IS THE WORD “CONTAMINATION” ONE FOR THE COURTS ?


Or is it a matter for the decision-maker ?


Development plan policies refer to ‘contamination’ but do not always define the expression.  This poses an immediate difficulty for those seeking to apply such policies.  Furthermore, it raises the question of whether an authority’s understanding of the expression is a matter of law for the courts or a matter of evaluation within the aegis of the authority’s statutory discretion.  

By way of outright confirmation bias, this essay argues the latter on the basis that the judgment is a polycentric one which is a mixture of science, language and policy and is not suited to the forensic process.

Some development plan policies

The following are examples of this type of policy:

  • Policy EN 2 of the Exeter City local plan provides that, where development is proposed on or near a site where there is contamination or good reason to believe that contamination may exist, the developer should carry out a site assessment to establish the nature and extent of the contamination. 
  • The publication version’ of the Vale of White Horse Local Plan 2031 includes draft development policy 27 which requires that proposals for the development, redevelopment or re-use of land known, or suspected to be contaminated, will be required to submit a “Contaminated Land Preliminary Risk Consultant Report”.
  • Policy DP22 of the Tandridge Local Plan 2014-2029 provides that proposals for development on land that is, or may be contaminated will be permitted provided that there will be no unacceptable risk to health or the environment and provided adequate remedial measures are proposed which would mitigate the effect of any contamination and render the site suitable for use. Where there is evidence of a high risk from residual contamination the applicant will be required to show as part of the application how decontamination will be undertaken.


A hypothetical

The hypothetical I have in mind is where a local plan policy provides that where it is known or suspected that a proposals site is “contaminated”, then the local planning authority will require the applicant to provide a site assessment as part of the application.  A developer is proposing a residential development on a site next door to a former fertiliser factory, but there is no evidence to suggest that any of the materials used in the production process have been transported across the boundary into the application site.  Accordingly, the LPA grants an outline planning permission without a site assessment, but subject to a ‘Grampian’ type condition which places an embargo on the commencement of development unless and until a contaminated land report is submitted and approved and, if needed, a remediation/mitigation strategy is submitted and approved.  Local residents had objected saying that the planning policy was being breached and a site assessment should have been carried out before the grant of the permission and they issue proceedings to quash the permission.  The objectors have to overcome the question of what the word “contamination” means in the context of the policy, because the whole argument begins with it.  If this is a matter of objective textual construction, then it is open to examination by the courts.  However, if it is a matter of evaluation on the merits then, subject to proper process and the ‘Wednesbury principles, this is for the authority only. 

The objective approach

In Tesco Stores Ltd v Dundee CC [2012] UKSC 13, the Supreme Court held that local plan policies should be construed objectively, meaning that the courts reserve to themselves the power to decide on the meaning of such policies as opposed to leaving this as a matter of evaluation for the local planning authorities. The alternative is to hold that a local planning authority which adopts its own (what it would assert to be reasonable) interpretation of its own policy should not be held at fault merely because the policy might be construed differently by a different person.  The problem with such an authority’s asserted subjective approach is that a development plan policy operates in the public domain where developers and other interested persons will rely upon it and might change their positions in response to it.  

It matters not that the authority is the author of the policy because the policy is that which appears on paper and not that which resides, hidden, in the mind of the author.  Lord Reed JSC said: “ . . . , planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”

The evaluative approach

It is important to put Tesco v Dundee into the broader context of administrative law.  There is an established distinction between words which go to interpretation and those which trigger an evaluation on the merits by the relevant body.

In R v Monopolies and Mergers Commission ex p South Yorkshire Transport Limited [1993] 1 WLR 23 (HL) the Commission initiated an investigation (by reference to a statute which allowed them to do so) in connection with any area which was “a substantial part of the United Kingdom”.  In this case being South Yorkshire. The House of Lords declined to intervene when the Commission’s jurisdiction was brought into question. Lord Mustill said:

“‘The courts have repeatedly warned against the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision.’  . .   the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case.  In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow [1956] A.C. 14.  The present is such a case.  Even after eliminating inappropriate senses of ‘substantial’ one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement.  Approaching the matter in this light I am quite satisfied that there is no ground for interference by the court, since the conclusion at which the commission arrived was well within the permissible field of judgment.”

R (A) v Croydon LBC [2009] UKSC 8 is instructive.  There the Supreme Court was concerned with the protection of children under the Children Act 1989.  Baroness Hale distinguished between the approaches to be taken to the words “child” and “child in need” for the purposes of the Act.  She took the evaluative approach to “child in need”:

26.  . . .   The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is “in need” requires a number of different value judgments.  What would be a reasonable standard of health or development for this particular child?  How likely is he to achieve it? What services might bring that standard up to a reasonable level?  What amounts to a significant impairment of health or development?  How likely is that?  What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make.  But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review.  Within the limits of fair process and “Wednesbury reasonableness” there are no clear cut right or wrong answers.

However, she adopted an objective approach to “child”:

27. "But the question whether a person is a “child” is a different kind of question.  There is a right or a wrong answer.  It may be difficult to determine what that answer is.  The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence.  But that is true of many questions of fact which regularly come before the courts.  That does not prevent them from being questions for the courts rather than for other kinds of decision makers."

For the purposes of this essay, the first question therefore appears to turn on whether the meaning of the word “contaminated” is a matter of textual construction (a la Tesco v Dundee) or whether it connotes an evaluative approach (a la the South Yorkshire Case).


 “Contaminated land”

The phrase “contaminated land” is often used without refinement and this can be misleading. 
It could be argued that the word should be given its ordinary meaning.  The  Merriam Webster dictionary defines it as meaning either (a) soiled, stained, corrupted, or infected by contact or association; or (b) made unfit for use by the introduction of unwholesome or undesirable elements.[1] 
This is not particularly apt to assessing the condition of land.

Turning to the use of the word in a technical sense, at its broadest, it can be taken as a reference to a spectrum of site conditions and the question of whether an ascertained level of pollutive substances actually matters in a planning context turns on whether it poses a quantifiable risk to identified sensitive receptors.

In “Introduction to Contamination Control and Cleanroom Technology”,[2] Matt Ramstorp states:

“The term contaminant has a very broad meaning. As a general definition one can state that a contaminant is something either material (in solid, liquid or gaseous form) or physical state, that is considered to be in the wrong place at the wrong time”

In its November 1988 report, NATO's Committee on the Challenges of Modern Society spoke of land which “contains substances that, when present in sufficient quantities or concentrations, are likely to cause harm directly or indirectly to man, to the environment or, on occasions, to other targets”. [3]

In some scientific journals, term ‘contamination’ refers to the presence or potential presence of alien substances on the land but without drawing any conclusions as to whether or not those substances are or could be harmful.  Those alien substances might be described as comprising ‘pollution’ or potential ‘pollution’ when the question of harm arises for assessment. [4] This distinction between ‘contamination’ and ‘pollution’ was observed by the Royal Commission on Environmental Protection in 1984. [5]

Policy documents and technical publications have also provided guidance.

Planning Policy Statement 23: Planning and Pollution Control Annex 2: “Development on Land Affected by Contamination (“PPS23”) provided a working definition:

2.13      To avoid confusion with the statutory term “contaminated land” [6]and its definition and to reflect the different context and scope of planning control, this Annex uses the wider term – “land affected by contamination” [7]. 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, property, human activities or the environment, regardless of whether or not the land meets the statutory definition in Part IIA.  (emphasis added)

The notion of “land affected by contamination” was adopted, almost at the same time, by the Contaminated Land Report 11 “Model Procedures for the Management of Land Contamination” (“CLR11”) [8]; viz:

Understanding land contamination

Land contamination in its broadest sense describes a general spectrum of site and soil conditions.  It can include areas with elevated levels of naturally occurring substances, as well as specific sites that have been occupied by former industrial uses, which may have left a legacy of contamination from operational activities or from waste disposal.  It can also include areas of land in which substances are present as a result of direct or indirect events, such as accidents, spillages, aerial deposition or migration.

In general terms these circumstances can be described as “land affected by contamination.  (emphasis added)

The point about harm was developed in CLR11[9] as follows:

However, for any individual site the land manager or other interested person faces two questions:

Does the contamination matter? and, if so

What needs to be done about it?

As to the vital question, “Does the contamination matter ?” :

In deciding whether contamination matters, the amount, or concentration, of any contaminants present is always going to be a significant factor, but it does not provide the whole answer.  It is also necessary to consider to what extent the substances present may harm human health or the wider environment, including damage to property such as buildings.  In short, what risk, if any, is caused by contaminants, and is that risk unacceptable?  This need to make judgements about the degree of risk also applies to deciding what to do about the contamination. (emphasis added)[10]

Thus this guidance quickly took the exercise into matters of risk management; per CLR11[11]:

The overall approach in dealing with past land contamination is therefore one of risk management – implying “all the processes involved in identifying, assessing and judging risks, taking actions to mitigate or anticipate them, and monitoring and reviewing progress”  (emphasis added)

Current advice in BS 10175 “Investigation of potentially contaminated sites – Code of practice” is as follows:[12]

3.1.3 contamination

presence of a substance or agent, as a result of human activity, in, on or under land, which has the potential to cause harm or to cause pollution

NOTE There is no assumption in this definition that harm results from the presence of the contamination.  (@ p.3)

The BS10175 definition does not predicate harm and it does not seek to pre-empt the assessment of harm (by way of a risk assessment).

The terms of reference for BS10175 are given as:[13]

This British Standard gives recommendations for, and guidance on, the investigation of land potentially affected by contamination and land with naturally elevated concentrations of potentially harmful substances, to determine or manage any risks. (@ p.3)

Taking all of these points together, it is arguable that the expressions “contamination” or “contaminated land” in a policy statement should not be construed to imply any risk of harm.

An alternative might be to assert that the definition of contaminated land in Part IIA of the Environment Act 1990 should, nonetheless, be adopted.  This turns on the finding of significant harm or the significant possibility of significant harm.  If this definition were applied out of context then it would cause a considerable problem for local planning authorities because it would set the bar at a level which excludes most sites from consideration.  If a policy were construed in this way then it would be engaged only where it is known, or there is good reason to believe that the site is polluted to such an extent that it may cause significant harm or raises a significant possibility of significant harm.  Arguably, the local planning authority’s interest in the condition of the site should arise long before such findings can be reported.  It follows that one of the tasks for the local authority is to decide where it places the bar.  The threshold should be not so high that the policy is almost never engaged.  It should not be set at so low a level that the policy is repeatedly triggered in cases where patently it should not have been.

Opting on the side of caution might seem to be attractive to an authority, and demanding that comprehensive site assessments be carried out, might appear to be attractive, but there is, then, the very significant matter of financial viability.  The problem with this approach is that the carrying out of a site assessment can be expensive and may delay the delivery of the proposed development.  A planning system which fails to take account of, and work with, the economic realities of the property sector will act as a brake on development, much of which is in the public interest.

CLR11 [14]alluded to the need to balance costs and benefits:
At several stages of the risk management process, judgements have to be made about the relative costs and benefits of particular courses of action or decisions.  This “cost–benefit analysis” is an inherent part of the management of environmental risks in a sustainable way, and is a formal component of particular stages of regulatory regimes.  It allows for the structured and transparent balance of the costs (usually, but not always, in financial terms) against benefits, which can be wide-ranging depending on the context – for example, enhanced health and environmental protection, increased commercial confidence in the condition of the land or simply greater certainty in ultimate decision making.  The scope and particular criteria for any cost–benefit analysis will depend on the context.  (emphasis added)

Arguably, the expression ‘contamination’ must be quantified in some way, otherwise expense and delay might have to be endured notwithstanding that it is self-evident that the level of contamination is harmless.  Not only this, the local planning authority might have determined that a simple desktop study will cover the point, but objectors might argue that the only way of getting to the right conclusion is by way of intrusive site investigations such as the drilling of boreholes.  Those objecting to the development proposals might be inclined to initiate judicial review proceedings if they feel that the local planning authority is not applying the policy in the ways that the objectors argue it should be applied.  This might be met, by the authority, by the argument that these matters fall within the statutory functions of the authority and are not open to review by the courts.  This argument would turn on saying that the words ‘contaminated land’, in these policies, encompass a range of range of reasonable interpretations and that the evaluation of them is, properly, a matter for the decision-maker.  The counter is that the phrases used in a development plan should be construed objectively so that those reading it can place reliance on it.  The problem here, however, is that not only is there no generally accepted definition of ‘contaminated land’ for these purposes but also that any actions which are triggered by the state of the land must be informed by judgements as to the type and quantum of contamination on a case by case basis. 

Conclusion

If one goes back to the original question, then it turns on whether the word “contaminated” in a development plan policy is a matter for the courts or whether it signals an evaluative process which falls within the local planning authority’s permissible field of judgment.  It is arguable that the complexity of the subject does not lend itself to a binary (‘right or wrong’) answer.  There is no clear-cut answer and this is compounded by the fact that each site will have its own particular characteristics which will impact on the deliberations. For example, the objective of establishing that a site is suitable for its intended use will vary according to the sensitivity of that proposed used.  It is difficult to see how a court could enter the fray without also entering into a debate about the facts of the case and without venturing opinions as to the merits of the various definitions and methodologies, many of which are matters of science.




[4] “Contaminated Land: Assessment and Redevelopment”, R.A. Failey and A.J.Scrivens, Technical Communications (Publishing) Ltd (1994)
[5] 10th report: Tackling Pollution - Experience and Prospects (1984)
[6] That is, the usage in Part IIA of the Environment Act 1990.
[7]     It is no coincidence that the Annex is entitled “Development on Land Affected by Contamination”.
[8]     Environment Agency, September 2004.
[10]    Para.1.1 @ p.6
[11]    Para.1.1 @ p.7
[12]    Page 3.
[13].   Page 3.
[14]    Page 8.

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