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Assessment & Remediation of Land Affected by Ground
Contamination: Planning & Development
"Planning Policy Statement 23 (
PPS23
): Planning &
Pollution Control – Annex 2: Development on Land Affected by
Contamination” expands on the policy considerations the Government
expects Local Planning Authorities (
LPA
) to have in regard to
preparing policies for development plans and in taking decisions on
applications relating to land affected by contamination.
For planning purposes,
PPS23
states that the
assessment of risks arising from contamination and remediation
requirements should be considered on the basis of the current
environmental setting, the current land use, and the circumstances
of 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 to
that outlined in Part IIA of the Environmental Protection Act
(
EPA
)
1990: “Contaminated Land”.
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.
The full text of PPS23: Planning & Pollution Control, can be
found on the “Communities &
Local Government” website, or by
using the following links (links to external web sites):
Role of the Owner / Developer
Where development is proposed, the developer is responsible for
ensuring that development is safe and suitable for use for the
purpose for which it is intended. The developer is therefore
responsible for determining whether land is suitable for the
development proposals, or can be rendered suitable by remedial
action, or action to mitigate the risk to future site users.
In particular, the developer should carry out adequate
investigation to inform a risk assessment to determine:
- Whether the land is already affected by
contamination through source - pathway - receptor pollutant
linkages (i.e. is there contamination present, and is any human or
environmental receptor likely to be at risk?);
- Whether the development proposed will create
new linkages, e.g... create new pathways for existing contaminants
to existing or proposed receptors, or introduce new vulnerable
receptors; and;
- What action is needed to remove the
contamination source, or break the pathway in those linkages, avoid
creating new ones, to enable a safe development and future
occupancy of the site and neighbouring land.
A potential developer will need to satisfy the local authority
that unacceptable risk from contamination will be successfully
addressed through remediation without undue environmental
impact. This may include assessment works prior to, during
& upon completion of the development.
In doing so, a developer should be aware that actions or
omissions on his part could lead to liability being incurred under
Part IIA, e.g. where development fails to address an existing
unacceptable risk or creates such a risk by introducing a new
receptor or pathway or, when it is implemented, under the
Environmental Liability Directive (2004/35/EC).
Where an agreed remediation scheme includes future monitoring
and maintenance schemes, arrangements will need to be made to
ensure that any subsequent owner is fully aware of these
requirements and assumes ongoing responsibilities that run with the
land.
For more information on ground contamination in the development
control process, see the Councils Contaminated
Land Pages or the Hampshire
& Isle of Wight Contaminated Land Liaison Group Advice leaflet
for developers of brownfield land.
Role of the Local Authority
In most cases, local authorities are the enforcing authorities
for the contaminated land regime under Part IIA of the EPA 1990.
They have a duty to identify contaminated land within their area
and, except for certain categories, to decide what remediation is
required and ensure that it takes place.
The Local Planning Authority (LPA) is responsible under the
Planning Acts for the control of development, and In doing so, it
has a duty to take account of all material considerations,
including contamination.
It is the LPA’s role to plan for land uses that are appropriate
in the light of all the relevant circumstances, including known or
suspected contamination and to determine applications, including
applying and enforcing any necessary conditions to permitted
developments.
Such conditions may require that land is investigated & / or
remediated in the course of development to an appropriate standard,
taking account of its intended use, and that, if necessary, it is
properly maintained thereafter.
The building control department of the local authority (along
with the private sector approved inspectors) are responsible for
the operation and enforcement of the Building Regulations 2000 to
protect the health, safety and welfare of people in and around
buildings.
Building Control Regulations Approved Document C specifically
requires the protection of buildings and associated land from the
effects of contamination, to be applied (non-exclusively) in all
changes of use from commercial or industrial premises, to
residential property.
Role of the Environment Agency
The Environment Agency is the enforcing authority under Part IIA
for contaminated land, which has been determined as a "special
site.”, and is the competent authority for the implementation of
various water environment legislation (i.e. relating to
abstractions, discharges, resource management, habitats, and the
general protection of ground, surface & coastal waters)
The Agency is a statutory consultee under the General
Development Procedure Order 1995 on certain planning applications,
e.g. for development within 250m of notified landfill sites and
where land affected by contamination is identified to pose a
potential risk to controlled waters (including groundwater).
In practice, the statutory requirement to consult the
Environment Agency is extended to all land identified as being
potentially affected by contamination, in order to ensure that
issues related to the pollution of controlled waters are
appropriately considered in planning decisions
Certain remediation activities may also require an environmental
permit, or discharge consent for disposal of potentially
contaminated water. The Environment Agency is responsible for
administering both the Environmental Permitting Scheme, and issuing
Discharge Consents.
At the national level, the Agency also carries out technical
research and publishes scientific and technical advice relevant to
land contamination, notably including the Contaminated land
Exposure Assessment (CLEA) framework (for the protection of Human
Health), publishing of Soil Guideline Values (SGV), and producing
controlled waters risk assessment methodologies.
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