Cleaning up sites as part of the planning process
When making a planning application it becomes the responsibility of the applicant and developer to ensure that the site is not going to present a risk of harm to future users, the environment and property.
When the site is known or suspected to be affected by contamination, or there has been a previous use at the site, a planning application must be accompanied by a preliminary risk assessment which will include a desk study and a site walkover.
Most contaminated sites are dealt with as part of the planning application process and within building regulations, with the Council ensuring that any sites that are being redeveloped in this way are investigated and, if necessary, cleaned up (or remediated). This is done so that people can live and work at these sites without any risk of harm from the substances left in the soil by the previous occupiers of the site now or in the future.
The Essex Contaminated Land Consortium, which consists of representatives from all Essex Local Authorities, Essex County Council and the Environment Agency have produced a useful Technical Guidance for Applicants and Developers. This document aims to clarify and ensure consistency in the process and remediation of contaminated land.
Further information and advice relating to planning and contamination can be found on the following websites:
- Maldon District Council Building Control Service
- Maldon District Adopted replacement Local Plan - November 2005 (see Policy CON6)
- NHBC Building Control
- Department for Communities and Local Government (DCLG): Planning, Building and Environment
- EA Land contamination: technical guidance
Recommended reading:
Assessing risks posed by hazardous ground gases to buildings (revised) (C665D)
Cleaning up sites as part of the inspection process
We are required under the Environmental Protection Act 1980 (Part 2A), to inspect our areas from time to time to identify contaminated land and get it cleaned up (or remediated).
What is contaminated land?
The statutory definition of 'contaminated land' is:
- significant harm is being caused or there is significant possibility of such harm being caused for human beings ecological systems and living organisms within protected site or reserve property in the form of crops
- produce, livestock, owned or domesticated animals and wild animals subject to shooting or fishing rights property in the form of buildings and scheduled ancient monuments
- pollution of controlled waters (groundwater or surface water) is being, or is likely to be, caused
In order to identify whether land will meet this criteria some type of intrusive investigation work including laboratory testing is likely to be required. The results of the investigation will then be assessed to see whether any of the above elements are at risk of being exposed to any hazardous substances found at the site. If on balance of the probabilities, there is a risk the site can be determined as contaminated land.
What happens to sites identified as contaminated land?
When we have identified a site as being contaminated land there follows a formal process where we require the land to be brought to a condition that does not pose a risk of significant harm. To do this we have to determine who is responsible for the cost of cleaning up the land. These are either those who cause or 'knowingly permit' the pollutants to be in, on or under the land or owners or occupiers of the land. This has greater relevance for those in business who may operate a process that could cause contamination.
When we have found whom is responsible we will make requirements for the site to be remediated. We will encourage an informal solution in the first instance. If this cannot be reached, we have the enforcement powers to bring about a resolution. Whichever way is chosen the details referring to this action will be entered onto a pubic register (see below). In certain circumstances the enforcement is conducted by the Environment Agency when the Council determines that the land is a 'special site'.
The determination and apportionment of liability is a complex issue. Detailed information on the process including legal definitions can be found in the Statutory Guidance to Part 2A of the Environmental Protection Act 1990.
Does this apply to me?
It is possible that the current owner of the land or property would be liable to undertake and pay for any remediation. However, should individuals find themselves facing hardship as a result of such liabilities they may well be exempted from having to pay any costs.
A list of sites determined as contaminated land appear in our Public Register.