Advice for Site Developers
If a development site appears to be at risk from contamination (based on historic maps, and other data sources held by us), then this may become a concern if a planning application is made. As part of the Local Planning process, conditions may be applied to a granted Planning Permission that requires the site to be investigated for contamination.
Specifically, it is no longer permissible for a site passing through the planning process to be contaminated. After the planning process is completed, a site should not be capable of being determined as Contaminated Land (as defined by Part 2A of the Environmental Protection Act 1990), based on the intended land use. This is referred to in Planning Policy Statement 23, paragraph 2.51. It is in the developer/site owners best interests to ensure all contamination is dealt with responsibly and effectively, even if the intended development does not require Planning Permission.
Note that a site does not have to be intended for development for land contamination to be a problem. There is a legal framework which can be used to bring any site into a satisfactory state - see below.
Risks of Contamination and the "Suitable for Use" Approach
The “suitable for use” approach focuses on the risks caused by land contamination. The approach recognises that the risks presented by any given level of contamination will vary greatly according to the use of the land and a wide range of other factors, such as the underlying geology of the site. Risks therefore need to be assessed on a site-by-site basis.
The “suitable for use” approach then consists of three elements:
(a) ensuring that land is suitable for its current use – in other words, identifying any land where contamination is causing unacceptable risks to human health and the environment, assessed on the basis of the current use and circumstances of the land, and returning such land to a condition where such risks no longer arise (“remediating” the land); the contaminated land regime (Part 2A) provides a legal structure to achieve this;
(b) ensuring that land is made suitable for any new use, as planning permission is given for that new use – in other words, assessing the potential risks from contamination, on the basis of the proposed future use and circumstances, before official permission is given for the development and, where necessary to avoid unacceptable risks to human health and the environment, remediating the land before the new use commences; this is the role of the town and country planning and building control regimes; and
(c) limiting requirements for remediation to the work necessary to prevent unacceptable risks to human health or the environment in relation to the current use or future use of the land for which planning permission is being sought – in other words, recognising that the risks from contaminated land can be satisfactorily assessed only in the context of specific uses of the land (whether current or proposed), and that any attempt to guess what might be needed at some time in the future for other uses is likely to result either in premature work (thereby risking distorting social, economic and environmental priorities) or in unnecessary work (thereby wasting resources).
Within the “suitable for use” approach, it is always open to the person responsible for a site to do more than can be enforced through regulatory action. For example, a site owner may plan to introduce at a future date some new use for the land which would require more stringent remediation, and may conclude that, in these circumstances, it is more economic to anticipate those remediation requirements. However, this is a judgement which only the person responsible for the site is in a position to make.
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