David et al.
I have been keeping out of this, but I feel I really have to reply to try to put an end to the misinformation, misdirection, and just general misunderstanding that is currently in the industry over the topic of C4SL’s, but also how the planning regime works in relation to Part 2A and the roles and responsibilities of various parties in the planning regime. In addition, there are many other responsibilities of the LA under the planning regime that are actually of equal importance that people have either forgotten about or – I am hoping – do not know about.
I know I am going to regret putting my head above the parapet as I have loads of work on – thank goodness I only get the daily digest! But I cannot let Chris Taylor @ Brent continue to do a sterling job and be more or less the only person talking sense and actually stating and adhering to the facts and battling such misinformation, misdirection, misunderstanding, misuse, etc.
So, without further ado, to answer your ‘points’ (dare I say rants?) and forgive me but this is going to be long!
“1. C4SLs are based on a Central Government policy decision to assist developers with pragmatic, (easier and cheaper) remediation targets at the cost of public health protection,”
No, this is completely and fundamentally incorrect. However, this is the position that certain individuals/organisations have put forward, perhaps in error or perhaps for their own particular gains.
As Chris has stated, Part 2A is all about dealing with unacceptable risks and ‘kick’s in’ at the Category 2/3 boundary. Therefore, the ONLY way to Determine a site is if the LA thinks that the site falls within Cat 1 (definitely contaminated) or Cat 2 (paraphrasing, benefit of the doubt it is contaminated). Planning is all about preventing such unacceptable risks from arising in the first place, so making sure a site is not within Cat 1 or 2. Planning is NOT about making sites spotlessly clean or that present no risk. Even under Part 2A, if you Determine and then – hopefully! – remediate a site, you don’t have to make it spotlessly clean or presenting no risk, rather just ‘not Part 2A’, so below the Cat 2/3 boundary and NOT to the level you would want but what you legally have to provide. And, don’t forget, very importantly Part 2A is like more or less like the rest of the UK legal system that the starting point is that the site is NOT Part 2A (i.e. the site is innocent [and not sufficiently contaminated] until proven guilty).
So, what is ‘not unacceptable’? Well, this is really anything below Cat 2/3 boundary. The problem, of course, is this is flexible depending on the sites setting and local circumstances. And rightly so, as many things may influence the decision, not just levels of contamination by exceedance of a ‘number’, which is itself subject to huge uncertainty and a result of huge assumptions in its derivation. It must be a ‘lines of evidence’ approach with a ‘narrative’ on why the LA wants to Determine (whilst remembering the default is NOT to Determine.) So because the Cat 2/3 boundary is uncertain, that is why Cat 4 Screening Level exists to give some guidance on contamination levels that really aren’t anywhere near the regulatory [Part 2A] starting point.
So, what does planning actually state (NPPF direct quote):
“120. To prevent unacceptable risks from pollution and land instability, planning policies and decisions should ensure that new development is appropriate for its location. The effects (including cumulative effects) of pollution on health, the natural environment or general amenity, and the potential sensitivity of the area or proposed development to adverse effects from pollution, should be taken into account. Where a site is affected by contamination or land stability issues, responsibility for securing a safe development rests with the developer and/or landowner.”
“121. Planning policies and decisions should also ensure that:
· the site is suitable for its new use taking account of ground conditions and land instability, including from 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;
· after remediation, as a minimum, land should not be capable of being determined as contaminated land under Part IIA of the Environmental Protection Act 1990; and
· adequate site investigation information, prepared by a competent person, is presented.”
And then in the Glossary:
“Competent person (to prepare site investigation information): A person with a recognised relevant qualification, sufficient experience in dealing with the type(s) of pollution or land instability, and membership of a relevant professional organisation.”
But, the above CANNOT be read in isolation, as you need to really read all of the NPPF. And then engage the brain to think about the problem! And, you need to remember what the aims of the NPPF is – to try to make the planning system understandable to a very wide range of people and practitioners. Don’t forget, planning is something that really does affect many people, but the ‘old’ set of guidance had ~1,400 pages of text so wasn’t really approachable or understandable to the lay person (or, to be honest, many professionals!). The aim was to cut all this down to the ‘basic’ facts, presented as plain-English, so that local people could feel empowered to try to prevent or stimulate development in their area as they so wished, as well as of course to being forward household extensions etc easier and make people think as the default that ‘it’s too difficult’.
Part 2A guidance is designed mainly for ‘us’, and less for the lay person. It is the fact that the NPPF is not really designed for the technical people like people in this industry who want to read in what our ‘understanding’ is of words, or what we would LIKE or ascertain the words to mean. So what does ‘safe’ mean? It is used 12 times in the NPPF and if you include it as part of another word (such as safety, safeguarding, etc) then it is used 42 times. Therefore, it is a generic, plain-English word, not to be interchanged/inferred as a ‘toxicological thing’. It is meant as ‘safe’ in the context of the development overall, so includes potentially numerous things such as designing out crime, knowing and interacting with neighbours, decent construction that won’t fall down, not having flash floods, having sensible and gentle gradient changes, not having rat-runs for cars, slowing cars down, making sure plots can accommodate stairs that are not overly steep, etc, etc, etc.
Was the outcome of the recession a stimulant to review the guidance to make things ‘easier and cheaper’ for developers? Partly ‘yes’, as his had grounds I will go onto, but mainly ‘no’. Don’t forget this all came about mainly from a change of government. Labour were ‘responsible’ for a lot of what we knew in guidance and Labour governments are generally a ‘top heavy’, whilst Conservative governments, by one of their guiding principles, are about ‘smaller government’ and ‘power to the people’. This is of course simplistic, but I’m not going to get into a political debate.
But, there is the other fact that ALL legislation and guidance does – and should – change as times evolve, court cases happen, scientific understanding advances, and the social make-up and thinking of people change. It is right to constantly question ‘is this right’ and ‘is this the best way to do things’ and, yes, even ‘is this affordable’. We are after all living in the 21st Century, otherwise we’d all still be relying on the Magna Carta and nothing else! Therefore, it is good that Part 2A and planning were looked at again and eventually evolved – but they are not fundamentally different from what they were. Streamlined, for sure, but the main principles are the same as what was in the old Part 2A Statutory Guidance and PPS23 (which, let’s be honest, were very poor documents).
But don’t forget that we have a shortfall of an estimated THREE MILLION houses in the UK, which is one of the main reason why prices are so high. In the ‘boom times’ developers can just pay for things, such as remediation to GAC levels, and eventually the PRIVATE BUYER (i.e. people like you and I) pay them back. When things get tight, house prices fall, so things like remediation cannot be paid for. This is why so much greenfield and even Green Belt (two totally different things, BTW) development has happened.
So, what has happened in the past? Unfortunately, many LAs have Determined sites at GAC levels. Unfortunately, many LAs have insisted that remediation is to the GAC and it has just been too much ‘bother’ to question it. Consultants and LAs have ‘got used to it’. Neither have operated by actually following what should be done.
And anyway, why are we bogged down with ‘minimal’? Well, we just kind of fell into using the GACs that way. Minimal risk doesn’t run in many other policy areas, so why is contaminated land any different? For example, is it really minimal risk to drive at 70mph on a motorway or 30mph in a residential area? Doubt it! But it is a balance of time and cost as well as the chance of having an incident and the severity of that incident.
But when dealing unnecessarily with ‘minimal’, eventually you and I pay for these decisions in one way or another – either as a direct result of your £tax when the HCA (a gov agency spending your money!) has to remediate a site to an unnecessarily high standard, or increasing £house prices that then affect existing houses, or we ‘pay’ when huge swathes of the countryside on the edge of towns and cities disappears with more identikit housing.
Will public protection suffer? Probably not. Read ALL of the C4SL documentation – I’ve had the pleasure to read various iterations of it all about 6 times! – as well as the previous FERA DEFRA report, which is very interesting, and you will clearly see that although some things have changed, mainly to question previous assumptions based on former ‘guesstimates’ and changes in scientific understanding, but overall things are still strongly precautionary. After all, the C4SLs are not actually that much higher than the GACs.
However, in your blanket statement you appear to have forgotten that Lead is MUCH lower than it was. This will cause difficulty and expense in dealing with, so I am really not sure how you can state what you do?
Will they be easier to use? Well, nothing really has changed on what is done – you still need at the minimum a PRA, but most sites will need an SI with comparing the numbers first to GACs then the C4SLs, and possibly DQRA, and potentially remediation where necessary. A lot of brownfield land may need a cover layer, which really is a default way of remediating sites for marginal contamination levels, as the land isn’t suitable for gardens. So little is really likely to change concerning ‘easier’, so again I really don’t’ understand your point, although the hope is less sites will need DQRA and remediation as they really don’t need it.
Of course, throughout all of this, the responsibility is with the developer to ensure that the site is SUITABLE FOR USE and the LA should only be intervening when you think the site actually poses an unacceptable risk. Overall, a developer could if they wanted to be WELL over the C4SL, even to the extent that some may see they are into the realms of Cat 3, but there is nothing you can do about this unless you can prove that it is unacceptable. Remember, only Cats 1 and 2 state something is unacceptable, not Cat 3. Due to variations of where the Cat 2/3 boundary could fall, is it sensible to be into Cat 3? Probably not, but that is a totally different debate. I really don’t think developers will ‘push it’.
C4SLs can – and I am absolutely certain – will be exceeded, perhaps by some large margins, as DQRA and further advances, such as in bioavailability progress, but this is only right – they are just a simple screening number. After all, if a concentration was above the GAC, little ‘real’ work was undertaken and it was taken as OK and this will be the case soon for the C4SL.
“2.The C4SL policy is inconsistent with precautionary, polluter pays and sustainable development principles,”
No, this is completely and fundamentally incorrect. However, again, this is the position that certain individuals/organisations have put forward, perhaps in error or perhaps for their own particular gains.
Let’s take each in turn:
Precautionary? If you read ALL of the C4SL documentation you will see that although some things have been changed, overall there is still much precaution in the derivation of the numbers. They are just a screening number so this is only right. The C4SL numbers will be exceeded in actual developments if the developer wants to and doesn’t stray into the unacceptable realm.
Polluter Pays? Yes, if the LA can pin the contamination on the polluter under Part 2A, then they will still pay. Incidentally, even if the LA brings a spurious Part 2A and doesn’t Determine, the polluter still pays through professional reputation, lost time, lost income and potentially bad PR!
But the polluter pays in many ways even not through Part 2A. Through standard land valuations and transactions, the ‘best’ value is derived and then ‘abnormals’, such as contamination or geotechnical issues (that may arise from contaminating activities, such as concrete capable of withstanding aggressive ground conditions or piled foundations due to soft reworked ground) are deducted from the value and liabilities are transferred to the purchaser. So the polluter has in fact paid for polluting the ground since they would have got a lot more money for the site if they hadn’t originally contaminated it. Very crudely, sites must change hands for a ‘meaningful amount’, which is normally determined to be £1 to transfer liabilities, but if the site was not contaminated could be worth £millions.
However, it is actually up to the developer – or any other purchaser – in negotiations to see what they actually want to pay for a site, as the site may have more ‘value’ than a pure £ land value. Perhaps the developer is desperate for a market presence in the area? Or really needs another site quick so their forward programme may be affected? All these things and many more may cause the developer to ‘overpay’ for the site and, I suppose, this could mean that the polluter isn’t necessarily paying the true costs for remediation. But this is a market thing, and nothing to do with the overall polluter pays principal, and certainly nothing to do with C4SL!!
What about sustainable development principals? Well, I’m sorry, but I’ve ever heard such a silly thing to say. Sustainable Development is about many things not just about contamination. For remediation read the fine SuRF work. But it is about the future as well as now and, for example, providing more houses for our present population and future children and grandchildren is part of the ‘assessment’ as are a BALANCE of things in social, environmental, and economic. Your ‘sustainable’ is not really a proper ‘sustainable’ definition as, it appears, you have a bias of just some aspects.
One thing many people forget is development viability. Making sure brownfield sites get developed is a very good thing to do. But not at ‘any’ cost. OK, the HCA used to and still occasionally gap funds, but times are hard and we don’t much now due to cuts of our own. But the ‘market’ doesn’t do things for fun, but for a profit. That’s capitalism! (Again certainly nothing to do with C4SL!!)
During any development the LA will levy a whole load of ‘planning obligations’ on a site. Often they can be about 1/3 or more of the ENTIRE market cost of a site (so the actual costs from the sale of the houses). These ‘obligations’ are, very simplistically, extra costs the development must bear if the developer wants his profit and wants to build. If you don’t or can’t agree them, you can’t build, even if you have planning permission, since the permission is conditional on agreeing the obligations. Such payments may be to the ‘local’ area for schools, doctors, road improvements, social care, affordable housing, parks and children facilities, as well as a whole load of other things. If there are many abnormals on a site, such as remediation, then it is the obligations to the local community that have to decrease rather than dealing with the abnormals and profit margins. And, crudely, an LA CANNOT make a site unviable and if it can be shown that they are, the Planning Inspectorate and DCLG can intervene to reduce or abolish all obligations. And if an LA does, the LA could have to pay for a lot of the appeal and professional costs as a ‘punishment’.
An interesting thought – what is worse? Slightly higher concentrations of contaminants remaining in the ground that may cause some minor health effect, or no payments to local doctors or schools? So health and education DEFINITELY suffer in the latter, whilst there is a possible effect on the former?
CLOs/EHOs that cause unnecessary remediation are eating into the obligations and not the developer profit, so it is actually you that are definitely impacting many the local community and not, as some appear to do, some aspiration to create a spotless area for a few. Again, go figure on misguided intentions!
“3. The C4SL policy will lead to inconsistency between LAs and introduce a two tier (Part 2A/Planning) regulatory standard,”
Yes, this is exactly the point!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
There always has been this difference, but it hasn’t operated properly in the past. I’ve already gone on why above, and so has Chris and others on this forum, so I’m not going to go on further. If people cannot understand this they really should brush up on their guidance/training!
“4. C4SLs are only available for the 6 of the 140 or so SGV/GAC determinants,”
Yes, true. But the SGVs started small and the government didn’t bring about all the ~140 GACs, just a few. For GACS, Government provided the framework, industry delivered. The hope is the same for other C4SLs to be derived, if needed, as everything is ‘out there’ to derive others, again as provided by government. I believe people are already talking about how to do this. However, if further C4SLs are derived, they MUST AND ONLY be done by following FULLY the ENTIRITY of the framework presented in the documentation. And deviation because someone ‘doesn’t agree’ with something must not happen, otherwise they are not actually producing a C4SL, but some other random number that really isn’t helping anyone.
Your next point, below, talks about expert levels of knowledge and competence in toxicology being required, and this will also be the case for future C4SLs. I am sure there are many in the field who can look at the exposure, and really this will just be a ‘churn’ following the ‘defaults’ within C4SL. But the toxicology bit MUST be done by toxicologists familiar with the field of contaminated land and base their decisions on the framework and policy steer given by DEFRA.
“5. The C4SL derivation methodology relies on an expert levels knowledge and competence in toxicology and epidemiology, which is not available within my LA-CLO and/or within my local consulting community,”
Yes, true, and so this should be! This has ALWAYS been the case and is nothing new.
The decision of whether to Determine or not may be delegated to an individual CLO/EHO, but I really would push this WAY further up the chain and make it a Councillor thing to get backing. I think this is actually in the Statutory Guidance? OK, you will write the recommendation paper. In doing this the LA should be employing all the specialists they need. The Part 2A SG definitely states this! Any LA acting without professional advice is opening the grounds to challenge and an unsound Determination.
As an aside, the C4SL documentation provides tremendous discussion on a range of issues that will be of benefit to LAs in deciding if land may be above the Cat 2/3 boundary. It also provides much ‘food for thought’ for future DQRA the industry must consider so we get ‘proper’ risk assessment and not just a ‘play’ with numbers.
We all must learn to operate within our proper field and not stray way outside our area of expertise or familiarity. If we do we are treading on very thin ice both professional – and dare I say – morally. If you are chartered based upon, say, risk assessment or SI, then you really shouldn’t be doing, respectively, toxicology or risk assessment without suitable training/peer review, otherwise you are putting our chartership – and probably companies PI insurance - in jeopardy.
Contaminated land is a complex thing, and we must acknowledge that.
I do a very wide range of work within the HCA, so not just contaminated land, but also dealing extensively with ecology, demolition, asbestos, flooding, highways, planning, master planning, etc. I’ve become a bit of a jack of all trades and it’s really interesting. My ability to advise and work on a subject varies across each field, but I know where I come to the edge of my ‘expertise’ and where I must stop because I run the risk of, well, basically and effectively, guessing! So I get in the advice I need or we don’t make a decision as we cannot make a decision. And so should EVERY LA and developer. (The HCA is just as strapped for cash, so don’t say we are different – we’ve had huge staff cuts and even greater financial reductions, but having to do far more with the money.)
“6. Central or local funding/ resources are not available for additional C4SL development, training or support,”
I presume you may have noticed this ‘recession thing’ we are still going through? Government and the UK are living through hard times and the ‘cuts’ are only really just kicking in in government, so unfortunately very difficult decisions have to be made.
There is no ‘training’ needed. It is not the LAs decision to use the C4SL or not, nor to derive future ones, nor should the LA need to be conversant in all the intricacies, as this has been done nationally. Further C4SLs may be derived by following FULLY the framework presented.
“7. DCLG seem unable to mandate the use of C4SL for planning and development purposes.”
Yes, correct. This is a central theme across government that each department only operates within the field it is responsible for and doesn’t stray into others ‘territory’ (see my comments on point 5 for obvious links to how the contaminated land field operates). Well, except for Treasury, who interferes everywhere, but that is a different story!
Contamination is not DCLG’s policy area, so why would they intervene in it? Planning covers many things, not just contamination, and many of these topics are not the policy area of DCLG. Does DCLG mandate anything for:
· Ecology? No, policy is with DEFRA.
· Schools? No, policy is with DFE.
· Highways? No, policy is with DFT.
· Flooding? No, policy is with DEFRA.
· Playground provision? No, policy is with DCMS.
· Building materials? No, policy is shared.
So, DCLG does not mandate anything in any of these other areas, and many more, so why should or would they for us? Why is contaminated land so different?
What is different for contaminated land though, is the requirement for work to be done by a “competent person”, and this is actually rather odd. It should really be the same for every other field (e.g. ecology by an ecologist, highways design by a road engineer, etc) but it isn’t. Although this has sparked debate what exactly a “competent person” may be within the definition in the NPPF (above, although it is really clear!), it is obvious that this may be something that can be relied upon and although brief is a very strong thing indeed. This is because there was a Planning Inspectorate Appeal on a development in Bradford and the decision could be applied nationally to similar circumstances. The PI upheld refusal on Con Land grounds and interestingly that a ‘Competent Person’ didn’t do the work – see http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.5364154&NAME=/Decision..pdf
Of course, I’ve been very generalistic in some comments, and no offence is meant to any particular individual and I am not ‘picking’ on one particular set of stakeholders. Contaminated land is a complex thing, and we must acknowledge that. We must get over the arguing about things and all work together.
We also must stop the ‘misinformation bombs’ that get disseminated, as the only people that will really suffer are LAs and the public when – if – the LA tries to progress a Part 2A and the ‘power of Google’ makes people an expert and causes confusion, worry and difficulty.
Anyway, I’ve gone on a bit, and I fully expect the barrage of replies/comment to begin. I’ll look forward to tomorrows’ digest!
Regards
Richard
______________
Dr Richard Boyle, BSc (Hons) MSc PhD MIEnvSc
Senior Technical Manager
Public Land Acquisitions Teams | Land Team | Homes and Communities Agency
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