Planning Services and land contamination

Where land contamination is known or suspected, planning conditions are usually attached to the planning approval (permission) requiring risk assessment and/or ground gas risk assessment.

Applicants making a planning application may be required to submit a preliminary land contamination risk assessment with planning applications for all major development and for smaller scale sensitive development where contamination is known or suspected to be present.

If you are aware of a potentially contaminative land use on, or formerly on, your planning site, you should always tick the required box(es) in the 'existing use' section of your application.

Planning conditions have been utilised by Dudley Council to ensure developments are protected from land contamination and ground gas risks since the 1990s.

For developments since this time, Dudley Council may hold records of planning approvals where land contamination and/or ground gas risk were required to be assessed and if remediation was undertaken.

Information about the planning history of a site and whether the requirements of planning conditions have been met is available from Planning Services.

To meet the requirements of Dudley Council’s land contamination planning conditions, the government guidance ‘Land Contamination Risk Management’ (LCRM) should be followed.

When information is submitted in support of an application to discharge of land contamination planning conditions, the following will be required:

• Reports are written and/or peer reviewed by a competent person.
• Reports are a signed and dated final version.
• A staged risk-based approach should be followed including:
• Stage 1 Preliminary Risk Assessment and, where required, a Generic Quantitative Risk Assessment and/or a Detailed Quantitative Risk Assessment.
• Stage 2 Remediation options appraisal. Remediation proposals will be considered in relation to sustainability and climate change in line with LCRM.
• Stage 3 Remediation and verification.

• Remediation should be overseen by a competent person.
• The unjustified proposal of a cover system is not accepted as a substitute for adequate site investigation and risk assessment.

• Where a cover system is the chosen remediation solution following a stage 2 remediation options appraisal, Dudley Council’s established cover system thickness is 600mm for rear gardens and 300mm for front gardens and landscaped areas.
• Enhanced cover systems may be required in certain circumstances such as if asbestos or volatile organic compounds are present.
• Root Protection Areas of Tree Protection Orders should be considered and protected.
• Synthetic turf is not an accepted remediation cover system option.
• Sustainability and climate change should be considered in line with LCRM.

• Verification proposals should be submitted with remediation proposals including indicative plan of locations.
• Laboratory analysis for appropriate contaminants will be required at source at the following ratios:
• contamination testing brownfield/contamination known or suspected 1 sample per 100m³
• Greenfield/contamination not known or suspected: 1 sample per 250m³
• Remediated/hub/manufactured: 1 sample per 100m³

• In situ verification of cover systems will also be required: 1 verification sample every 4 plots and/or 1 sample per 100m² Public Open Space/landscaping evenly distributed across the development to include: laboratory analysis for relevant contaminants of in situ (as laid) cover system, thickness verification via hand dug pit (the use of a pipe to verify thickness is not accepted) to include photographs showing details of date and location for each sample.

This information is provided for general guidance and indicative purposes only and requirements may vary and will be assessed on a site-specific basis.

When information is submitted in support of an application to discharge of ground gas and vapours planning conditions, the following staged risk-based approach will be required:

Stage 1 Ground Gas and Vapour Preliminary Risk Assessment:

• In accordance with BS8485 & CIRIA guidance, a minimum of 6 monitoring visits (subject to end use and interim results) is required across conditions to allow a worst case to be derived.
• Sufficient time between monitoring visits to allow for changes in ambient conditions that influence gas generation and migration is required.
• The precautionary unjustified upgrade in Characteristic Situation is not accepted as a substitute for the required gas monitoring and/or due to isolated and/or slightly elevated total concentrations. Current research* now recognises the significance of flow rather than total concentrations. The Local Planning Authority may reject proposals based on over-precautionary default protection and/or further monitoring and risk assessment may be required.

*.  Technical Paper: ‘Risk and reliability in gas protection design – 20 years on: Part 1’. Geoff Card, James Lucas (EPG) and Steve Wilson. 05 August 2019.        

Stage 2 Formulation of a remediation strategy and proposed verification plan:

• Full specific details of protection to be used should be included. Generic options appraisals derived from BS8485 scoring are not accepted.
• Full details of the membrane specification and methods of installation should be included as part of the strategy.
• The proposed verification plan should be submitted with the remediation strategy and, in accordance with CIRIA C735, be specific, detailing the frequency of testing / inspection and what data will be collected and presented within the verification document. In line with CIRIA C735 and related to risk, amongst others the following should be considered for inclusion: sufficiently high-resolution photographs, signed inspection records, results of testing, details and evidence of service penetration protection,  records of remedial actions.
• Remediation proposals will be considered in relation to sustainability and climate change in line with LCRM.

Stage 3 Remediation and verification:

• Verification should be undertaken in accordance with CIRIA C735, with accompanying interpretation, discussion and explanation and presented under one cover.
• Uncollated verification without accompanying reporting is not accepted.
• A clear unambiguous statement is required indicating compliance and that the protection measures are suitable for the intended use.
• All reports are to be finalised, dated and signed by a competent person.

This information is provided for general guidance and indicative purposes only and requirements may vary and will be assessed on a site-specific basis.

Pre-application advice should be sought from Dudley Council Planning Services before the submission of a planning application to gain an informal view as to whether a proposal may or may not be acceptable in planning terms. Benefits of pre-application advice include: Aids in encouraging and adding value to the quality of the development that is proposed; Often speeds up the process of a planning application; Identifies schemes that may not receive a favourable decision; Identifies a case officer who will usually deal with both the pre-application advice and formal planning application; Ensures internal consultees are consulted where necessary and engaged from the outset of the process.

Please visit Pre-application advice webpage for more information.

• Pre- discharge of condition advice (land contamination/ ground gases & vapours) - £72.50

• Definition of Waste: Code of Practice Materials management Plan (DoW:CoP MMP) Confirmation - £36.25

• Enhanced Environmental Information Regulation (EEIR) requests - £36.25

Land contamination is a 'material planning consideration' for sites known or suspected to be contaminated. A material planning consideration is a matter that should be taken into account in deciding a planning application or an appeal against a planning decision. This means the Local Planning Authority (LPA) should consider the potential implications of land contamination when considering applications for planning permission, and in the Local Plan, Spatial Strategy and associated policies.

For recent developments, land contamination risk should be considered and managed as part of the planning and development process. Where contaminated land and/or ground gas risk is present, planning conditions may also require remediation to be carried out and a verification report submitted.

A verification report provides a complete record of all remediation activities on site and demonstrates compliance with agreed remediation objectives and criteria. Usually, land contamination and/or ground gas conditions should be discharged before development commences or before first occupation.

Details of land contamination planning conditions are in the Planning Application Decision Notice.

Planning and Building Regulations are separate regimes and consequently, you may need to submit the same information separately to both Planning Services and your Building Inspector.