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Contaminated Land and planning

Advice for householders and developers on how land contamination should be dealt with as a part of the planning process.

pdf icon View Land Contamination and Planning Advice Note [47kb]

Essex Contaminated Land Consortium, which consists of representatives from all Essex local authorities, has produced an informative guide. This document aims to clarify and ensure consistency in the process of investigation and remediation of contaminated land.

pdf icon View Land Affected by Contamination Technical Guidance [1Mb]

Frequently Asked Questions

Q Why do I need to consider contamination?

A The NPPF is a material consideration in planning decisions. It requires (amongst other things) that new development should not contribute to, be put at unacceptable risk from, or be adversely affected by, unacceptable levels of pollution and that where appropriate, remediation should be carried out. The effects of pollution on health should be taken into account. The site must be suitable for its new use, taking account of ground conditions, including natural hazards or former activities such as mining, pollution arising from previous uses and any proposals for mitigation including land remediation or impacts on the natural environment arising from that remediation. Please see the NPPF for full details:

Q When do I need to consider contamination for my development?

A When the development is on land which is known to be contaminated, potentially contaminated (or suspected), or where the proposed end use is vulnerable (sensitive). In these cases, an "appropriate contamination assessment" should be submitted with your application. This is reflected in the questions asked about contamination on the National Standard Planning Application Form ("1APP").

Land which is known to be contaminated includes land known to be affected by contamination from another site, as well as known contamination on the site itself.

Land where contamination is suspected includes all or just part of the site. This would include a development on or near land which has had a previously potentially contaminative use, even if there are no known land contamination issues.

Q What is a "Vulnerable" or "Sensitive" use?

A This would include any residential dwelling, school, nursery, hospital, allotment gardens, parks or similar.

Q What if my development is for a vulnerable use, but there is no known or suspected contamination on my land?

Colchester Borough Council wishes to keep the financial burden on developers to a minimum, whilst continuing to ensure that there are no unacceptable risks to sensitive users: we also recognise the need for risk assessment to be proportionate. Consequently, there will be no automatic requirement to provide Phase 1 information with the application (although you may choose to commission such a report for research purposes anyway, under your responsibilities for ensuring the safe development of the site). Instead, a condition will be applied to any permission granted, requiring that any unexpected contamination encountered during the development must be reported, investigated, assessed and remediated to the satisfaction of Colchester Borough Council. This is considered to be in accordance with the aims of the NPPF; however, should advice to the contrary be received, Colchester Borough Council will reconsider this approach.

Note: Where the development is large-scale, the need for a Phase 1 Study is considered proportionate and will still be required.

Q What is an appropriate contamination assessment?

A For land which is known to be contaminated, or where contamination is suspected, the minimum requirement must be a "Phase 1 Study". This is a desktop study, site walkover and initial risk assessment, carried out by a competent and appropriately qualified person.

A guide to the kind of information that Colchester Borough Council will expect this study to contain has been produced by the Essex Contaminated Land Consortium and can be found from the following link: pdf icon Technical Guidance Booklet [1Mb]

Q Is a non-interpretative environmental search an acceptable contamination assessment?

A No: the assessment must also include a site walkover and initial assessment of risks and will be rejected without it, possibly causing delays to your development.

Q Who should I get to carry out an appropriate contamination assessment for me?

A A competent person must provide adequate site investigation, remediation and verification information. The NPPF definition is: "A person with a recognised relevant qualification, sufficient experience in dealing with the type(s) of pollution, and membership of a relevant professional organisation."

Q Can you recommend a consultant or company to carry out the contamination assessment for me?

A No: we suggest that you search on Yellow Pages or trade directories such as the ENDS Directory for "environmental consultants", "site investigations" or similar. We suggest that you get a number of quotes, with details of the works proposed and evidence of their experience and competency.

Q Will I need to provide more information, as well as the Phase 1 Study?

A This depends on the findings and conclusions of the study. Colchester Borough Council will need to be satisfied that the proposed development can be made suitable for use viably. Where this has not been shown by the desk study, further information may need to be provided. Once we have received sufficient information, the remaining contamination actions can be conditioned.

Q What format should reports be sent to Colchester Borough Council in?

A Copies of all contamination assessment reports should be provided in both hard copy and electronic formats.

Q If my application is for a small extension, conservatory, porch or similar, do I still need to consider the possibility of contamination?

A Householder applications will not normally require a Phase 1 Study to be submitted with the application, unless there is a specific, known, land contamination issue.

Q My householder permission has a land contamination informative attached - what do I need to do?

A In some circumstances, an informative may be added to a householder permission, advising of known or suspected risks. This is for information purposes only.  Since it is the developer's responsibility to ensure the safe development of the site, how much investigation and risk assessment is undertaken, or in what form this should take, is for you to decide.  In this case, there is no requirement for any information to be submitted to Colchester Borough Council at any time before or during the permitted development process.  However, if unexpected contamination is encountered during the development works, you are advised to contact us before commencing on any remediation, to ensure that it will be effective.

Q What kind of activities would cause there to be actual or potential contamination on my land?

A Certain uses of land are likely to be potentially contaminative. For more information about the kind of activities of concern, see the Department of Environment Industry Profiles. (DoE, 1995), which can be viewed or downloaded free of charge from: Environment Agency

Note: there may be other potential sources of contamination not listed in these profiles - all previous uses of the land and nearby land should be considered, including storage of fuels (including domestic heating oil), pesticides or other chemicals; pollution incidents.

Q What if my land is within 250m of a landfill?

A This should be treated the same as land where contamination is suspected and a Phase 1 Study must be submitted with the application. Dependent upon its findings and conclusions, intrusive investigation and protection from migration of landfill gases may be required.

The Environment Agency may be able to provide information about landfill sites in the vicinity of your land.

Link to Environment Agency  "What's in your Backyard?"

Further information may also be obtainable from Essex County Council

Q How do I know if my development could be affected by contamination?

A - Current or previous owners and neighbours may have knowledge of current or previous use(s) of the site and its surroundings.

- You may be aware of spillages, fires, pollution incidents, fly-tipping, unregulated uses of the land etc.

- Environmental searches undertaken for conveyancing or other purposes may provide information about current or former uses of land and surrounding land.

- Other sources of information, including those on web sites such as Environment Agency:

- Speak to Colchester Borough Council Environmental Protection - see next FAQs

Q Can the Council tell me if my land could be affected by contamination?

A Colchester Borough Council does hold some information about the history of land use within the Borough. Where we are aware of a previously potentially contaminative use of a specific area of development land (or land beyond the development land, but with the potential to affect the development), this will be highlighted at the application stage. In this situation, your application will not be processed until we have received an appropriate contamination assessment. However, please note that Colchester Borough Council records are not complete and therefore you should not rely solely upon our records to indicate whether there is a potential for contamination to affect your development. Equally, a lack of record does not indicate that your site is necessarily free from contamination

Q Does the Council charge to provide me with information about contamination?

A Environmental Protection are able to discuss informally by telephone whether we are aware of any relevant information, at no charge.

We are able to provide written, factual, environmental information under the terms of the Environmental Information Regulations 2004, and charges may apply. Please see the Contaminated Land web pages for further details.

Q Do all Local Authorities require me to provide this information?

A All Local Authorities must have regard for the NPPF. However, many of the national advice documents have now been withdrawn, and it is up to each Local Planning Authority to decide how best to ensure that developments are suitable for use. All Essex local authorities work together to ensure a consistent approach to dealing with contaminated land in their areas (and regional groups throughout the country work in a similar manner). To help developers through the sometimes complex process, they have produced a helpful guidance document. Note that it may be necessary to change the guidance from time to time, to reflect government policy, scientific knowledge or individual Local Authority circumstances. Please check that you are using the most up-to-date version, but are also aware of any updates to the legislation.

Link to ECLC pdf icon Technical Guidance [1Mb]

Q What happens if I ignore the potential for my land to be affected by contamination?

A By answering "no" on the 1APP form, you are confirming that, to the best of your knowledge, the land contains no contaminants that would affect vulnerable (or "sensitive") end users. Responsibility for securing a safe development rests with the developer and/or landowner and failure to disclose relevant information at the planning stage may lead to difficulties with the sale or re-sale of properties, or for action to be taken under Part IIA of the Environmental Protection Act 1990, in accordance with Colchester Borough Council's Part IIA strategy (currently under review).

Link to pdf icon Contaminated Land Strategy [5Mb]

Q Where can I find out more information about Part IIA?

A Colchester Borough Council Contaminated land page.

DEFRA

Q Where can I find more information about what else I need to do for my development?

A  Building Control

Q I am a consultant; how do the recent changes to the Part IIA statutory guidance affect the risk assessment of contaminant values in soils?

A Until there are changes to the advice provided to Local Authorities, Colchester Borough Council will continue to expect to see results of soil investigations, undertaken as risk assessment for planning purposes, compared to the assessment criteria hierarchy set out in the ECLC technical guide, with statistical analysis where relevant and/or appropriate. Guide: pdf icon Technical Guidance Booklet [1Mb]

Q What happens when I have submitted sufficient information to show that the land can be made suitable for use?

A Once we agree, permission may be granted by the Local Planning Authority (subject to any other non-contamination planning matters that are not the subject of this note). Where there is more information to be supplied with regard to contamination, this will be conditioned.

Q What kind of additional information will the conditions require?

A Each application will be considered on its merits and conditions will therefore vary. However, some example conditions can be found from the following link: pdf icon Example planning Conditions [24kb]

Q When will I need to submit the additional information required by the land contamination conditions?

A Construction works cannot commence until the "prior to commencement" contamination conditions (or any other such conditions) have been discharged by the local planning authority. Where a developer fails to discharge such conditions before beginning construction works, these works may invalidate the planning permission. Note: Matters relating to contamination will generally be required to be addressed before the development itself starts. Some of the necessary information may take some time to gather and present, especially where intrusive investigations or monitoring are necessary. In addition, the Council may ask for further clarification information to be provided. It is therefore essential that the applicant and/or developer is aware of all conditions that relate to their planning permission and allows sufficient time to provide all of the information required.