To answer the final question, in my opinion, no; it`s a mistake to regard `not unacceptable` (sic) in the context of Part 2A (particularly when all the facts about occupancy etc are known) as somehow contiguous with `acceptable` in the context of planning (and a necessarily somewhat uncertain, but possibly very long, future). They are, as Mike points out, simply different contexts, presenting different opportunities. Both developers and LPAs have recognised that in the past and should continue to do so.
Howard Price
Principal Policy Officer, CIEH
From: Contaminated Land Management Discussion List [mailto:CONTAMINATED-[log in to unmask]]On Behalf Of Taylor, Christopher
Sent: 13 May 2014 09:49
To: [log in to unmask]
Subject: Re: C4SL
Yes I agree, the word 'safe' is used throughout the NPPF. And throughout the NPPF it refers to the LPA ensuring the safe development of x,y&z but for contaminated land, it specifically mentions 'the developer/landowner' is responsible for the safe development, not the LPA. But again, what is the meaning of safe in this context. ‘Safe’ is for the development overall, so includes potentially numerous things such as decent construction that won’t fall down, not having flash floods, having sensible and gentle gradient changes, not leaving sharp steel rods sticking out of the ground or pools of hydrocarbons on the surface etc.
Here is an example I want to use to explain my perspective:
Let's say a house is built in my borough and Environmental Health were accidentally not consulted and land contamination was not considered. It's on land identified as being potentially contaminated under my inspection strategy. What tools do I have at my disposal for ensuring the soil quality is acceptable? I can investigate the soil under Part 2A. What is the trigger for regulatory intervention? Cat 2 land. If the land has contamination at levels above the C4SL's but not at SPOSH levels, it's Cat 3, i.e. not unacceptable and we leave it as it is. I can't require the soil to be in C4, so what is acceptable is a level higher than minimal risk (and LLTC).
Regarding your point "You could indeed make your cont land planning policy that everything is acceptable if part IIA regulatory action is avoided but are you fulfilling all the objectives of the planning process (see s120 and s210 IN FULL) ? Would such a policy be consistent with thresholds you apply for say comments on noise and air quality etc where we do more than prevent death by having proportionate responses." I would argue, yes. The objectives of the planning process in this context are to ensure that there are no unacceptable risks and the land is suitable for use and not Part 2A. For noise we require a standard of insulation to protect residents from the impact of traffic noise for example, but their house are not soundproof. You will still hear the sirens outside. You will still hear hooting cars and noisy trucks. But the internal sound level is acceptable. For air quality we do not ensure that air filters are used on houses to purify the air to "minimal risk levels". People will still be breathing in NOx in their homes, but at an acceptable level. So the same applies to contaminated land. The soil does not have to be so clean that you can eat it for breakfast, but it must be acceptable.
Are we not focussing too heavily on the overly conservative side of the scale and not on what is intended by the 'spirit of the language' of the NPPF, that we should be aiming at ensuring that the risks are acceptable, and not "minimal"?
Safe in NPPF has a more common sense meaning inherited from earlier planning documents. It is related to the planning concepts of suitable for use (mentioned in s121) and general amenity (s120). Safe is used throughout the NPPF for all sorts of topics.
The NPPF is indeed silent on who determines safe but if it's not the LA then it's not the developer either, so its nobody at all or it is the LPA / Planning inspector using reasonable polices or norms of the time. NPPF remains as guidance it's NOT planning law, case law or LA policy. The issue of who determines such points will no doubt have been examined before in 60 odd years of planning.
The NPPF could have made explicit that its use of "safe" was the same as "not part IIA determinable" but despite strong efforts to minimise the text it's not there as the only objective in s121.
You could indeed make your cont land planning policy that everything is acceptable if part IIA regulatory action is avoided but are you fulfilling all the objectives of the planning process (see s120 and s210 IN FULL) ? Would such a policy be consistent with thresholds you apply for say comments on noise and air quality etc where we do more than prevent death by having proportionate responses.
When the C4 documents use the language of earlier planning documents it does NOT mean that their new use can and must be read back into older uses of the same words in the planning context.
We need to be very careful with safe and unacceptable risk in planning and in C4 discussions and by far the easiest method to get consistency is for a statement from the relevant parties.
Environmental Protection Practitioner
Localities Directorate Cheshire West and Chester Council
Location: 1st Floor, Wyvern House, The Drumber, Winsford, Cheshire, CW7 1AH
Textphone (for hearing impaired, deaf and speech impaired customers) 01606 867 670 Fax 01606 867885
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