Development of Potentially Contaminated Land – Guidance Note for Developers, Agents and Consultants

Helping you get it right 

CONTENTS    								  Page No
1.0	INTRODUCTION
	2	
2.0 WHAT IS CONTAMINATED LAND
		
3.0 PLANNING DEFINITION	
	3	
4.0 THE DEVELOPERS RESPONSIBILITY	
		
5.0 WHEN TO CONSIDER CONTAMINATION
	4	
6.0 LIASON WITH THE COUNCIL
	5	
7.0 INFORMATION REQUIRED FROM THE APPLICANT
           7.1 Planning Conditions
			
6	
8.0 CHOSING A CONSULTANT
							7	
9.0 THE SITE INVESTIGATION PROCEDURE
9.1  Phase I Investigation
9.2  Phase II Investigation
           9.3  Remediation Strategy
           9.4  Verification Report
	7
8
9	
10.0 GENERIC GUIDANCE
10.1 Obtaining Representative Samples
10.2 Sample Analysis 
10.3 Generic Quantitative Risk Assessment (GQRA) 
10.4 Detailed Quantitative Risk Assessment (DQRA) 
10.5 Cover Systems
10.6 Phased Development
10.7 Alternative Remediation 
	10

11

12
13
	
11.0	KEY REFERENCE DOCUMENTS 
	14	
12.0	CONTACTS
           12.1 Local Authority
12.2 The Environment Agency
	15
16	
APPENDIX A :  A Typical Example of a Contaminated Land Planning Procedure

	17	
							
1.0	INTRODUCTION

This guidance is aimed at site owners, developers and their consultants who may be involved in the assessment and management of land contamination. The purpose of this guide is to make developers aware of what information the Council may require in order to assess an application for planning permission. 

The Government’s planning advice on contaminated land is set out in Planning Policy Statement 23 (PPS 23) Planning and Pollution Control (2004) and Annex 2 to that document Development on Land Affected by Contamination. 

Both documents are available from the Department for Communities and Local Government website: www.communities.gov.uk 

2.0 	WHAT IS CONTAMINATED LAND

The legal definition of contaminated land (from Section 78A (2) of the Environmental Protection Act 1990) is: 

“ …any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that: 

(a) significant harm is being caused or there is the significant possibility of such harm being caused; or 

(b) pollution of controlled waters is being, or is likely to be, caused…” 

A key element of the regime is the Source-Pathway-Receptor pollutant linkage concept. Each element is defined as follows: 

•	the source is the contamination in, on or under the land 
•	the pathway is the route by which the contamination reaches the                                                                  receptor; and 
•	the receptor is defined as living organisms, ecological systems or property which may be harmed. 

Without the clear identification of all three elements of the pollutant linkage, land cannot be identified as contaminated land under the regime. 

Contaminating substances may include:

•	Metals, e.g. arsenic, cadmium, chromium, lead, nickel
•	Inorganic compounds e.g. cyanide, ammonium, chlorides
•	Organic substances e.g. oils, petrol, solvents, phenols, Polyaromatic
           Hydrocarbons (PAHs), Polychlorinated biphenyls (PCBs)
•	Gases e.g. methane, carbon dioxide, hydrogen sulphide, volatiles

There are several publications available which outline the types of contamination that may be present based on the usage of a site. These include ‘Potential contaminants of the assessment of land” (CLR 8) and the DoE series of Industrial Profiles both of which are available for download from the Environment Agency website www.environment-agency.gov.uk

Typical causes of land contamination include previous industrial or commercial use, mining and land filling of wastes. Land can become contaminated due to its proximity to contaminated areas. Land can also be contaminated in its natural state.

3.0	 PLANNING DEFINITION

The planning system uses a slightly different definition for contaminated land, within planning guidance (PPS23) the term “land affected by contamination” is used. This is intended to cover all cases where: 

“the actual or suspected presence of substances in, on or under the land may cause risks to people, human activities or the environment, regardless of whether or not the land meets the statutory definition in Part IIA”

The principal difference is that under the planning system, risks have to be assessed based upon the new or intended use of the land, rather than the existing use. 

However, the principles underlying both regimes are fundamentally the same, namely, the identification and remediation of land which may pose a risk to human health and/or the environment. 

4.0	 THE DEVELOPERS RESPONSIBILITY

Where development is proposed, the developer is responsible for ensuring that development is safe and suitable for use for the purpose for which it is intended. The developer is therefore responsible for determining whether land is suitable for a particular development, or can be made so by remedial action.

 In order to demonstrate this, the developer should determine:

i. Whether the land in question is already affected by contamination through source-pathway-receptor pollutant linkages;

ii. Whether the proposed development will create new linkages, e.g. new pathways by which existing contamination might reach existing or proposed receptors and whether it will introduce new vulnerable receptors, and

iii. What action is needed to break those linkages and avoid new ones, deal with any unacceptable risks and enable safe development and future occupancy of the site and neighbouring land.

A potential developer will need to satisfy the local authority that unacceptable risk from contamination will be successfully addressed through remediation without undue environmental impact during and following the development.

Failure to appropriately address risks from land affected by contamination at the time of development may result in later action being taken under Part IIA of EPA 1990. 

5.0 	WHEN TO CONSIDER CONTAMINATION 

When considering submitting a planning application, developers are required
by the LPA to carry out their own investigations where:

•	the proposed use of the land will be most vulnerable to any past contamination e.g. residential properties, schools, allotments etc, or

•	current circumstances or past use of the land/surrounding land suggest that contamination may be present; or

•	where other relevant information suggests contamination may be an issue, e.g. historical chemical spill, illegal disposal, natural contamination etc.

Box 1.1 lists examples of sites where the possibility of contamination should be considered as part of planning applications. It is by no means exhaustive and also includes land that does not strictly meet the definition of previously developed land (Brownfield land).

Box 1.1: Examples where the possibility of contamination should be considered for planning applications 

 • Where the development/application is for housing, school, hospital, residential home, park or other “open” recreation land;
• Where the land is currently being used for any of the following categories in the National Land Use Database of Previously Developed Land V2.2 October 2000
-Industrial and Commercial
-Mineral workings and quarries or Landfill waste disposal
-Defence land and buildings
-Agricultural buildings;
• Where it is known or suspected that the land was previously used for any of these purposes;
• Where it is known or suspected that the land may have been radioactively contaminated or have natural radon or methane contamination;
• Where other land nearby, is being, or has been used for one of the above purposes such that it may have had an impact on land subject to the planning application;
• Where the land has been reclaimed, re-contoured or “filled” – whether by landfill or otherwise;
• Where it is known that, or there appear to have been “spills” or other pollution incidents.

6.0	 LIASON WITH THE COUNCIL 

Where a developer is proposing to develop land which may be contaminated or is likely to have a particularly sensitive end use, it is advisable to contact Development Control (development_control@bathnes.gov.uk) and Environmental Protection (environmental_protection@bathnes.gov.uk)  teams to discuss land contamination issues and obtain advice before submitting a planning application as this liaison should prevent time delays and misunderstandings at a later stage in the development.  

At the pre-application stage, we can offer advice about the level of information Bath and North East Somerset Council needs in support of an application and indicate what information the Contaminated Land Officer may hold in relation to a given site. 

7.0	INFORMATION REQUIRED FROM THE APPLICANT

The minimum requirement that should be provided by an applicant with an application is the report of a desk study and site reconnaissance (walk-over). This will, in some cases, be sufficient to develop a conceptual model of the source of contamination and pathways by which it might reach vulnerable receptors as well as the means by which the identified pollutant linkages can be broken. 

In certain circumstances, the Local Planning Authority (LPA) may request that site investigations, risk assessments and remediation options appraisal are carried out prior to determining an application. This is likely to be requested for developments on sites where significant contamination is known or is likely to be present. 

It is essential that the developer and their agents provide as much information to the LPA as possible at every stage of the planning process. Withholding information, however trivial, may cause a delay to the application. The onus is on the applicant to keep the LPA well informed about the development at all times so that decisions can be made swiftly and the application process completed as quickly as possible. 

If your investigations prove to the Council’s satisfaction that there is no contamination problem then generally no further action will be necessary. Once this has been confirmed by the Council in writing you will then be able to proceed with your development.  

7.1	Planning Conditions 

In the event that planning permission is forthcoming, it is likely that planning conditions will have been made in relation to contamination. The conditions include site investigation, risk assessment, remediation strategy, unforeseen contamination, imported materials, gas monitoring and verification reporting. Some or all of these conditions may be imposed depending on the specific application circumstances and the amount of information available to the LPA. 

If your approved application does contain contaminated land conditions, please read them very carefully as they are likely to require actions and approvals prior to commencement of any development works. 

Contaminated land is a serious planning issue. Legal action can be taken by this Authority (and other regulatory bodies) in cases of non-compliance. Actions which can be taken by the Council to enforce a contaminated land condition include: 

•	Power to enter and investigate 
•	Power to stop the development if it is already in progress 
•	Requirement for post development remediation works prior to the site being put into use or occupied 

The Council may also ask for planning obligations to be placed upon a development. 
8.0	CHOOSING A CONSULTANT

The need for care when selecting a competent and suitably qualified and experienced consultant is fundamental to producing a credible and appropriate contaminated land assessment. 

Consultants or companies who can carry out the work can be found on in the Environmental Consultancy Directory produced by ENDS (Environmental Data Services) which can be accessed at www.endsdirectory.com.  Unfortunately we are unable to recommend particular individuals or companies.

We will have no option but to reject reports or require further information in cases where assessment has not been carried out in accordance with current guidance or fails to establish confidence in the findings and conclusions reached. 

9.0 	THE SITE INVESTIGATION PROCEDURE 

A flowchart illustrating a typical example of the contaminated land planning procedure can be found in Appendix A.

The guidance contained within this section aims to inform developers of the procedural requirements of a risk-based approach to land contamination, as defined in current UK legislation and guidance. 

The technical framework for investigation and dealing with land affected by contamination is contained within the document CLR 11 Model Procedures for the Management of Land Contamination. The process involves identifying, making decisions on and taking appropriate action to deal with land contamination in a way that is consistent with government policies and legislation within the UK. 

The approach outlined in this Guidance Note is consistent with the CLR 11 technical framework and is based on a staged or tiered approach to risk assessment, which includes the following three key elements:

•	Preliminary Risk Assessment
•	Generic Quantitative Risk Assessment (GQRA)
•	Detailed Quantitative Risk Assessment (DQRA)

A preliminary risk assessment generally involves developing a conceptual model which identifies possible pollutant linkages at the site. The conceptual model may then be used to determine if any further assessment is required. If this preliminary assessment clearly demonstrates that contamination at the site poses no unacceptable risk (i.e. no source-pathway-receptor relationships) then quantitative assessments may not be required.

The procedure for investigating a potentially contaminated site would be expected to meet the criteria outlined in the British Standard (BS) 10175 Investigation of Potentially Contaminated Sites – Code of Practice. Typically, a report submitted in support of a planning application would generally include the following four components:

•	Phase I investigation
•	Phase II investigation
•	Remediation strategy 
•	Verification Report

9.1 Phase I Investigation

A Phase I investigation should provide a preliminary qualitative assessment of risk by interpreting information on a site’s history considering the likelihood of pollutant linkages being present. The Phase I investigation typically consists of a desk study, site walkover, development of a conceptual model and preliminary risk assessment.

The desk study comprises a search of available information and historical maps, which can be used to identify the likelihood of contamination being present. 

A simple site walkover survey of the site is conducted to identify if there are any obvious signs of contamination at the surface. 

A conceptual model is representative (text and/or graphics) of the relationship(s) between contamination source(s), pathway(s) and receptor(s) developed on the basis of risk identification. Developing a conceptual model should be viewed as an iterative process that should be refined during subsequent phases of assessment.

Using the information gathered, the conceptual model of the site is constructed and a preliminary risk assessment is carried out.

9.2 Phase II Investigation

A Phase II investigation aims to reduce the uncertainties identified in the initial
conceptual model by quantifying potential contamination at the site. The data
obtained will be used to inform a decision as to whether the site is potentially harmful.

A Phase II report generally consists of an intrusive site investigation and a
subsequent risk assessment. The investigation process should seek to clearly
identify and characterise plausible source-pathway-receptor linkages at the site and provide information for the refinement of the initial conceptual model.

9.3 Remediation Strategy

This is a document detailing what action is to be carried out so that contamination no longer presents a risk to site users or ecological systems. It may include measures such as the removal of contamination, encapsulation of the contaminants, treatment of the contaminants or measures to break the pollutant linkages. Please note that Government policy encourages sustainable methods of remediation.

A remediation strategy should be submitted where a site investigation identifies levels of contamination that will require remediation prior to the site being suitable for its intended use. This statement should include full details of how the contamination problem at the site will be addressed and demonstrate that the standard of remediation work complies with current best practice and guidance. This must be approved by the LPA before any remedial actions at the site commence.

9.4 Verification Report

Where contamination has been found and remediated, the developer will be required to submit a verification report. In certain circumstances it may be necessary for the developer to conduct post-completion monitoring. This should be undertaken to the approval of the LPA and results of the monitoring should be submitted for review.

For limited remediation works or protective works, a verification statement alone may be acceptable, but prior confirmation of this should be obtained from the LPA.

The verification report should provide confirmation that all measures outlined in the approved remediation statement have been successfully completed, including where appropriate, validation testing.

On large schemes where development may be phased, progressive discharge of conditions may be possible provided a satisfactory verification report is received for each phase.

Recommendations to discharge contaminated land conditions will only be made once the Contaminated Land Officer has received and approved a satisfactory Verification Report.

10.0 GENERIC GUIDANCE 

The complexity of contaminated land technical guidance, coupled with individual site variability, makes it difficult to produce comprehensive guidance applicable to every situation. 

However, when assessing the adequacy of a site investigation, a number of common problems frequently arise. These generally relate to areas where technical guidance may be complex or incomplete. In an attempt to minimise the occurrence of these problems this section highlights recurring problem areas and key points that are of particular importance. 

10.1 Obtaining Representative Samples 

All sampling strategies should be designed to provide data that is representative of the site conditions as a whole. Sampling should be undertaken in accordance with recognised sample collection methodology and guidance, with reference made to recommendations within BS 10175. Reference to the historical site information obtained from the desk top study is essential in order to target possible sources of contamination and to ensure that an appropriate suite of analysis is performed. Justification for the chosen sampling regime and analysis suite should be clearly set out in the site investigation report. 

10.2 Sample Analysis 

A suitably accredited laboratory should be used to undertake analysis of samples. The site investigation should include a detailed plan showing the location of sampling points and accreditation details of the analytical technique used, together with summary tables of results. A full set of results including where appropriate, borehole logs, should be included. 

10.3 Generic Quantitative Risk Assessment (GQRA) 

Historically, many developers relied heavily on the use of the ICRCL ‘trigger’ and ‘action’ values for assessing human health risks associated with contaminated land. However, the Department for Environment, Food and Rural Affairs (DEFRA) formally withdrew ICRCL Guidance note 59/83 in December 2002. Bath and North East Somerset Council will not accept risk assessments based upon the use of ICRCL trigger or action values. 

If generic assessment criteria are to be used, it should be demonstrated that they conform to current UK Government policy objectives, guidance and legislation. The Contaminated Land Exposure Assessment Model (CLEA) and associated Soil Guideline Values (SGV's) have been specifically designed to meet this criterion. Where an SGV does not exist for a particular substance, site specific target levels should be calculated based on suitable risk assessment methodologies.

At present only a limited number of SGV's have been published, which cover three typical land uses; residential, allotments and commercial/industrial. For further details refer to CLR7 Assessment of Risks to Human Health from Land Contamination: An Overview of the Development of Soil Guideline Values and Related Research.

It is usually inappropriate to apply quantitative criteria developed outside the UK, to UK sites, as different assumptions have been made to reflect different behaviour patterns, local soil types, other technical factors and local policies. 

Where non-UK contaminated land quantitative criteria are used e.g. Dutch or USEPA, their use must be fully justified within the report. This would be expected to include a discussion of the conceptual model and assumptions used to derive the generic criteria together with an assessment of the underpinning toxicological data. 

10.4 Detailed Quantitative Risk Assessment (DQRA) 

A risk assessment using site specific criteria and assumptions may be undertaken if comparison of the site data to generic assessment criteria has identified a potential risk, or, if suitable generic assessment criteria are not available. 

This assessment is usually undertaken using one of a number of commercially available risk assessment tools. The Environment Agency has prepared a series of fact sheets describing the key features of a number of these models, which can be found at the following link:  http://www.environment-agency.gov.uk Whatever model is used, it is important to demonstrate that the chosen risk assessment methodology is comparable with the conceptual model for your site. 

 	10.5 Cover Systems 

It is not uncommon for developers to use a simple cover system in garden and landscaped areas in order to improve the amenity/quality of a site and to provide a suitable medium for plant growth. 

However, where a cover system is required to provide a safe and permanent barrier between any ‘significant’ levels of buried contamination and residents/site users, an engineered cover system should be installed. 

There is currently no definitive guidance available that is able to adequately address the design of either of these cover systems. Therefore, in order to minimise risks to future residents, a conservative approach should be adopted to both engineered and simple cover systems. 

It would seem reasonable to anticipate that future site users may wish to ‘double dig’ garden areas. Therefore, a minimum two-spade depth of 600mm together with a break layer to prevent mixing is recommended. 

Where an engineered cover system is chosen to act as a break in the pollutant linkage between the receptor from the hazard, in either garden or landscaped areas a minimum depth of 600mm should be used. Typically, the 600mm would be expected to consist of, 

- 150mm of uncontaminated topsoil 
- 450mm of uncontaminated subsoil 
- either a granular capillary break layer (100mm hardcore) and/or a suitable geotextile membrane 

In certain circumstances, where it can be demonstrated that future activities will not result in soil mixing, it may be acceptable to use a shallower depth of cover material. This would require prior written approval from the LPA. An additional consideration when planting landscaped areas is that BS 388213 recommends the following provision of suitable soils for healthy rooting and growth of plants: 450mm for grass, 600mm for shrubs, and 900mm for trees, with no more than 300mm being topsoil, the rest being clean subsoil/parent material. 

When a cover system is used, a desk study should be provided with details of the source of the cover material. It should be demonstrated that the soil is free from contamination by supplying results of analytical tests. Justification for the analytical suite used should be included. Sampling densities should be justified and based on the findings of a desk study. It would be expected as an absolute minimum that sampling would consist of at least three samples for each source used and for large volumes at a single source, one sample for every 200m3. 

10.6 Phased Development 

Where possible, proposed phasing of a development to allow various phases to be brought into use prior to the completion of a development should be outlined clearly in the Remediation Strategy. 

10.7 Alternative Remediation 

Bath and North East Somerset Council actively encourages the use of innovative remediation techniques to deal with land contamination as long as they are shown to be effective and can be validated appropriately. Alternative techniques can result in cost savings and more sustainable remediation projects being undertaken. If you wish to discuss possible remediation options at your site, please contact the Contaminated Land Officer to discuss your proposals. 

11.0	 KEY REFERENCE DOCUMENTS 

1.	British Standards Institution, 2001, BS10175, Investigation of Potentially Contaminated Sites – Code of Practice and its Investigation 

2.	British Standards Institute BS 3882 (1994) Specification for Topsoil 

3.	Department of the Environment, 1994,  CLR Report No 1, A Framework for Assessing the Impact of Contaminated Land on Groundwater and Surface Water 

4.	Department of the Environment, 1994, CLR Report No 2, Guidance on Preliminary Site Inspection of Contaminated Land 

5.	Department of the Environment, 1994, CLR Report No 3, Documentary Research on Industrial Sites 

6.	Department of the Environment, 1994, CLR Report No 4, Sampling Strategies for Contaminated Land 

7.	Department of Environment, Food & Rural Affairs/Environment Agency, 2002, CLR Report No's 7 to 10, Toxicological Data and Soil Guideline Values Reports 

8.	Department of Environment, Transport and Regions, 1997, CLR Report No 12, A Quality Approach for Contaminated Land Consultancy [section 3.4 ‘Reporting’]. 

9.	Department of the Environment. Industry Profiles. (Wide range of industrial activities and potential contaminants listed)

10.	Environment Agency & NHBC, 2000, R&D Publication 66, Guidance for the Safe Development of Housing on Land Affected by Contamination 

11.	Environment Agency (2004) Model Procedures for The Management of Land Contamination CLR11

12.	 Environment Agency, 1999, R&D Publication 20, Methodology for the Derivation of Remedial Targets for Soil and Groundwater to Protect Water Resources 

13.	Environment Agency, 2005, Science Report P5-080/TR3, The UK Approach for Evaluating Human Health Risks from Petroleum Hydrocarbons in Soils

14.	 Environment Agency, 2004, Environment Agency Guidance on Requirements for Land Contamination Reports

15.	Harris, M R, Herbert, S M & Smith, M A, 1995-1998, CIRIA Special Publications 101-112, Remedial Treatment for Contaminated Land, 12 Volumes 

16.	Health & Safety Executive, 1991, Protection of Workers & the General Public during the Development of Contaminated Land 

17.	National House Building Council (NHBC), 1999, NHBC Standards Chapter 4.1, Land Quality – Managing Ground Conditions 

18.	Office of the Deputy Prime Minister, 2004, Planning Policy Statement 23: Planning and Pollution Control

19.	Office of the Deputy Prime Minister, 2004, Planning Policy Statement 23: Planning and Pollution Control Annex 2: Development on Land Affected by Contamination

12.0	CONTACTS

12.1 Local Authority

Contaminated Land Officer
Environmental Protection
9-10 Bath Street
Bath
BA1 1SN
Tel: (01225) 477550 
E-mail: environmental_protection@BATHNES.gov.uk

Planning Services
Trimbridge House
Trim Street
Bath
BA1 2DP
Tel: (01225) 394041
E-mail: development_control@bathnes.gov.uk

12.1 The Environment Agency

Although local authorities are the primary regulators of Part IIA, the Environment Agency assume the role when contamination is found to impact on controlled waters. Therefore, if a development is likely to impact on either surface waters or groundwater the advice of the Agency should be sought. 

The Environment Agency 
Rivers House 
East Quay 
Bridgewater 
Somerset TA6 4YS 
Tel: (08708) 506506 

Acknowledgements

Bath and North East Somerset Council would like to acknowledge the work of the Manchester Area Pollution Advisory Council (MAPAC) planning guidance sub-group, Manchester City Council’s Planning Guidance and Guidance produced by the Environment Agency

Appendix A: A Typical Example of a Contaminated Land Planning Procedure

DESK TOP STUDY: Identifies possible contamination?

Submit Planning Application with Stage 1 Investigations

Meet with LPA

Decision to proceed?

Assessed by Local Planning Authority

Ends 
(subject to appeal)

Consent Granted

Conditions and/ or legal agreement required?

Proceed with development

Carry out Stage 2 Investigations/ Risk Assessment:
Contamination Found?

Submit Remediation Strategy

Accepted by Local Planning Authority?

Complete Works

Submit Validation Report

Redesign Remediation Strategy

Accepted by Local Planning Authority?

Conditions Discharged

Complete Development

Re-do report / complete further works

Proceed with development

Ends 
(subject to appeal)

   
Yes

              Yes

     No

         No

  No

Yes

 
No

Yes

  No

Yes

Yes

  No

   No

Yes

Key:

            Developer

                 Actions

                  LPA Actions

NOTE: This is an example of more straight forward planning applications. For contaminated sites where a great deal of remedial works may be required, a Remediation Strategy may have to be submitted as part of a planning application