Guidance

Land affected by contamination

Provides guiding principles on how planning can deal with land affected by contamination.

Land affected by contamination

Why should local planning authorities be concerned about land contamination?

Failing to deal adequately with contamination could cause harm to human health, property and the wider environment. It could also limit or preclude new development; and undermine compliance with European Directives such as the Water Framework Directive.

See related policy:

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Is dealing with land that may be affected by contamination just a planning matter?

When dealing with land that may be affected by contamination, the planning system works alongside a number of other regimes including:

  • The system for identifying and remediating statutorily defined contaminated land under Part 2A of the Environmental Protection Act 1990. The government has published statutory guidance on Part 2A which concentrates on addressing contaminated land that meets the legal definition and cannot be dealt with through any other means, including through planning.
  • Building Regulations, which require reasonable precautions to be taken to avoid danger to health and safety caused by contaminants in ground to be covered by buildings and associated ground.
  • Environmental Permitting Regulations, under which an Environmental Permit from the Environment Agency is normally required to cover the treatment and/or redeposit of contaminated soils if the soils are ‘waste’.

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What is planning’s contribution?

The contaminated land regime under Part 2A of the Environmental Protection Act 1990 provides a risk based approach to the identification and remediation of land where contamination poses an unacceptable risk to human health or the environment. The regime does not take into account future uses which could need a specific grant of planning permission. To ensure a site is suitable for its new use and to prevent unacceptable risk from pollution, the implications of contamination for a new development would be considered by the local planning authority to the extent that it is not addressed by other regimes.

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When is contamination likely to be present?

Contamination is more likely to arise in former industrial areas but cannot be ruled out in other locations including in the countryside (eg by inappropriate spreading of materials such as sludges, or as a result of contamination being moved from its original source). In addition, some areas may be affected by the natural or background occurrence of potentially hazardous substances, such as radon, methane or elevated concentrations of metallic elements.

Only a specific investigation can establish whether there is contamination at a particular site, but the possibility should always be considered particularly when the development proposed involves a sensitive use such as housing with gardens, schools or nurseries. There are various sources of information that can be drawn on to help indicate whether land could be contaminated.

Sources of information can vary according to previous investigations and land reclamation schemes but useful sources to consider include:

  • Local authorities’ own survey information; including information held and collected in connection with Part 2A of the Environmental Protection Act 1990 (this could include information about sites that have been inspected and not determined to be ‘contaminated land’ within the terms of the Act but where new development could change the level of risk). There may also be information about land affected by contamination held by other parts of a local authority, for example by building control, regeneration teams, highways and engineering.
  • River Basin Management Plans published by the Environment Agency, including ‘protected areas’, which are shown in Annex D of each plan.
  • Information about previous land uses contained in the National Land Use Database, in commercial databases, land condition records or in records held by the Environment Agency or the British Geological Survey (eg the location of ‘made ground’, the results of broad scale geochemical surveys or radon potential maps).
  • Local authority planning department records, including relevant Environmental Statements that may include updated baseline assessments.
  • Information on the most common industrial activities and the risk of contamination is in Volume 2, Annex 3 of Guidance for the safe development of housing on land affected by contamination, published by the Environment Agency, NHBC and CIEH. More information is also available from industry profiles published by the Environment Agency.

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What is the role of Local Plans in considering contamination?

Consideration of land contamination in Local Plans will vary between places and the type of issues that the plan needs to cover, but it can be helpful to:

  • consider a strategic, phased approach to dealing with potential contamination if this is an issue over a wide area, and in doing so, recognise that dealing with land contamination can help contribute to achieving the objectives of EU directives such as the Water Framework Directive;
  • use sustainability appraisal to shape an appropriate strategy, including through work on the ‘baseline’, appropriate objectives for the assessment of impact and proposed monitoring;
  • allocate land which is known to be affected by contamination only for appropriate development – and be clear on the approach to remediation;
  • have regard to the possible impact of land contamination on neighbouring areas (eg by polluting surface water or groundwater); and
  • be clear on the role of developers and requirements for information and assessments.

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Are concerns about land contamination relevant to neighbourhood planning?

Concerns about land contamination could be relevant to neighbourhood planning and it is important to consider the possibility of land being affected by contamination when drawing up a Neighbourhood Plan or considering a Neighbourhood Development Order. The local planning and environmental health departments should be able to advise on whether land contamination could be a concern.

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What is the starting point for an applicant bringing forward a proposal for a site that could be contaminated?

Early engagement with the local planning and environmental health departments, particularly if the land is determined as contaminated land under Part 2A of the Environmental Protection Act 1990, will clarify what assessment is needed to support the application and issues that need to be considered in the design of a development, for example how land affected by contamination can be made compatible with sustainable drainage.

The Environment Agency will also have an interest in the case of ‘special sites’ designated under Part 2A of the Environmental Protection Act 1990 and all sites where there is a risk of pollution to controlled waters. Remediation will need to meet their requirements. The developer should also check whether an environmental permit is required before development can start.

The concerns on land contamination will sit alongside a wider set of considerations that the planning system will look at. Details about the broad steps a local planning authority should follow.

If there is a reason to believe contamination could be an issue, developers should provide proportionate but sufficient site investigation information (a risk assessment) to determine the existence or otherwise of contamination, its nature and extent, the risks it may pose and to whom/what (the ‘receptors’) so that these risks can be assessed and satisfactorily reduced to an acceptable level. Defra has published a policy companion document considering the use of ‘Category 4 Screening Levels’ in providing a simple test for deciding when land is suitable for use and definitely not contaminated land. A risk assessment of land affected by contamination should inform an Environmental Impact Assessment if one is required.

The risk assessment should also identify the potential sources, pathways and receptors (‘pollutant linkages’) and evaluate the risks. This information will enable the local planning authority to determine whether further more detailed investigation is required, or whether any proposed remediation is satisfactory.

At this stage, an applicant may be required to provide at least the report of a desk study and site walk-over. This may be sufficient to develop a conceptual model of the source of contamination, the pathways by which it might reach vulnerable receptors and options to show how the identified pollutant linkages can be broken.

Unless this initial assessment clearly demonstrates that the risk from contamination can be satisfactorily reduced to an acceptable level, further site investigations and risk assessment will be needed before the application can be determined. Further guidance can be found on the Environment Agency website.

Note that remediation or site investigation activities themselves, including field trials, may require planning permission if not carried out as part of a development, and in some cases may also need environmental permits.

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Revision date: 12 06 2014 See previous version

Does an outline application require less information?

The information sought should be proportionate to the decision at the outline stage, but before granting outline planning permission a local planning authority will, among other matters, need to be satisfied that:

  • it understands the contaminated condition of the site;
  • the proposed development is appropriate as a means of remediating it; and
  • it has sufficient information to be confident that it will be able to grant permission in full at a later stage bearing in mind the need for the necessary remediation to be viable and practicable.

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Should planning permission be refused if there are concerns about land contamination?

Local planning authorities should work with developers to find acceptable ways forward if there are concerns about land contamination. For example, planning permission can be granted subject to conditions and/or planning obligations can be sought in the light of the information currently available about contamination on the site and the proposed remediation measures and standards. Responsibility for securing a safe development rests with the developer and/or landowner.

However, local planning authorities should be satisfied that a proposed development will be appropriate for its location and not pose an unacceptable risk.

Using planning conditions

Local authorities can use planning conditions, where the relevant tests are met, to ensure that development (other than that required to be carried out as part of an approved scheme of remediation) should not commence until the identified stages in delivering a remediation scheme have been discharged. These stages and the factors to consider in framing appropriate planning conditions include:

  • site characterisation – what is required, including what sort of survey, assessment and appraisal, by whom and how the work is to be presented;
  • submission of the remediation scheme – what it should include;
  • implementation of the approved remediation scheme – notification to the local planning authority of when the works will start, validation that the works have been carried out and reporting of unexpected contamination; and
  • monitoring and maintenance – what is required and for how long.
Using planning obligations

Planning obligations could be used in a number of situations, for example:

  • to ensure that any necessary offsite treatment works (eg the installation of gas-migration barriers, water treatment or monitoring arrangements) are put in place;
  • to restrict the development or future use of the land concerned; or
  • for payments to the local planning authority, for example, for on-going monitoring, maintenance, or as a bond to cover the contingency of future action triggered by the monitoring.
Unacceptable risk

Defra has published statutory guidance to help identify and deal with land which poses unacceptable levels of risk under the Part 2A of the Environmental Protection Act 1990 regime for remediating statutorily defined contaminated land. Local planning authorities will want to have regard to this guidance alongside other considerations including the Water Framework Directive objectives and other matters that could affect the amenity of a site and its future occupants. (There could, for example, be contaminants present at levels that could cause nausea, headaches, odour/nuisance to people, or harm to non-protected species of plants and animals.) After remediation, as a minimum, land should not be capable of being determined as contaminated land under Part 2A.

More stringent standards of remediation than those under Part 2A apply to the management of the risks posed by man-made radioactive substances as a result of redevelopment for a new use. Public Health England has published technical guidance on recovery from chemical incidents and DECC has published statutory guidance on land affected by radioactive contamination. Public Health England has also published guidance on areas affected by radon and the control measures available for new development.

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How do considerations of land remediation fit into development management?

Flowchart

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Published 12 June 2014