UK: New Planning Conditions For Developments On Polluted Land

Introduction

The Government have sent all local planning authorities new model planning conditions for use when polluted land is going to be re-developed.

Generally, model conditions are useful as they can improve the consistency of decisions. However, whilst a degree of predictability will be welcome, developers should ensure in their negotiations with the local planning authority that the model conditions are not simply imposed as a matter of routine without careful assessment of the need for each condition. There is nothing in the new model conditions giving clear guidance to local authorities as to levels of remediation required for proposed uses which remains a major practical issue for some developers.

Where the development does not require the submission of a full environmental impact assessment, site specific environmental information may be provided with the application in order to reduce some of the uncertainties that might otherwise plague the development post planning.

The new model conditions set out a phased approach for dealing with potentially contaminated land to ensure that the development provides a site that is suitable for the proposed use.

Condition 1 Site Characterisation

This condition will oblige developers to:

  • provide a scheme to the local planning authority specifying how they will assess the nature and extent of any contamination. The local planning authority must approve the scheme

  • then to provide their site investigation and risk assessment which will have to be undertaken by competent people in accordance with DEFRA and the Environment Agency's document "Model Procedures for Land Contamination, CLR 11". It will have to contain a survey of the contamination, an assessment of risks and an appraisal of the remediation options and propose a preferred option. That report also has to be approved by the local planning authority

It is likely that the need for this condition will become apparent during the initial negotiations with the local authority, depending on the environmental condition of the site, therefore one way to avoid the delay in getting the two approvals under condition 1 is to have a scheme, investigation and risk assessment done in advance.

Condition 2 Remediation Scheme

The next condition requires the submission of a detailed remediation scheme to the local planning authority specifying how the property will be made suitable for the proposed new use and the scheme requires the approval of the local planning authority.

The remediation scheme will have to contain details of the works, objectives, timetable and site management procedures.

Local authorities may still use planning agreements for some developments particularly where they need to secure any necessary off-site remediation or treatment works or need a bond to cover any contingency that may arise from future monitoring.

Condition 3 Implementation of Scheme

Not surprisingly the approved scheme is the scheme that the developer will be obliged to implement by new model condition 3. The condition specifies that the remediation work must be carried out before development commences in accordance with the terms of the approved scheme. This will not suit all proposed remediation schemes which can take many months and be completed whilst the development is ongoing. This would have to be the subject of negotiations before planning is granted to secure the appropriate condition in the consent.

The condition also requires developers to give 2 weeks written notice before starting the remediation works and to provide a verification report to the local planning authority after completion to demonstrate the effectiveness of the remediation.

The verification report will be subject to the local planning authority's approval.

Condition 4 Unexpected Contamination

This new planning condition will require the developer to report any unexpected contamination found during the development to the local planning authority. Effectively the procedures contained in conditions 1, 2 and 3 get repeated for any unexpected contamination found during development.

Condition 5 Long Term Remediation

Sites where ongoing monitoring will be required may be the subject of this condition. The developer, will have to prepare a long term monitoring and maintenance scheme for the approval of the local planning authority.

At the end of the monitoring, the developer will have to demonstrate that the remediation objectives have been achieved and submit reports to the local planning authority (using the same DEFRA/EA procedure as for Condition 1).

Conclusion

Not all of these conditions will be used for each brownfield development site but this five condition approach is likely to be required for many developments.

All developers who are contemplating the development of brownfield land should be aware of these new model conditions and ensure that they have environmental consultants appointed in the early stage of negotiations with the local authority to cover all of the local planning authority's requirements. The consultants should be aware that the local authorities will be relying on the information they provide in their reports.

By way of a reminder even some remediation works done without a re-development, perhaps to mitigate pollution in order to facilitate a sale, may require planning (as well as other licences) and that planning consent may include these new model conditions!

This article is presented for informational purposes only and is not intended to constitute legal advice.

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