At full council on Wednesday 14th June 2017, Cllr Mary Lawes (pictured) asked the following question to Cllr Clive Goddard, Chairman of the Planning & Licensing Committee
“According to both the 2010 and 2014 Geotechnical reports produced by Ashdown site investigations ltd, Bigginswood site was known to be contaminated when approved, as defined in Part 2A of the Environmental Protection Act 1990.”
Cllr Clive Goddard’s (pictured) response was:
“The site is not contaminated as defined by Part 2A of the Environmental Protection Act 1990.”
So if the site is not defined as legally being contaminated, why then will the Council, a Developer or both need to spend money on re-mediating the land as there is no legal requirement for them to do so. Is it because they just wish to throw money at a problem, which they – Shepway District Council says does not exist? Is this value for money?
The Statutory Guidance sets out what requirement must be met for land to be considered contaminated.
At point 3.1 it states:
“risk” means the combination of: (a) the likelihood that harm, or pollution of
water, will occur as a result of contaminants in, on or under the land; and (b) the scale and seriousness of such harm or pollution if it did occur.
At 3.5 it states
Under Part 2A, risks should be considered only in relation to the current use of the land.
Under Part 2A, risks should be considered only in relation to the current use of the land.For the purposes of this Guidance, the “current use” means:
(b) Reasonable likely future uses of the land
Which we know to be development for 77 houses and 54 light industrial units.
At 3.8 it states
Under Part 2A, for a relevant risk to exist there needs to be one or more contaminant-Under Part 2A, for a relevant risk to exist there needs to be one or more contaminant-pathway-receptor linkages – “contaminant linkage” – by which a relevant receptor might be affected by the contaminants in question. In other words, for a risk to exist there must be contaminants present in, on or under the land in a form and quantity that poses a hazard,and one or more pathways by which they might significantly harm people, the environment,or property; or significantly pollute controlled waters. For the purposes of this Guidance:
(a) A “contaminant” is a substance which is in, on or under the land and which has the potential to cause significant harm to a relevant receptor, or to cause significant pollution of controlled waters.
(b) A “receptor” is something that could be adversely affected by a contaminant, for example, a person, an organism, an ecosystem, property, or controlled waters. The various types of receptors that are relevant under the Part 2A regime are explained in later sections.
(c) A “pathway” is a route by which a receptor is or might be affected by a contaminant.
Now lets put that into context. In the 2014 technical report at page 9, the critical receptor for the residential land use is considered to be a young female child
resident on site from birth to age 6.
So in both reports arsenic, lead, petroleum hydrocarbons, Polycyclic Aromatic Hydrocarbon (PAH) Compounds of which Benz(a)pyerene is one and is mentioned as being present in significant quantities and which is a known carcinogenic, plus Methane & Carbon Dioxide at 15 times and 17 times typical values are all known contaminates are present to such an extent the reports state:
The analysis indicates that a number of PAH compounds are present within the made ground soils at concentrations significantly above the relevant screening values for the residential land use. As with the concentrations of heavy metals, these may pose a significant risk where the soils remain in areas where end users of this part of the site may come into contact with the soils i.e. gardens and soft landscaping areas.
And where will the six year old play? The garden being one of the places. The 2014 report goes onto say:
The following sources of contamination that pose a risk to end users of the residential development have been identified by the assessment of the site:
1) Metal and PAH compound contaminated made ground soils across the site.
2) Elevated concentrations of ground gases beneath the site.
The following pathways are considered to link the identified sources with the proposed end users of the development:
a) – Dermal contact with soil (Indoor & Outdoor).
b) – Direct soil and dust ingestion.
c) – Consumption of home-grown produce, including soils attached to home-grown produce
d) – Inhalation of indoor and outdoor soil dust.
e) – Inhalation of soil gases.
So how will a six year old be affected by swallowing arsenic, lead, benz(a)pyrene, or living in a building where gases at levels; which are significant, be affected by these known harmful substances?
And in the statutory guidance it does state
When the local authority is carrying out detailed inspection of land in accordance with Part 2A, it should seek to give priority to particular areas of land that it considers most likely to pose the greatest risk to human health or the environment.
But the Council have not undertaken a “detailed inspection of the land” at Biggins Wood.
Also with regards to the gases; which are known contaminants, they will affect the atmosphere (the receptor) and this will contribute to global warming (the pathway); which SDC in its own Local Plan – page 334 states
“National planning policy and legislation requires us to work to mitigate climate
change, mainly by reducing our greenhouse gas emissions”
In 2013 on Oct 8th the Planning & Licensing Committee, then known as the Development Control Committee, voted to pass and allow the building on the land at Biggins Wood and there was only one report – the 2010 Report – which the committee did not get to see or read, states clearly that residential end use is not considered to be a viable option on more than seven occasions.
Are SDC putting profit before risk?
We have given the reports to two expert planning specialists, who both deem the land to be significantly contaminated. Also, we passed the reports onto two eminent QC’s who also in their legal opinion state that the land is contaminated and fulfils the requirements of Part 2A of the Environmental Protection Act 1990.
In the light of the Grenfell Tower fire and the risks which the residents had raised on numerous occasions with the Council and other organisations involved in the refurbishment; the residents concerns were ignored. Are the risks of the Biggins Wood Site ones which can be sensibly ignored having due regard to the gravity and feared harm that an explosion, asphyxiation, or arsenic, lead, benz(a)pyrene be swallowed by a six year old or any construction worker on the site?
As SDC no longer have full oversight as they did in the past and that the partial privatisation of the building inspection regime sometimes led to a “race to the bottom” to reduce fees and limit the number of safety inspections carried out. Are these risks which can be sensibly ignored? We personally think not.
We believe that in a race to build more housing in the district SDC are ignoring the significant risks associated with the Biggins Wood Site, and in our humble opinion, we’ll agree with the planning specialists and lawyers we asked to look over the two reports, who all concluded that it looked “suspiciously like putting profit before risk.“
Another question which needs answers is at SDC’s Cabinet held on the 31st May 2017, (agenda item 83 ) the budget estimates to be thrown at Biggins Wood is £131,000 before any tender or work begins on developing the site.
In the budget estimates at point two, it states:
Both issues were addressed in geotechnical reports at the pre-planning feasibility stage, and a brief summary of the existing reports was provided by Idom Meerebrook after our purchase.
The brief summary provided by idom meerebrook to Andy Jarrett (pictured) is dated the 27 March 2015. This information tell us then that SDC must have bought the land prior to March 27th 2015.
However, the land registry says otherwise. It tells us that SDC officially became the Landowners on the 21st Dec 2016.
The facts; which have been wholly provided and produced by SDC, contradict each other.
So when did SDC purchase the site prior to 27th March 2015, or on 21st Dec 2016?
Finally, in Circular Facilities (London) Ltd v Sevenoaks DC  EWHC 865 the court held that knowledge is only required as to presence of the substances and not knowledge about their contaminative nature. SDC were aware of the presence of substances in 2010.
The case in question exposes a particularly harsh aspect of the imposition of retrospective liability for contamination in that the contamination did not arise by way of physical change but by virtue of a change in legislation a number of years after the development.
As mentioned above, the reaction of Sevenoaks District Council to its experience of serving re-mediation notices was not to serve any more. Other local authorities may be similarly reluctant because of resource issues or lack of experience with the regime.
A local authority which is aware – and SDC were aware – that it has contaminated land in its area yet for whatever reason fails to act effectively to avoid harm could however find itself faced with a challenge to its failure to act.
The challenge could come from a third party (eg neighbours) which suffers loss or damage as a result of the failure to act (eg ill health or effect on their property).
So have SDC been wilfully blind by not serving a re-mediation notice on Biggins Wood Homes Ltd, when they were aware that the land was contaminated? We’ll leave you to decide that.
The Shepwayvox Team