to be dealt with by planning conditions.

An appeal for judicial review was made against a Derbyshire council’s consent for a 200-home development less than 100m from a former landfill. The points of appeal in a layman’s summary were a contention that the contaminated land issues had not been adequately addressed. The appeal was rejected after concluding that there was no obligation for any potential contamination of the application site to be assessed and removed before approval was granted.

Environment Agency update on Land Contamination Risk Management (LCRM) guidance

A major update was planned but due to Covid 19 has been delayed. We have received the following email:

MESSAGE FROM ENVIRONMENT AGENCY – PLEASE SHARE.  Unfortunately I am not able to answer any specific follow on questions and cannot give a precise publication date as the publishing lead within the EA has to prioritise coronavirus work.

Dear All

In June 2019, the Environment Agency (EA) published an update to the Model procedures for the management of land contamination (CLR11).

Following the feedback, the EA were due to republish the revised Land contamination: risk management (LCRM) in early 2020.

Given the current coronavirus situation, the EA have decided not to republish a major update.  The time is not right.

Interim update

The EA are however, going to publish an interim update. This includes:

1.     Updated text on the requirements for MCERTS.

2.     Additional  text on the use of in situ testing and rapid measurement techniques (RMTs).

The change to the MCERTS text clarifies that it is only required by the EA on sites that they regulate.

The text on RMTs is not new. It is a part of the MCERTS guidance and in a former position statement and in situ testing is briefly mentioned in CLR11. The EA has updated this text to make it clear these tests subject to meeting other requirements, can be used.

The current coronavirus situation is one of the reasons for publishing the interim update. The use of in situ testing and RMTs may help relieve the pressure from laboratories affected by the current situation.

The EA will publish the interim update as soon as the GOV.UK publishing resource is available.

Reducing Risk & Preventing Claims on Complex Brownfield Residential Sites

Car Parts found in the garden topsoil of a recently occupied development

The title of a very informative article in the September/October AGS Magazine. If you want to take advantage of the opportunities or avoid the risks of contaminated land then this article is worth a read.

It helps to underline the fact that for a successful project contaminated land has to be addressed as an integrated part of the project and not an after thought. The latter approach often leads to delays and additional costs.

For more detailed advice we would also recommend the CIRIA guidance for small brownfield sites and contaminated land, A guide to small brownfield sites and land contamination (C773) which provides clarity and greater confidence to those looking to develop small brownfield and potentially contaminated land sites. The guide is available to NHBC members via their website.

Environment Agency updated land contamination guidance

The Environment Agency (EA) has published an update to the Model procedures for the management of land contamination (CLR11).

The updated online guidance is called: Land contamination: risk management (LCRM).

The EA is asking for feedback on the technical content and structure by 5 December 2019.

The current guidance, CLR11 was introduced in 2004 and has never been updated.

The scope, purpose and the framework of LCRM remains the same as the old CLR11 . The reformed content:

  • represents up-to-date government guidance on land contamination risk management
  • is intended to be accessible for people with disabilities – for example, be usable with assistive technology like screen readers
  • is intended to be navigable, concise, clear and understandable to all
  • is web-based, easier to manage, maintain and keep up to date
  • is now more user focussed, shorter and easier to understand
  • is clear on what you have to do and where to find out more
  • is aimed at people that might be doing this for the first time as well as experienced professionals
  • is available online

The technical language, terminology and content has been updated, explained and retained where necessary.  Repetition and general background information has been removed so that the EA can meet GOV.UK publishing requirements.

An End to Unnecessary Pre-Commencement Conditions?

A necessary evil or an unnecessary evil, whatever your view, planning conditions are part and parcel of the challenges of development. From the 1st October, an update to the Town and Country Planning Act may help to ease the pain, it will make it mandatory for Local Planning Authorities (LPAs) to liaise with applicants over the wording of pre-commencement conditions. Whilst it may not have gained as much publicity as the revised NPPF, this small legislative change is still a potentially significant shift in the operation of the planning process.

These changes mean that a LPA will be required to provide an applicant with the suggested pre-commencement conditions prior to determining an application. Applicants must be given at least 10 working days to provide a “substantive response”, only after this can an application be determined.

Potentially, great news for developers and applicants who will now hopefully be given a meaningful say in the drafting of pre-commencement conditions. Planning officers are only human like the rest of us and under pressure mistakes are sometimes made. This should stop drafting errors, duplicates or wrong conditions being imposed on planning consents that all result in delays to delivery. Contaminated land conditions, with their multiple stages seem particularly vulnerable to confusion as to what can reasonably be undertaken pre-commencement. It is also hoped that this will rationalise the pre-commencement conditions thereby saving time and money.

There are potential benefits for LPAs as it forces a review of standard pre-commencement conditions to ensure they are still; necessary, enforceable, precise and reasonable, it should also help to speed up decision making. LPAs will need to review their standard conditions and put procedures in place to ensure that applicants are given notice of proposed pre-commencement conditions in a timely manner.

These legislative changes will have to be factored into determination timeframes and it would be prudent of applicants to ask for conditions early (if possible) to avoid last minute delays. If you are an applicant or agent, it may be worthwhile contacting planning officers to confirm they are aware of this change to avoid any surprises.

We welcome this change, however, only time will tell whether this will become just another tick the box exercise or whether this will facilitate meaningful dialogue about the suitability of pre-commencement conditions, reduce the number of pre-commencement conditions and ultimately speed up delivery.

While the Government’s intention was to reduce the time lag between grant of planning permission and site start, will the law of unintended consequences mean that it will simply delay the issue of the planning permission?

RTPI Advocates Environmental Devolution Post Brexit

The repatriation of powers solely to Whitehall after Brexit is not enough to uphold existing planning and environment related EU directives, the implementation of which are highly devolved, the RTPI says.

Powers need to be repatriated to Scotland, Wales and Northern Ireland in order for each nation to have the authority and obligations to directly implement devolved functions carried over from existing EU directives such as those covering waste, water, habitat and air pollution, according to RTPI’s response to a parliamentary inquiry into devolution and Brexit.

As a result the RTPI is calling for the introduction of an enforcement body to replace the EU – with a base framework agreed by all the devolved administrations first. This would ensure continuity in policies and the commitment to address long-term issues and take action if policies are not implemented.

RTPI’s head of policy, research and practice Richard Blythe said: “In order to maintain and improve the environmental standards we are renowned for, we must empower the nations of the UK to continue to meet agreed environmental outcomes in their own way, so they can take account of the local context.

“A new body should be established to oversee this and hold nations to account if necessary. We think this approach will give the UK the best chance of continuity in environmental policy and maintaining of quality and standards.”

Read the RTPI’s written evidence to the Public Administration and Constitutional Affairs Committee on Devolution and Exiting the EU Inquiry.

The London Plan; The Spatial Development Strategy for Greater London

The Mayor has published a draft for public consultation, about which he says “So this London Plan sets out a new way of doing things, something I am calling Good Growth.” If you have any comments the consultation period runs to 2 March 2018.

The report has quite a lot to say about housing and the use of brownfield sites.

Efficient Land Use

In a section titled “Making the best use of land” the report points out that “London’s population is set to grow from 8.9 million today to around 10.8 million by 2041… This rapid growth will bring many opportunities, but it will also lead to increasing and competing pressures on the use of space. To accommodate growth while protecting the Green Belt, and for this growth to happen in a way that improves the lives of existing and new Londoners, this Plan proposes more efficient uses of the city’s land.”

The report then develops the theme of more efficient land use:

“1.2.2 The key to achieving this will be taking a rounded approach to the way neighbourhoods operate… This will mean creating places of higher density in appropriate locations to get more out of limited land, encouraging a mix of land uses, and co-locating different uses to provide communities with a wider range of services and amenities.

1.2.3 The benefits of this approach are wide-ranging… High-density, mixed use places support the clustering effect of businesses known as ‘agglomeration’, maximising job opportunities… They are places where local amenities are within walking and cycling distance, and public transport options are available for longer trips, supporting good health, allowing strong communities to develop, and boosting the success of local businesses.

1.2.4 Making the best use of land means directing growth towards the most accessible and well-connected places, making the most efficient use of the existing and future public transport, walking and cycling networks…

1.2.5 All options for using the city’s land more effectively will need to be explored as London’s growth continues, including the redevelopment of brownfield sites and the intensification of existing places, including in outer London. New and enhanced transport links will play an important role in allowing this to happen, unlocking homes and jobs growth in new areas and ensuring that new developments are not planned around car use…

Policy GG2 Making the best use of land

To create high-density, mixed-use places that make the best use of land, those involved in planning and development must:

A Prioritise the development of Opportunity Areas, brownfield land, surplus public sector land, sites which are well-connected by existing or planned Tube and rail stations, sites within and on the edge of town centres, and small sites.

B Proactively explore the potential to intensify the use of land, including public land, to support additional homes and workspaces, promoting higher density development, particularly on sites that are well-connected by public transport, walking and cycling, applying a design–led approach.

C Understand what is valued about existing places and use this as a catalyst for growth and place-making, strengthening London’s distinct and varied character.

D Protect London’s open spaces, including the Green Belt, Metropolitan Open Land, designated nature conservation sites and local spaces, and promote the creation of new green infrastructure and urban greening.

E Plan for good local walking, cycling and public transport connections to support a strategic target of 80 per cent of all journeys using sustainable travel, enabling car-free lifestyles that allow an efficient use of land, as well as using new and enhanced public transport links to unlock growth.

F Maximise opportunities to use infrastructure assets for more than one purpose, to make the best use of land and support efficient maintenance…

Delivering the housing London needs

1.4.5 To meet the growing need, London must seek to deliver new homes through every available means. Reusing large brownfield sites will remain crucial, although vacant plots are now scarce, and the scale and complexity of large former industrial sites makes delivery slow. Small sites in a range of locations can be developed more quickly, and enable smaller builders to enter the market. Building more housing as part of the development of town centres will also be important, providing homes in well-connected places that will help to sustain local communities…

Increasing housing supply

Policy H1 urges that: boroughs should optimise the potential for housing delivery on all suitable and available brownfield sites through their Development Plans and planning decisions… Boroughs should proactively use brownfield registers and permission in principle to increase planning certainty for those wishing to build new homes…

Small Sites

Under Policy H2 Small sites the report says that: Boroughs should increase planning certainty on small sites by:

1) identifying and allocating appropriate small sites for residential development

2) listing these sites on their brownfield registers

3) granting permission in principle on specific sites or preparing local development orders…

Vacant building Credit

In section 4.9.1 there is a reminder that: “In 2014 the Government introduced a Vacant Building Credit (VBC), which applies to sites where a vacant building is brought back into any lawful use, or is demolished to be replaced by a new building. The VBC reduces the requirement for affordable housing contributions based on the amount of vacant floor space being brought back into use or redeveloped. This has significant implications for delivery of affordable housing in London where a high proportion of development is on brownfield land where there are existing buildings.”

Download the plan

Permission in Principle

New powers enabling local planning authorities (LPAs) in England to grant planning ‘permission in principle‘ (PiP) for new housing on certain categories of land will speed up the delivery of new homes, the government has advised.

LPAs are now required to produce and maintain up-to-date, publicly available registers of local brownfield land available for housing. Land listed in ‘part 2’ of these new brownfield land registers will be the first category to benefit from automatic PiP for housing-led development, before the new power is rolled out to other categories of land later this year.

The registers are to be split into two parts. Part 2 of the register should list land which has been allocated by the LPA for residential development following set procedures. This is the land to which PiP will apply.

PiP is designed to separate decision-making on issues such as land use, location and amount of residential development from matters of technical detail, thereby reducing opportunities for delay to new housing development during the planning process. Where PiP has been granted, a scheme will receive full planning permission once the LPA has consented to the technical details. The acceptability of the ‘in principle’ issues cannot be reopened at the technical stage. Once granted, PiP for a site will last for five years unless the LPA specify otherwise.

Statutory guidance for local authorities will be published by June 2017, and will explain the role of brownfield registers and PiP in more detail, according to the government.

Not all the legislation and guidance is in place for PiPs and it remains to be seen how effective they will be in accelerating permissions.

ISO 19204:2017 Soil quality – Procedure for site-specific ecological risk assessment of soil contamination (soil quality TRIAD approach)

The scope on the British Standard website states:

“This document describes in a general way the application of the soil quality TRIAD approach for the site-specific ecological risk assessment of contaminated soils. In detail, it presents in a transparent way three lines of evidence (chemistry, ecotoxicology and ecology) which together allow an efficient, ecologically robust but also practical risk assessment of contaminated soils. This procedure can also be applicable to other stress factors, such as acidification, soil compaction, salinization, loss of soil organic substance, and erosion. However, so far, no experience has been gained with these other applications. Therefore, this document focuses on soils contaminated by chemicals.”

Brownfield Registers

Councils in England and Wales are to get new tools to speed up the development of derelict and underused land for new homes, Housing and Planning Minister Gavin Barwell has advised.

Brownfield registers were piloted in 2016, when 73 local planning authorities from across the country pioneered the measures.

All local authorities in England and Wales will now have to produce and maintain up to date, publicly available registers of brownfield sites available for housing in order to help house builders to quickly identify suitable brownfield sites.

Communities will be able to highlight local derelict or underused building sites that are primed for redevelopment thereby encouraging inward investment and increase the number of new homes in the area.

‘We need to build more homes in this country so making sure that we re-use brownfield land is crucial. We want to bring life back to abandoned sites, create thousands more homes and help protect our valued countryside. These new registers will give local authorities and developers the tools to do this,’ Barwell stated.

 

New asbestos and soil best practice guidance from CIRIA

New guidance on soils that have the potential to contain asbestos has been published by CIRIA

It provides a practical framework to help minimise the health risks and liabilities when asbestos-containing soils (ACS) are encountered. The summary on the CIRIA website states:

“This site guide gives advice to all site workers who may come into contact with, or are required to manage, soils that have the potential to contain asbestos (eg groundworks/earthworks contractors, ground investigation contractors/supervisors, consultants, waste handlers). It provides a framework to help minimise the potential health risks and associated liabilities when asbestos-containing soils (ACS) are encountered on site. It also focuses on practical management of ACS in field conditions and builds on the guidance from Nathanail et al (2014) which sets out the risk assessment process and risk management framework for asbestos in soils.”

The National Quality Mark Scheme for Land Contamination Management (NQMS)

The National Quality Mark Scheme for Land Contamination Management (NQMS), is set to be launched on 9 January 2017.nqms-logo

Not sure what it is and what it’s supposed to achieve, find out at the CL:AIRE website.

Will it provide reassurance and certainty for clients or just be another hurdle to leap at extra cost? Is it an attempt by the industry at self-regulation or a job creation scheme for the boys?

At the moment the answers are about as clear as they are on Brexit. There are wide variations in the standard of reports produced but is the way to address the issue? Will it just mean that responsible clients, who are already employing competent consultants pay extra, while those who think lowest cost is best regardless of all else will continue as before, quite unaware even of the scheme’s existence?