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The judgement is more complex than don’t add an ‘unless otherwise agreed’ clause to conditions. The judge struck down the clause added to one condition as its could allow development they had not applied for and abused planning process clarity and accountability. He upheld another condition one who’s extra words ensured it was clear what the scope of flexibility sought was minor variation and NOT development of different scale and impact. So you can have the clause if the intention is clear its minor change or perhaps not doing something if its not needed . if its going to flip a site assessment and remediation program between 2 different alternatives then its going to be unlawful and the whole consent may fall. In the context suggested I would expect adding soil gas control measures to a site under unless otherwise agreed would not to be lawful. Its pretty material to the builder , later occupiers, etc , it will also bypass removing permitted development rights which can help reduce extensions etc immediately compromising the soil gas mitigation. The legal commentary does make the point that using condition amendments methods is probably better than any ‘other wise agreed’ clause, planners have powers to decide both material and non-material amendments formally. The DCLG standard planning condition for land contamination is pretty awful for its emphasis on work before development commencing and I would never recommend nor do the EA use it (at least in my region) despite that it occasionally gets put on a by some planners and inspectors. http://www.landmarkchambers.co.uk/userfiles/documents/resources/Planning_and_Environmental_Case_Law_Update_-_Richard_Moules.pdf Regards Martin Wright Senior Regulatory Services Officer Regulatory Services Cheshire West and Chester Council From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of Fiona Quinn Sent: 13 June 2018 12:35 To: [log in to unmask] Subject: Re: Asbestos associated with demolition Hi Nicola, We received the advice below from our planning colleagues recently regarding the use of wording such as ‘Unless otherwise agreed by the Local Planning Authority’. Such wording is unlawful, and has been for some time (2011). Relevant case law below for anyone who is interested….. Planning conditions often have words at the end of the condition which seek to allow the planning authority some control over the future regulation of the terms of the condition. Examples include: "No trading from the retail shop shall be carried out after 21:00 each day unless otherwise agreed with the local planning authority" "No use of the floodlighting columns shall take place after 21:00 hours or before 08:00 hours on any day without the prior written consent of the local planning authority". Tailpieces of this nature were considered in the case of R (on the application of Warley) v Wealden District Council. The intention of these words was to allow the authority to relax the condition and to allow a degree of flexibility without the need for a formal planning application to amend the permission. However the court found that it was unlawful, because it made uncertain what had been granted by the permission and would potentially allow development to take place which had not been permitted. The development which could be undertaken had not been assessed or considered, and the tailpiece sidestepped the statutory process for varying conditions. It was considered that the public was entitled to know from public documents the development for which permission had been granted. The tailpiece left that uncertain and did not indicate who was to determine any variation nor the criteria on which the decision was to be based. The judge held that it was possible to delete the offending words from the condition in the Wealden case, leaving the condition and the permission in place. However if it had not been possible to do so, the whole permission would fail. Kind regards, Fiona Fiona Quinn Principal Environmental Health Officer Environmental Quality and Growth | Environmental Services | Cambridge City Council PO Box 700 | Cambridge | CB1 0JH [log in to unmask]<mailto:[log in to unmask]>| 01223 457734 cambridge.gov.uk<https://www.cambridge.gov.uk/> | facebook.com/camcitco<https://www.facebook.com/camcitco> | twitter.com/camcitco<https://twitter.com/camcitco> From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of Nicola Slade Sent: 13 June 2018 11:48 To: [log in to unmask] Subject: Re: Asbestos associated with demolition Hi Julia Are you able to get the condition varied from 'pre-commencement' to either 'pre-occupation' or 'post-demolition and pre-construction'? If so, then the ground investigation can be carried out once the building is down and cleared. As well as the example you give of demolition and the potential for asbestos fibres to impact the surrounding land, I'm increasingly finding that pre-commencement conditions get scuppered because (understandably), where soil removal and replacement or a cover system is agreed, the developer doesn't want to establish this then run construction vehicles over newly laid topsoil etc. With a pre-occupation condition any removal of contaminated soil can be carried out, then the building built, then the cover system and landscaping put in place. Similarly, if ground conditions indicate that gas protection measures need to be incorporated into the build, these will need to be installed and verified for the condition to be discharged but if the condition is pre-commencement then there is a Catch 22 situation. Sometimes it is absolutely appropriate for a condition to be pre-commencement. In this case, to avoid the potential delay where an application may need to be varied, the wording of the condition can start "Unless otherwise agreed by the Local Planning Authority, the following must be undertaken prior to any development on site". The first eight words provide, if deemed necessary, a simple mechanism to change from pre-commencement to whatever is more appropriate without an application for a variation needing to be made. Regards, Nicola Slade BSc(Hons), MSc, MCIWEM, C.WEM, CEnv, SiLC Contaminated Land Officer Epsom & Ewell Borough Council Tel: 01372 732404 [log in to unmask]<mailto:[log in to unmask]> Working 2 ½ days over Mondays, Tuesdays and Wednesdays -----Original Message----- From: Contaminated Land Management Discussion List <[log in to unmask]<mailto:[log in to unmask]>> On Behalf Of Julia Reynolds Sent: 13 June 2018 11:13 To: [log in to unmask]<mailto:[log in to unmask]> Subject: Asbestos associated with demolition Dear All Given the recent conversations regarding asbestos on this forum I would be very interested to hear your thoughts on the following matter. We have a planning condition requiring SI prior to any development works (which includes demolition). We recognise that the demolition of a structure which contains asbestos has the potential to contaminate soils on site with asbestos and this could go undetected. In order to address this we use a further planning condition which requests confirmation that all asbestos was removed from the building prior to demolition. What is everyone’s view on this matter? • Is this unnecessary because the HSE deals with the removal of ALL asbestos in buildings prior to demolition? • Is the requirement for written confirmation that ALL asbestos was removed prior to demolition pointless because no asbestos removal company could guarantee that ALL asbestos was removed due to the inevitable presence inaccessible areas at the time of the survey? • Should we require that everyone does post demolition soil sampling to demonstrate that the demolition process has not contaminated the soils with asbestos? Any thoughts you have would be much appreciated. Kind regards Julia ######################################################################## To unsubscribe from the CONTAMINATED-LAND-STRATEGIES list, click the following link: https://www.jiscmail.ac.uk/cgi-bin/webadmin?SUBED1=CONTAMINATED-LAND-STRATEGIES&A=1 This message has been scanned and no issues discovered. To report this email as SPAM, please forward it to [log in to unmask]<mailto:[log in to unmask]> ******************************************************************** The information contained in this message is confidential and may be legally privileged. The message is intended solely for the addressee(s). If you are not the intended recipient, you are hereby notified that any use, dissemination, or reproduction is strictly prohibited and may be unlawful. If you are not the intended recipient, please contact the sender by return e-mail and destroy all copies of the original message. 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