Dear Hyndburn Council: Assessing contaminated land under Part 2A – please read


Assessing contaminated land under Part 2A

Your local authority has a duty to inspect its area to identify whether there is any contaminated land under Part 2A of the Environmental Protection Act. Part 2A deals with contamination caused by past uses of a site, such as former factories, mines, steelworks, refineries and landfills.

Local authorities will identify contaminated land, allocate responsibility for contamination where possible and take action to ensure land is cleaned up, known as remediation.

Your local authority will decide that land is contaminated under Part 2A if a pollutant linkage is causing or could cause significant harm, or pollution of surface waters and groundwater.

A pollutant linkage will only occur when there is all of the following:

a source of contamination, such as heavy fuel oil
receptors, such as people, that could be affected by the contamination
a pathway, such as a river, that could expose a receptor to the contamination

If your local authority believes a site could be classed as radioactive contaminated land, it will assess whether a person has been harmed, or could be harmed, by lasting exposure to certain radioactivity from the land.

If your local authority identifies a contaminated land site it will notify:

the Environment Agency
the owner of the land
any occupiers of the land
any person who appears to be responsible for the clean-up (known as an appropriate person)

See the page in this guide on responsibilities for land contamination.

Amendments to the Contaminated Land (England) Regulations 20062.—(1) The Contaminated Land (England) Regulations 2006(1) are amended as follows.
(2) In regulation 3 (pollution of controlled waters)—
(a)for paragraph (b) substitute—
“(b)controlled waters are being affected by the land and, as a result—
(i)those waters do not meet or are not likely to meet the criterion for classification applying to the relevant description of waters specified in regulations made under section 82 of the Water Resources Act 1991(2) (classification of quality of waters); or
(ii)for controlled waters that are designated as protected areas under Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy(3), those waters do not meet the environmental objectives that apply to them under that Directive (excluding protected areas listed in paragraphs (i), (iv) and (v) of Annex IV to that Directive); or”; and

Part IIA of the Environmental Protection Act 1990 external website (EPA) requires an overall risk-based approach to dealing with contaminated sites, which is consistent with the general good practice approach to managing land contamination. The regulatory regime set out in part IIA is based on the following activities:

identify the problem
assess the risks
determine the appropriate remediation requirements
consider the costs
establish who should pay
implementation and remediationAlthough since the closure of the plant in 2006 the majority of the buildings have
been removed, there remains in place an extensive concrete hardstanding and some
buildings near the site entrance off Nook Lane. The Hazardous Substances Consent
(HSC), which was in force on this site (Application No. PR/03/0007), allowed for the
storage of 50 tonnes of Para chologophenyl isocyanate, 154.6 tonnes of Benzl
chloride, 685 tonnes Benzoisothiazoline and 166 tonnes of Perchloroethylene. Due
to the existence of the HSC, the site was a Notification Site under the Control of
Major Accident Hazards (COMAH) Regulations 1999. The oval shaped Consultation

Paragraph 2.6.
During this time 2000 local residents were advised to stay indoors by the Police. The company
were fined £21,900 and £75,000 in fines and costs.

Zone relating to this Notification extends 800 metres to the north, 493 metres to the
east, 373 metres to the south and 338 metres to the west from the centre of the site.

Figure 3. Plan illustrating the proposed change to the boundary of the Green Belt.

3.9

Notwithstanding the location of the site in the Green Belt, whilst a Hazardous
Substance Consent remains extant, the Health and Safety Executive will continue to
apply the consultation zones, limiting the amount and type of development that could
be undertaken within the area of the zones. In January 2009 the Council presented
a report to its Planning Committee seeking authority to make an order to revoke the
consent.
continued:
3.10

It is likely that the site is contaminated by a variety of chemical substances, however,
the extent or severity of contamination is not known. Redevelopment of the site must
be accompanied by an appropriate remediation scheme that would return the site to
a condition fit for the proposed afteruse.

9

3.11

The site comprises a large previously developed site (illustrated by the photograph in
Figure 4), on the edge of the urban area, but in the Green Belt. Although the
buildings have been removed, the site continues to blight Oswaldtwistle, a situation
that will only be resolved through the comprehensive redevelopment of the area.
There is a narrow strip of land between the former chemicals site and the urban
area. This area has been used for the storage of materials in connection with the
adjoining premises (formerly Joseph Metcalfes) that until recently was used for the
manufacture of soil enhancers, fertilizers and other horticultural products.

3.12

In 2010, a consortium of developers worked with the Council towards the
development of a mixed use scheme for the site and the adjacent mill building. The
scheme was based around the development of a Sustainable Construction Centre
for Accrington and Rossendale College, supported by sustainable housing and
employment development. The Centre would have provided a show-case for the
development of low carbon housing as well as a centre of excellence for the college
in design and construction.
The proposed scheme also provided for the
development of a Country Park on adjacent countryside. The Country Park would
have formed an integral part of the scheme and would have provided a valuable rural
recreational resource to local residents and visitors.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

REPORT TO PLANNING COMMITTEE – 7 January 2009

REPORT BY: CHIEF PLANNING AND TRANSPORTATION OFFICER

PREPARED BY: JEAN WILLIAMS

REVOCATION OF HAZARDOUS SUBSTANCES CONSENT AT THE FORMER CLARIANT
CHEMCIAL WORKS, NOOK LANE, OSWALDTWISTLE

Purpose of Report

To obtain approval from Members for the making of an Order under S14(2) of the Planning
(Hazardous Substances) Act 1990 to revoke the Hazardous Substances Consent (HSC) at
the former Clariant Chemical Works, Nook Lane, Oswaldtwistle, subject to confirmation by the
Secretary of State.

RECOMMENDED that:

Members authorise the revocation of the Hazardous Substances Consent No PR/03/0007, as
set out in Paragraph 3 below subject to confirmation being received from the site owners that
they would make no claim for compensation for the loss of the Hazardous Substances
Consent.

1

Background

1.1
The Hazardous Substances Consent (HSC), which is in force on this site (Application
No. PR/03/0007), allows for the storage of 50 tonnes of Para chologophenyl isocyanate,
154.6 tonnes of Benzl chloride, 685 tonnes Benzoisothiazoline and 166 tonnes of
Perchloroethylene,. Due to the existence of the HSC the site is a Notification Site under the
Control of Major Accident Hazards (COMAH) Regulations 1999. The oval shaped
Consultation Zone relating to this Notification extends 800 metres to the north, 493 metres to
the east, 373 metres to the south and 338 metres to the west from the centre of the site. The
Health and Safety Executive wrote to the Council in June 2007 to advise that the site was no
longer in operation and that Hyndburn Borough Council in its capacity of Hazardous
Substances Authority (HSA) should consider revoking the consent.

1.2
At recent meetings between Senior Officers of the Council and consultants, acting on
behalf of the site owner, proposals for the future use of the site and adjoining land have been
discussed. At present any planning application submitted within the consultation zone is
subject to the COMAH Regulations administered by the Health and Safety Executive and it is
almost certain that the HSE would “Advise Against” any development on the site and likewise
advise against many other developments within the consultation zone. Until the Hazardous
Substance Consent is revoked it will be difficult to deal with the site, whatever is proposed.

2

Revocation of the Hazardous Substances Consent

2.1
The Planning (Hazardous Substances) Act 1990 allows for HSC to be revoked under
s.14. This Authority, as Hazardous Substance Authority, can make a revocation order under
s.14 (1) or (2) of the Act. The revocation will be subject to confirmation by the Secretary of
State under s.15 of the Act (even it is unopposed). S16 (1) of the Act makes it clear that
compensation, which would otherwise be payable for a revocation or modification using
powers under s.14 (1), is not payable for a revocation if it is made under s14 (2) of the Act.

2.2

The grounds under which revocation can be made are set out in s14(2) as being:

a) that there has been a material change in the use of the land to which the HSC relates; or
b) planning permission has been granted and commenced for development of the site and
would involve making a material change in the use of the land; or
c) in the case of a HSC which relates only to one substance, that the substance has not for
at least five years been present on, over or under the land to which the consent relates in a
quantity equal to or exceeding the controlled quantity; or
d) in the case of a HSC which relates to a number of substances, that none of those
substances has for at least five years been so present.

2.3
The site has been cleared of most of the former buildings and associated
paraphernalia with just 5 former buildings remaining. It is my view that there has been a
material change of use of the site from a sui generis to a nil use. The few remaining buildings
left on the site were ancillary buildings to the principle use as a chemical works. As that
primary use has ceased with the removal of the majority of the buildings then the remaining
buildings do not benefit from any use. This opinion has been confirmed by the Head of Legal
and Democratic Services. As a result I consider that an order can be made under s.14(2)(a)
claiming that there has been a material change of use of the land and that the Council will not
be liable for any claim for compensation.

3

Recommendation

3.1

That Hazardous Substances Consent Ref: PR/03/0007 be revoked.

3.2
That the Committee authorise the Head of Legal and Democratic Services to prepare a
Revocation Order under s14 of the Planning (Hazardous Substances) Act 1990 for the
Secretary of State to confirm.

3.3
That the delegated authority be conditional on the agreement of the owner, in writing,
to the revocation including a statement to the effect that they will not suffer loss and do not
intend to claim compensation on the revocation of the consent.

4

Reasons for Recommendations

4.1
The site is no longer used for the production or use of materials stipulated in the
current Hazardous Substances Consent and the continuation of the Hazardous Substances
Consent is no longer relevant.

5

Alternative Options considered and recommended for rejection

5.1
Not to revoke the Hazardous Substances Consent (HSC) Ref: Application No.
PR/03/0007. This course of action has been rejected because the continued existence of the
redundant HSC for the site inhibits the proper consideration of any proposed planning
application by the Health and Safety Executive and local planning authority.

6

Financial implications

6.1
As the site owners are being asked to confirm that intend to raise no objections to the
revocation of the Hazardous Substances Consent, no compensation will be payable by the
Council.

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