Legal report

Catherine Davey, a partner at Stevens & Bolton LLP, Planning, 18 July 2008

The DCLG published a letter to chief planning officers at the end of May setting out revised model conditions for use by local planning authorities in England in connection with the development of land that is affected by contamination.

PPS23 on planning and pollution control states that applications for the development of sites with known or suspected contamination should be supported, at the very least, by a desk study and a site visit. If an application is submitted without an initial study, the local planning authority should require one to be provided. If this is not forthcoming, PPS23 recommends that the authority should reject the application.

Conditions replace appendices

The new conditions replace appendix 2B, annex 2 of PPS23 and paragraphs 56-59 of appendix A to Circular 11/1995 on the use of planning conditions. Conditions 1 to 3 follow the three-stage approach recommended in PPS23:

- Further site investigation and assessment of the risk.

- Preparation of a remediation scheme for approval by the local planning authority.

- Submission of a validation report showing that the remediation has been carried out effectively.

Conditions 4 and 5 look at recommendations in PPS23 relating to unsuspected contamination and subsequent monitoring.

Conditions 1 and 2 do not specify that site investigation, risk assessment or detailed remediation have to be carried out prior to commencing development. But a preamble to the document indicates that development other than that required to be carried out as part of an approved scheme of remediation should not start until conditions 1 to 4 have been complied with.

This requirement would need to be included as part of any conditions imposed so that it is clear at what stage compliance with the conditions, particularly 1 and 2, is required. It would be interesting to know whether the DCLG considered that conditions 1 to 4 should be satisfied prior to occupation of the development before issuing the models.

Paragraph 44 of DEFRA Circular 01/2006, which sets out the government's guidance on the contaminated land regime under the Environmental Protection Act 1990, provides that: "In any case where new development is taking place, it will be the responsibility of the developer to carry out the necessary remediation. In most cases, the enforcement of any remediation requirement will be through planning conditions and building control rather than through a remediation notice issued under part 2A."

Under part 2A of the act, contaminated land is defined as any land which, because of substances in, on or under it, appears to be in such a condition that significant harm to the environment or human health is being caused, there is a significant possibility of such harm being caused or water pollution is being or is likely to be caused.

Such harm needs to be assessed with reference to the land's use. This is defined in paragraph 11 of Circular 01/2006 as "the use which is currently being made of the land or is likely to be made of it and which is consistent with any existing planning permission or is otherwise lawful under the planning regime".

The model conditions do not use the part 2A regime's definition of contaminated land. They refer to land affected by contamination. The distinction is that part 2A looks at the current use of the land, whereas the planning regime considers the future use of the land.

Environmental regimes overlap

The two regimes overlap to the extent that the risk management process described in condition 1 must be carried out in accordance with the Environment Agency's model procedures for the management of land contamination. Condition 2 requires local planning authorities to ensure that a site does not qualify as contaminated land under part 2A in relation to the intended use of the land after remediation has been carried out under the planning regime.

As time has passed, it has become clear that the clean-up of sites affected by contamination is most likely to be achieved through planning conditions rather than clean-up programmes under the part 2A contaminated land regime. The model planning conditions will play a vital role in the redevelopment of brownfield land and should offer consistency to developers if authorities across England abide by them.