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The problem from my perspective is the wording of the NPPF’s requirements and the lack of openness on the government’s part about what it wants to occur. The debate should be about what the planning regime is meant to do with respect to contamination issues. It’s implicit in the information released that DEFRA and DCLG want the C4SL’s to be used in planning, but the wording always stops just short of clearly supporting their use in an unambiguous way. I’m not usually keen on lawyers getting involved, but a court case/planning appeal or two to establish where the line actually is. If there’s a requirement for minimal risk it should be clearly set out in the NPPF, not left to arguments about the semantic meanings of safe and suitable, and how fragments of sentences should be interpreted. I know what I think it means, but if one things clear on here it’s that far more knowledgeable people than me are disagreeing on the interpretation of things that should be crystal clear in the guidance. Regards James From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of Taylor, Christopher Sent: 18 July 2014 10:19 To: [log in to unmask] Subject: Re: "After remediation..." [Scanned] Dear Paul I didn’t selectively quote from the NPPF, Simon did. I just replied to the point he was making. Emails need to be considered in their entirety (including the threads that lead to that email). Of course everyone is well aware of the requirements of paras 120+121. I have mentioned them on numerous occasions in this forum and don’t think I should have to repeat myself, again. From a planners perspective, surely the removal of unacceptable risks makes a site safe? Why does the removal of unacceptable risks have to equal the implementation of minimal risk? Low risk is not unacceptable risk, and under the NPPF that would be safe. Regards Christopher Taylor Enforcement Officer Regulatory Services Brent Council Tel: 020 8937 5159 Fax: 020 8937 5150 www.brent.gov.uk From: Paul Nathanail [mailto:[log in to unmask]] Sent: 17 July 2014 19:10 To: Taylor, Christopher; [log in to unmask] Subject: "After remediation..." Dear Chris - selectively quoting the NPPF probably isn't helpful. You of course omit the beginning of the sentence which refers to "after REMEDIATION" (my emphasis) - so the 'not part 2A' test you refer to only kicks in if there has been remediation. It does not kick in if there is no remediation. The NPPF needs to be considered in its entirety while bearing in mind the specific requirements in paras 120+121 (have I mentioned those before?). Developers have to show that development is SAFE etc etc. Best regards, Paul Sent using BlackBerry® from Orange ________________________________ From: "Taylor, Christopher" <[log in to unmask]> Sender: Contaminated Land Management Discussion List <[log in to unmask]> Date: Thu, 17 Jul 2014 10:44:03 +0100 To: [log in to unmask]<[log in to unmask]> ReplyTo: "Taylor, Christopher" <[log in to unmask]> Subject: Re: CIEH Statement Simon As you say, the NPPF states that "as a minimum, land should not be capable of being determined as contaminated land under Part 2A". So as a minimum, after development, a site can fall into Cat 3. But, to be safe and risk averse, developers are advised to go one step further into Cat 4. Cat 4 land is beyond the reach of Part 2A regulatory intervention. So cleaning up to Cat 4 is still stricter than Part 2A, where we only have a duty to clean up to Cat 3. Regarding your other comment…. Let’s be honest. The cream of the consultancy crop would not recommend dig-and-dump on the basis of an exceedance of a GAC. But I have lost count of the SI’s I have reviewed under planning, and sorry to say… I think I can count the DQRA‘s I have seen on one hand. The vast majority are still… “compare concentration X to GAC Y. X>Y. Therefore bring in a capping layer. In order to do this, we need to strip 600mm.” So it is still very common (in my experience). And about supporting C4SLs… I just support good sense. Regards Christopher Taylor Enforcement Officer Regulatory Services Brent Council Tel: 020 8937 5159 Fax: 020 8937 5150 www.brent.gov.uk From: Simon Ware [mailto:[log in to unmask]] Sent: 17 July 2014 10:28 To: Taylor, Christopher Cc: CONTAMINATED-LAND-STRATEGIES Subject: Re: CIEH Statement Chris C4SL have changed to low risk instead of minimal risk by changing the way the tox is calculated and the risk factor from 1:100,000 to 1:50,000. I have no problem with this in the Part IIa context but not so sure it is appropriate within the planning context. The NPPF states that "as a mimimum, land should not be cabale of being determined as contaminated land under Part IIa". To me this implies that the land should be cleaned up to stricter standard than is required under Part IIa, otherwise the term "minimum" would not have been included. I believe that this is the view that CIEH are making in their statement. Whilst the introduction of the C4SL is welcomed for Part IIa sites, which may have been unnecessarily determined in past by Local Authorities, I would question your comment that adoption of GAC has lead to unnecessary remediation comprising dig and dump in the planning context. Nobody should be remediating in planning context on the basis of GAC as they represent conservative assumptions/worst case scenarios and the next step within the CLR-11 framework is to conduct further assessments (via deriving site specitic criteria & adoption of pathway control measures). Developers may have in the the past selected dig and dump as it was quicker and cheaper, but now this is very rare following the introduction of landfill tax, the CLAIRE Code of Practice material management plans and the BRE Cover System in back gardens. I honestly cannot remember the last dig and dump project I was involved with on a development site so it is not a "very common practice" in my experience. Even if it were a common practice so what....future residents would be protected, which is surely what the purpose of planning is all about. It also seems strange to me that many CLO/EHO seem to be supporting the use of the C4SL within the planning context, whereas it is the consultants who are more against it....maybe I am missing something. On 17 July 2014 09:00, Taylor, Christopher <[log in to unmask]> wrote: Hi James Quick questions... why are you concerned about deviating from minimal risk? Why do you want to "protect public health to the highest possible standard"? (it's the highest reasonable standard you want) The NPPF sets the framework for our Planning policies. S120 of the NPPF states: "To prevent unacceptable risks from pollution and land instability, planning policies and decisions should ensure that new development is appropriate for its location." It does not say "Planning policies should ensure a minimal level of risk following development." We have a set of numbers. They are based on HCVs representative of minimal risk. A set of numbers is convenient to use in RA. LA's have received reports for many years where decisions by developers to remediate have been based on (sometimes marginal) exceedances of minimal risk levels. LAs have approved these (why not… if the developer wants to spend his cash lowering the risk level even more that's fine by me). We have got used to seeing minimal risk levels used as the default intervention levels. Now we are faced with a higher risk level and it makes us uncomfortable…. But wait…look at the old PPS23, look at the NPPF.. nowhere does it state that the LPA must insist on minimal risk, just the removal of unacceptable risk. C4SLs provide a level that: 1. Is still precautionary 2. Has undergone substantial consultation/3rd party review 3. Are beyond Part 2A intervention 4. Are endorsed by Defra 5. Are signposted by the DCLG 6. Represent a low risk to human health 7. Can potentially alleviate the very real common practice of unnecessary remediation where RA = GQRA only = Exceedance of minimal risk value = automatic dig and dump. My Council's approach is to follow the advice of the Government Departments. Regards Christopher Taylor Enforcement Officer Regulatory Services Brent Council Tel: 020 8937 5159 <tel:020%208937%205159> Fax: 020 8937 5150 <tel:020%208937%205150> www.brent.gov.uk <http://www.brent.gov.uk> -----Original Message----- From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of Langley James Sent: 16 July 2014 17:17 To: [log in to unmask] Subject: Re: CIEH Statement This is all well and good, but this now appears to be a policy decision made by the DCLG and when interpreting their recent guidance it appears to advocate their use as part of redevelopment of land contaminated sites. " If there is a reason to believe contamination could be an issue, developers should provide proportionate but sufficient site investigation information (a risk assessment) to determine the existence or otherwise of contamination, its nature and extent, the risks it may pose and to whom/what (the ‘receptors’) so that these risks can be assessed and satisfactorily reduced to an acceptable level. Defra has published a policy companion document considering the use of ‘Category 4 Screening Levels’ in providing a simple test for deciding when land is suitable for use and definitely not contaminated land. A risk assessment of land affected by contamination should inform an Environmental Impact Assessment if one is required." Whilst personally, I would prefer to follow minimal risk approach in planning to ultimately protect public health to the highest possible standard, this policy decision by the DCLG leaves Local Planning Authorities open to challenge and costly appeals if they deviate from the published planning guidance. This is real concern for me. I am not a planning expert and I'm not sure how much clout we have as CLO's to influence and change our strategic local plans to impose a "suitable for use" policy based on minimal risk. My feeling is that this could take years as the plans have to go through several stages of consultation and drafting. Our Local Plan has recently been through consultation in 2013, before the C4SLs were published, so we have no local 'policy' with regard to what we will accept at the present time. I would be interested to hear from other authorities and developers/consultants on how they will be approaching this. Regards James Langley BEng(Hons) ACSM MSc MIEnvSc CSci Environmental Protection Officer Public Health and Protection Cornwall Council Tel: 01726 223517 <tel:01726%20223517> Fax: 01726 223554 <tel:01726%20223554> [log in to unmask] Room 236, 39 Penwinnick Road, St Austell, Cornwall www.cornwall.gov.uk Please let us know if you need any particular assistance from us, such as facilities to help with mobility, vision or hearing, or information in a different format. P Please consider the environment. Do you really need to print this email? -----Original Message----- From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of David E Jackson Sent: 16 July 2014 16:21 To: [log in to unmask] Subject: CIEH Statement Did anybody see the CIEH statement on the suitability/principle of C4SL for planning uses? http://www.cieh.org/WorkArea/showcontent.aspx?id=53476 (Light blue touch paper... stand well back!) 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