Introduction

Over 50 delegates from a range of public and private sector organisations attended a workshop hosted by Arup in Manchester to discuss new regulations that require the written agreement of the applicant to the terms of pre-commencement conditions, namely The Town and Country Planning (Pre-commencement Conditions) Regulations 2018. As the majority of contaminated land conditions are pre-commencement, the workshop wanted to consider how the changes will affect the way land contamination is managed through the planning process.

The event was organised by the North-West Brownfield Regeneration Forum (NWBRF) and the Royal Town Planning Institute (RTPI). The audience were welcomed by event Chair Marc Watterson from Arup, who introduced the topic for discussion and the three speakers. The presentations were commenced by Michael Eaglestone, a Major Projects Officer from Wakefield Metropolitan District Council, who discussed the new regulations in regard to the planning process and consenting for major development. Next Rebekah Norbury, an Enforcement Officer at Cheshire East Council, discussed the impact of the new Regulations on the processes and work undertaken by Contaminated Land Officers. Finally, Jan Lourens a Senior Planner from Countryside Properties provided a developer’s perspective on the new Regulations and how it could impact on the delivery of development on brownfield land.

Following the presentations, in smaller groups, the delegates were asked to discuss a series of questions which were intended to create debate around the implementation and impact of the new Regulations.

The feedback from the workshops fell into three main themes:

  1. Will the new regulations result in reduced delays to the planning process?
  2. What information on contaminated land should be provided by applicants, and at what stage in the planning process?
  3. What constitutes ‘commencement’ and how will local authorities monitor compliance with agreed pre-commencement conditions?

Will the new regulations result in reduced delays in the planning process?

The government’s intention in implementing the new regulations is to encourage effective engagement which should reduce delays and uncertainty in the planning process and lead to fewer application refusals and appeals.

Local authority attendees at the workshop highlighted the real-world pressures they are under; time and resource are limited, and there is often no opportunity to communicate with applicants at an early stage in the planning process. A number of attendees raised concerns that the new regulations could create a larger time burden for councils and lead to more delays, rather than fewer.

Concerns were also raised over the 10-working day time limit for applicants to agree to pre-commencement conditions. This could have an impact on resourcing if the applicant disagreed with the detail of the condition and further discussions were needed to find a solution. It was noted that developers and agents should take a pro-active role in drafting conditions to reduce the pressure on local planning authorities and early talks could also be used to find suitable wording for pre-commencement conditions that is acceptable to all parties before the grant of permission. Local authorities could look to charge for this consultation, as the Environment Agency already operates on this basis.

Contaminated Land Officers (CLOs) and the Environment Agency are given three weeks to respond to consultations, but where both parties wanted to attach pre-commencement conditions in relation to contaminated land and there is a drive to reduce the overall number of pre-commencement conditions, concerns were raised that there may be insufficient time for both parties to agree a consistent approach, or a joint condition.

What information on contaminated land should be provided by applicants, and at what stage in the planning process?

CLOs were keen for applicants to provide more information up front with the planning application. Currently, only a desk study report is usually submitted, but providing a ground investigation and remediation strategy would remove the need for pre-commencement conditions altogether. However, this would require a significant shift in how developers operate, as funding for development is usually secured only after planning consent is granted. It was agreed by all that a more consistent approach should be adopted nationally, albeit with site-specific variations, as the level of information provided at planning application varies widely. Many local authorities have useful developer guides online that provide information on the level of information expected and these should be promoted more widely.

It was observed that information can flow both ways during early discussions between applicants and planning authorities. CLOs often have a lot of relevant information that they can share that might not be in the public domain (e.g. available via the planning portals or via a search for environmental data), which can be invaluable to developers in understanding the risks associated with brownfield sites. One group stated that in order to be more proactive, their CLO looks through weekly planning lists to check for sites which would require their input, speeding up the internal consultation process.

How will local authorities monitor progress against agreed pre-commencement conditions?

The Town and Country Planning Act (1990) defines commencement as a ‘material operation’ which includes any work of construction in the course of the erection of a building, including demolition of existing structures. It was noted that there is often difficulty in drawing a line between ‘enabling works’ and commencement, with occasions where developers disguised commencement of development as ‘enabling works’ in order to start before discharging pre-commencement conditions.

Whilst there is a requirement for Building Control to be notified when a development commences, there is no similar requirement to inform planners or CLOs, and therefore the planners are not aware at the appropriate time to check discharge of pre-commencement conditions. Some CLOs reported instances where conveyancing checks on new-build homes being re-sold had identified that planning conditions had not been discharged, with the result that the homes became effectively worthless for re-sale. This was reported as a particular concern in relation to ground gas protection measures.

These issues highlight the importance of intelligently worded and bespoke conditions for brownfield sites and their subsequent enforcement; for example, recognising that the ground investigation often cannot be completed until existing buildings are demolished, or allowing part of a site with no contamination to progress whilst the contaminated section is being remediated. One group highlighted that there is a need for planners and CLOs to collaborate more in regard to the wording of conditions to ensure that they are appropriate, particularly where phasing or demolition is needed.

Conclusions and further actions

Some attendees reported that so far, the new regulations have made a positive difference, with applicants being generally supportive of pre-commencement conditions when consulted. From a local authority perspective, conditions are being thought through in more detail with fewer and better-worded pre-commencement conditions being applied.

However, actions were identified that could be implemented on a national scale, in order to streamline the process:

  • National consistency and guidance would be useful on the wording of contaminated land conditions imposed by the Environment Agency and local authority CLOs;
  • CLOs should be integrated into the pre-application process to ensure contaminated land is considered and that the wording of pre-commencement conditions is appropriate to the proposed development. This would also allow for better information sharing between CLOs and applicants. When consulting the EA as a
    chargeable pre-application consultation developers should also be encouraged to contact the CLO;
  • A requirement to notify the local authority when development has commenced, similar to that used by Building Control, should be implemented to ensure enforcement of pre-commencement conditions;
  • The level of information on contaminated land provided by applicants varies widely and a more consistent approach should be adopted. Many local authorities have produced developer guides, and the use of these should be promoted.