environment magazine

Supporting Brownfield Development

By Michael Lunn, Director of Policy and Public Affairs, Environmental Industries Commission (EIC)

The Environmental Industries Commission (EIC) has welcomed David Cameron’s comments about the business opportunities for British companies of the Green Economy. However, there has been increasing frustration within the environment technology and services industry of the lack of detail, and engagement of Ministers to address certain concerns of the industry, which would help and accelerate green jobs, innovation, investment and accelerate growth in the green economy. The Environmental Industries Commission has been at the forefront of the Green Economy for over 15 years and has many successes in this time in influencing the environmental policy regime. Our Members are the Green Economy – the reality behind the rhetoric.

The Environmental Industries Commission recognises the challenges of the national debt that government departments have had to address, but we also challenge the Government to see the Green Economy as an investment not a cost. The Government has the opportunity to drive a ‘new green economy’ in the UK to exploit creating a £3 trillion export market in the process. The Coalition’s agreed ‘Programme for Government’ speaks of the need to ‘promote the green industries that are so essential for our future’, and sets the ambitious aim of being the ‘greenest government ever’. The Coalition Government need to realise that for every supportive policy for the environmental industry it will see many more in return through investment, innovation, and new green jobs.

In 2007 it was estimated that 62,130 hectares of previously developed land in England alone. Local planning authorities have estimated that 26,510 hectares (43 per cent) of this is potentially suitable for housing and could provide around 1,051,000 dwellings. Given the UK’s ambitious house building targets, EIC believe that it is vital that development of these sites continues to be viable and that we retain the skills to deal with the challenges they bring.

The UK’s contaminated land sector is worth £1 billion a year and employs almost 8,000 people. The sector is expected to grow by almost 3.5 per cent per year between now and 2015, with the number of jobs expected to increase to 10,000 over the same period.

Despite these huge business and employment opportunities, current market conditions could drive development away from more complex and challenging brownfield sites, to what is perceived to be easier/cheaper greenfield plots.

Risk Assessment of Contaminated Land

There are currently two key pieces of policy that require risk assessment of potentially contaminated land.

First, Part IIA of the Environmental Protection Act 1990, which was introduced in 2000, requires local authorities to identify existing sites that, as a result of contamination, pose an unacceptable risk to human health of the environment. Such sites may then be determined as ‘contaminated land’ and steps should be taken to reduce the risks to acceptable levels.

Although the identification and remediation of contaminated land in this way is an important element of many local authorities’ work, the vast majority of contaminated sites are dealt with through the planning process. For developers, the key policy has been Planning Policy Statement 23 (PPS23), which employs the “suitable for use” approach. Developers have to satisfy the local authority planning department that contamination at the site will not pose an unacceptable risk to humans or the environment during or after redevelopment.

In both cases the definition of “contaminated land” is based on the presence of unacceptable risk. Whilst EIC supports a risk-based approach to dealing with contamination, a key barrier to developing brownfield sites is the lack of certainty amongst local authorities over what “unacceptable risk” means with respect to the risk of significant harm to human health. This adds considerable time and expense to all developments on brownfield sites running into many millions of pounds annually. The lack of guidance is a significant obstacle to local authority progress in implementing the Part IIA regime governing contaminated sites and can lead to housing on brownfield sites being blighted.

EIC urge the Government to set legal limits for land contamination for local authorities to use to define “unacceptable risk” to human health or the environment from contaminated land and, therefore, the trigger point at which land must be remediated.

These legal limits must be adopted in the forthcoming Statutory Guidance for the Contaminated Land Regime Under Part IIA.

The Government has recently announced a review of the Statutory Guidance underpinning Part IIA. EIC believe that this a perfect opportunity to revise the Statutory Guidance to provide much greater clarity around the meaning of “Significant Possibility of Significant Harm” (SPOSH) and how it should be assessed.

It is vital that the Government also ensures that the interface between Planning and Part IIA is clear and unambiguous – Government Departments should work closely together to ensure this, and it is not sufficient to leave such co-ordination to chance – see below for comments on the planning regime.

The revised Statutory Guidance should also make a firm and unambiguous statement that land contamination issues are best dealt with through either the planning regime or through voluntary action, and Part IIA should only be applied where a site meets the definition of contaminated and effective action cannot be achieved by either planning or voluntary action. National Planning Policy

We understand that national planning policy (Planning Policy Guidance and Planning Policy Statements) will be replaced by a single national planning framework.  Of particular concern to the brownfield development industry is the proposed withdrawal and replacement of PPS23 (and its Annex 2) by a short and focussed note.

Our concerns reflect our opinion of the critically important and positive role that PPS23 has played in the regeneration of brownfield sites over the last six years.  It is our strong recommendation that the key elements of PPS23 must be retained in any new guidance, or we risk a return to the unplanned (and potentially unsafe) redevelopment of brownfield sites that took place up until the relatively recent past.

While those working in the Contaminated Land Remediation industry have struggled with the complexity of much of the regulation and guidance, as well as the on-going difficulties of threshold values and  the definition of “significant possibility of significant harm” (SPOSH), the clarity of PPS23 has provided a welcome model approach.

Maintaining and progressing that forward momentum is undoubtedly a challenge.  An indication of just how much change there has been in the guidance over the last few years is illustrated by the volume of key documentation with respect to land contamination and which is cross referenced in PPS23.  An essential role of PPS23 has been the signposting to sources of critical information.  It is imperative that any replacement document to PPS23 retains that function and the opportunity is taken to reference all of the current guidance and advice.

Although there is some repetition of advice within PPS23 (Annex 2) this repetition is entirely helpful.  The roles and responsibilities of all parties within the contaminated land community are clearly set out, each in their own section of text with the developer specifically told what information they as the applicant has to provide and local authority provided with clear guidance on matters to consider when determining a planning application.  The mirroring of the guidance provided in these separate sections leaves no room for doubt and must assist in bringing the expectations of all parties closer together.

In reviewing the guidance that is presented in PPS23, we have identified a number of critical elements that must be retained (and in some cases strengthened) in the Government’s proposed revised guidance if it is to be properly effective within the new planning regime. 

We, therefore, strongly recommend that DCLG ensure that the new planning policy guidance on land affected by contamination: • retains a clear and unequivocal statement that contamination is a material planning consideration;

• draws attention to the opportunities presented by redevelopment to mitigate the risks posed by land affected by contamination

• includes critically important statements on the relationship between Part 11A and the planning regime (e.g. ‘As a minimum, following development, land should not be capable of being Determined under Part11A)’;

• strongly advises the local planning authority to always consult their contaminated land officers on Brownfield redevelopment sites; • stresses that it is the developer’s responsibility to carry out the necessary investigation, assessment and remediation;

• clearly states that the minimum information required from the applicant is a report of a desk study and walkover survey;

• maintains the position that the required standard of remediation is the removal of unacceptable risk and making the site ‘suitable for use’;

• promotes the use of competent professionals to  undertake the assessment of land, for example the SiLC scheme promotes an appropriate level of competence across the many skill areas involved in Brownfield sites.

National Framework for Brownfield Development

The High Court decision that Corby Council was liable for birth defects in local children whose mothers were exposed to toxic pollutants in the air paints a bleak picture of the management and remediation of a Brownfield site in the UK. The case concerned the reclamation works at Corby’s former British Steel plant between 1985 and 1999 where toxic waste was carried from the site in open lorries.

Although some commentators may suggest that the Corby site is a ‘one off’, due to its size and history, others will not agree. Whatever the official view of the outcome of the Corby case, there will be some negative effects including public perception and inward investors/funders confidence on brownfield land projects.

Following Corby, EIC Members have reported that they still encounter a lack of suitable standards in Government and local authority procurement and development of brownfield land. This must be addressed as a matter of urgency to avoid any further examples of poor practice putting human health at risk.

EIC urges the Government to adopt a National Framework for Brownfield Development with criteria that should be applied to all development projects on brownfield land, covering:

• Insurance – when a local authority tenders for services, it is essential that they require evidence of relevant experience of similar projects and of the contractors or specific project insurance cover.

• Liability – contractor’s terms and conditions should not be accepted if they exclude liability of the nature suffered at Corby, whether or not insurance is obtained. Advice should be sought, depending on the size of the project, as to any overall limit on liability. However, the Government’s current tender requests for unlimited liability are both market restrictive and unsustainable. It is a flawed approach to procurement as the companies that agree to such contracts may be unable to respond to future claims. Whilst it is essential that central and local Government ensure that the appropriate liability is in place for all development projects on brownfield land, it is inappropriate to expect contractors to accept “unlimited liability” as a condition of the contract. Testing – the testing of soil and waters on contaminated sites must be performed by an MCERTS accredited laboratory, which can be enforced as a condition of planning consent.

• Competency of persons carrying out remediation – EIC Members still report seeing some very poor procurement practices and a lack of understanding of the risks involved with such projects. The result can be the engagement of a consultant who may not have the level of experience required to understand all the issues and risks associated with the remediation of contaminated land sites.