Legislative issues

The role of the planning system is to control future development and land use, therefore most land affected by contamination is dealt with through the planning system.

The National Planning Policy Framework was introduced in 2012, and this superceded previous government guidance, including the Planning Policy Guidance and Statements which were relevant to contaminated land and planning. Particularly relevant paragraphs in the framework are as follows:

Paragraph 109: The planning system should contribute to and enhance the natural and local environment by:

• protecting and enhancing valued landscapes, geological conservation interests and soils;
• recognising the wider benefits of ecosystem services;
• minimising impacts on biodiversity and providing net gains in biodiversity where possible, contributing to the Government’s commitment to halt the overall decline in biodiversity, including by establishing coherent ecological networks that are more resilient to current and future pressures;
• preventing both new and existing development from contributing to or being put at unacceptable risk from, or being adversely affected by unacceptable levels of soil, air, water or noise pollution or land instability; and
• remediating and mitigating despoiled, degraded, derelict, contaminated and unstable land, where appropriate.

Paragraph 111. Planning policies and decisions should encourage the effective use of land by re-using land that has been previously developed (brownfield land), provided that it is not of high environmental value. Local planning authorities may continue to consider the case for setting a locally appropriate target for the use of brownfield land.

Paragraph 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.

Paragraph 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.

Paragraph 122. In doing so, local planning authorities should focus on whether the development itself is an acceptable use of the land, and the impact of the use, rather than the control of processes or emissions themselves where these are subject to approval under pollution control regimes. Local planning authorities should assume that these regimes will operate effectively. Equally, where a planning decision has been made on a particular development, the planning issues should not be revisited through the permitting regimes operated by pollution control authorities.

The assessment of risk arising from contamination and remediation requirements should be considered on the basis of both the current and proposed use. The underlying approach to identifying and dealing with risk and the broad policy objective of safeguarding human health and the environment are similar for both regimes.

Thus the developer is responsible for ensuring that a development is safe and that the land is suitable for the use intended, or can be made so through remediation. The right information is crucial to good decision making and developers and their advisors should discuss what’s required with LPAs and statutory consultees before submitting planning applications (NPPF paragraphs 188 and 192). Failure to provide the right information can lead to delays and even refusal of planning permission.

In order to satisfy a LPA that risks from contamination will be appropriately addressed through remediation; developers should ensure that they carry out adequate investigations and risk assessments to inform remediation strategies. These should all be prepared by competent persons as defined in Annex 2 of the NPPF.

After remediation has been carried out, developers are responsible for showing the LPA that they have been successful. This could involve ongoing monitoring and the submission of verification reports.