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Eastern Counties Leather Revisited

Meyric Lewis

The appeal has just been heard relating to a redevelopment proposal at Pampisford Industrial Estate on a part of the historically contaminated site formerly owned by Eastern Counties Leather, the defendants in the nuisance proceedings brought by Cambridge Water which went all the way to the House of Lords in the 1990s, Cambridge Water Ltd v. Eastern Counties Leather plc [1994] 2 AC 264.

Having consulted with the Environment Agency, South Cambridgeshire District Council refused planning permission on the ground that

“There is known historic pollution in the groundwater beneath the site. Insufficient information has been submitted with the application to assess the risk of the development to existing groundwater/contamination monitoring at the site and the associated risk of contamination to groundwater [contrary to development plan policy and the NPPF]...”

The appellants appealed on the basis that, in terms of NPPF policy, the proposed redevelopment was “appropriate for its location” and there was no evidence to suggest that the site was not “suitable for its intended new use” or that its development would cause pollution or otherwise represent any risk to human health. They maintained that there was no current or historical association with the tannery activities on the Eastern Counties Leather land on which polluting activities were carried out. In any event, no deep intrusive ground works were proposed as part of the development.

Nevertheless, because of the historic pollution associated with the land to the south of the appeal site, the appeal site was included in a number of studies investigating levels of pollution in the area as a whole.

These studies concluded that the only measures required to be carried out in the context of making the appeal site suitable for its intended use were the incorporation of gas protection measures within the proposed buildings and the removal of a disused underground storage tank and any associated contaminated soil. These could be covered by conditions in the usual way.

No inherently polluting or contaminating operations were proposed in the development and no deep intrusive ground works (beyond excavating the disused storage tank) were proposed as part of it.

No other potential risks to human health or to the environment had been identified by the appellant’s consultants, the Council or the Environment Agency as arising as a result of the carrying out of the proposed development.

In the context of the NPPF as referred to in the reason for refusal, the appellant’s consultants submitted that the proposed development was “appropriate for its location” and “the site [was] suitable for its new use taking account of ground conditions”, see paras. 178 and 180.

The Council’s refusal of planning permission was apparently influenced by representations from the Environment Agency to the effect that, as set out in their consultation response on the appeal proposals,

“there is known groundwater pollution in the vicinity of the site and we consider there is a strong possibility of a groundwater source being present beneath the site. The known pollution includes a chlorinated solvent plume that extends over 2km to the northwest within the Cam and Ely Ouse Chalk groundwater body and that impacts local springs and the Sawston South Stream. The potential presence of chlorinated solvents in shallow or deep groundwater beneath the site has not been investigated or assessed in previous EPS reports and it has not been demonstrated that the risk to controlled waters is acceptable.

We consider that for a site to be suitable for use any potentially unacceptable risks to controlled waters must be adequately addressed… we consider a planning application is an appropriate time to deal with the historic contamination and mitigate the risks”.

The Environment Agency were therefore expressly taking the stance that “for a site to be [made] suitable for use” the appellant was responsible for carrying out yet further survey work beyond what had already been undertaken and to carry out works of remediation “to deal with the historic contamination and mitigate the risks”.

The appellant submitted that the Environment Agency’s stance, and the Council’s decision which was influenced by it, was not based on any evidence and was not justified in any event having regard to any policy or principle relating to the development or use of land whether in the NPPF or the development plan.

They submitted that, even if (which was denied in the absence of any evidence to that effect) there were any “groundwater pollution” beneath the appeal site, that would apparently form part of “a chlorinated solvent plume that extends over 2km” related to the historic land contamination of the Easter Counties Leather site. It followed that no “risk to controlled waters” attributable either to the condition of, or to the proposed development on, the appeal site could ever be identified. In any event, there was no reasonable or proportionate basis on which the appellant could be held responsible for any such perceived risk.

The Environment Agency’s letter also quoted para. 170 of the NPPF to the effect that “The planning system should contribute to and enhance the natural and local environment by... remediating and mitigating despoiled, degraded, derelict, contaminated and unstable land, where appropriate”.

But the appeal site had not been identified as “contaminated land” and, in any event, the appellant submitted, remediating its condition was not “appropriate” in the circumstances.

The letter further quoted the NPPG para. ID: 33-001-20140306 to the effect that “Failing to deal adequately with contamination could… undermine compliance with European Directives such as the Water Framework Directive”. But, again, the appeal site had not been identified as contaminated and there was no evidence or suggestion that its condition or the proposed development might lead to non-compliance with the Water Framework Directive.

The Environment Agency also quoted para. 179 of the NPPF stating that “Where a site is affected by contamination or land stability issues, responsibility for securing a safe development rests with the developer and/or landowner”.

Again, however, the appellant submitted that the appeal site had not been identified as contaminated and, in any event, implementation of the appeal proposals would not result in “unsafe development” on account of any asserted contamination.

The letter finally quoted an Environment Agency position statement to the effect that “The Environment Agency may recommend the refusal of a planning application where it judges that the risk of groundwater pollution is too high or has been inadequately assessed”.

But there was again no evidence (or even grounds for inferring) that the development which was the subject of the appeal could generate any “risk of groundwater pollution”.

In the event, the Council offered no evidence in the appeal in support of the reason for refusal following the agreement of conditions to secure the measures referred to above and the standard condition for situations where contamination is encountered in the course of development. No resistance was offered to the appellant’s claim for costs.

Meyric Lewis represented the appellants, Sawston Joinery Limited, instructed by Bob McGeady of Ashtons legal and ably assisted by the appellant's environmental consultants, Environmental Protection Strategies Ltd.