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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