I must correct one thing here (perhaps a typo anyway) - the C4SLs are NOT statutory guidance of any sort.

Howard Price
Principal Policy Officer, CIEH



-----Original Message-----
From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of GARETH REES
Sent: 13 May 2014 14:23
To: [log in to unmask]
Subject: Re: C4SL

Im not aware that the SGV's or clea guidance has been withdrawn only that they have been added to by the C4SL with a different exposure model and a diffent way of selecting tox

Section 38 of policy document for the C4SLs just says the Part IIa guidance assumes that C4SL's could be used under planning but goes onto say that it is ultimately for the department of communities and local government (i.e. it doesn't say they can be) and that it is upto the assessor to decide if they are appropriate.  SO their use under planning is still legally up in the air.  The C4SL's are not Statutory Guidance with regard to the planning regeime as their use has not been specifically set out by DCLG they only form statutory guidance with regard to part IIa as they are a addition to the Part IIa stat guidance

Also the action would probably take the form of an appeal to the planning inspectorate for non-determination of a discharge of conditions application to be determined by a planning inspector as apposed to a legal case and then possibly onto a judicial review if the appellant is willing to pay but given the silence on c4sl's by DCLG and the fact no LA's core strategy is going to include a statement on C4SL's and the established As Low As Reasonably Practicable Approach that SGV/GAC's can be shown to meet I wouldn't like to argue it as a developer




Thanks

Gareth Rees MGEOL (HONS) FGS
Environmental Protection officer (Contaminated land and Air quality) Street Action Team




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Note I currently work at North West Leicestershire District Council on Mondays Tuesdays and alternate wednesdays


-----Original Message-----
From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of Mark Henderson
Sent: 13 May 2014 13:22
To: [log in to unmask]
Subject: Re: C4SL

Chris (Taylor)

Consultants rarely have the luxury of debating the science and planning/Part 2a legislation so (for me) that's a nice summary of the issues and, seemingly, one CLO's willingness to consider the use of C4SLs in planning.

I would be interested to hear more consultants airing views on practical issues (and recent experience) such as the difficulty in preparing documents that satisfy one LPA but not another - as an industry professional sitting in front of a client (effectively a lay person) I have to explain what they only see as dual standards.

Gareth (Rees)

The points raised in your email in reply to Martin Wright are pertinent but one could be forgiven for thinking that the potential for legal action is a one way street. This leads me to a legal action being considered by a developer client on a council.  It goes like this:

A phase 2 report is submitted for planning which confirms soil contamination below C4SL.  After consultation, the LPA refuses the report on the grounds that the consultant should be using CLEA SGV and LQM/CIEH GAC.  The reason given was that the EHO hadn't completed a review of C4SL yet and was not prepared to implement them.  A revised report based on SGV/GAC was then prepared which then flags up soil contamination above GAC/SGV.

The client has taken the advice of a solicitor who, at my last contact, was preparing a case for legal action along the lines of "it is not reasonable for the LPA to object based on non-statutory guidance that has been withdrawn and recently published [Defra] policy ignored".

With very few authorities willing to pursue Part 2a on grounds of cost they might instead have to budget to defend their own decisions.



Regards



Mark C Henderson BSc(Hons) MSc DIC
Technical Director - Geoenvironmental
Mobile: 07736 058 007
Office: 01223 815600
Email: [log in to unmask]
W: www.mlm.uk.com

M L M
Buildings and Infrastructure ∙ Environment Planning and Development ∙ Compliance ∙ Sustainability


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-----Original Message-----
From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of Taylor, Christopher
Sent: 13 May 2014 11:49
To: [log in to unmask]
Subject: Re: C4SL

Of course I am in favour of safe development, who wouldn't be? As a regulator whose role is public health protection, of course I want all soil in all developments to be the best quality possible. BUT, what CAN I demand under Planning?

The NPPF is the framework umbrella under which local authorities can set their planning policies. It clearly states what local planning decisions and policies should ensure:

1. To prevent unacceptable risk
2. Ensure a site is suitable for use
3. After remediation, not Part 2A
4. Adequate SI by a competent person

Nowhere does it state that planning policies must ensure the development is safe with regard to contamination.

Why do we continue to endorse a double-standard system (one for planning, one for Part 2A)? Just because we have been doing so for years, does that justify why we should continue to do so. Land is either contaminated land, as per the definition of Part 2A, or it is not. The risk of exposure is either acceptable or not. We have all heard the example of 2 houses on the same bit of land with the same levels of exposure. One is an old house, deemed to be in Cat 3, so nothing is done. The other is a new development, so we require soil remediation under planning. Common sense dictates that if the soil is good enough for the old house, it should be good enough for the new house, as the levels of risk are the same.

I can already hear the arguments "but development present an opportunity to ensure the soil is safe etc", but look at the NPPF. Development presents an opportunity to ensure there are no unacceptable risks. And if the Cat 3 house next door is deemed to not be unacceptable....

At the end of the day, the responsibility for securing safe development rests with the developer. How does a developer demonstrate this? By being as far away from the Cat2/3 boundary as reasonably practicable. What is the best way of having confidence in this? Show your site would fall into Cat 4 of the Part 2A regime. Hence why C4SLs are a useful tool under planning.

OK, that's me done. Apologies for clogging up all your inboxes. Perhaps we should organise a public debate instead?


Regards

Christopher Taylor
Enforcement Officer
Regulatory Services
Brent Council

Tel: 020 8937 5159
Fax: 020 8937 5150
www.brent.gov.uk


-----Original Message-----
From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of Chris Dainton
Sent: 13 May 2014 10:54
To: [log in to unmask]
Subject: Re: C4SL

I'm also with Matt, Martin, Mike and Howard.

I'm interested in delivering safe development solutions, not ones that scrape through on the Human Health Cat 2/3 boundary (or even in Cat 3 for that matter).  Who wants to buy a new house with a 'tolerable' level of risk.

NPPF S120/121: "Safe development", "prevent unacceptable risks", "suitable for use"' "as a minimum.....not Part IIA".  It is pretty clear from this language what the NPPF is trying to achieve - and its not just ensuring the site is not Part IIA.

And it's really not that hard to deliver a new residential development that presents a minimal risk to human health.  For sure lead, arsenic, BaP and vapour intrusion can sometimes be tricky, but there's always a way through: it's what makes being in this business so interesting.

Although responsibility of "securing a safe development rests with the developer and/or landowner.", it is the planning authority responsibility to use "Planning polices and decisions" to ensure that this is delivered by the developer/landowner.

I know 'judgement' is a dirty word (judgement = "should be taken into account", "taking account" and "appropriate for its location" in NPPF language), but sensible solutions and common sense always need to be applied; now where's that elephant.


Chris Dainton
Peak Environmental Solutions

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