Contaminated land and planning conditions

Developers are used to having to provide site surveys of Brownfield sites or expecting planning conditions to deal with clean up of a particular site.

The recent case of Technoprint v Leeds City Council has demonstrated that just expecting clean up to be covered by planning conditions alone ( without the preliminary provision of soil and other report ) is insufficient. The council has to have this homework handed in before the decision can be made.

Technoprint were neighbours to land upon which a developer sought and obtained planning permission for a block of 12 flats. Because of potential contamination and the sensitivity of clean up Technoprint had objected to the application on the basis that the land should remain for business. Despite a recommendation from a technical officer that at least a desk study report was required the planning officers had not sought site report or a remediation plan. As the deadline for determining the application fast approached the council decided to grant consent but made it subject to six conditions relating to land contamination.

Technoprint challenged the decision on the ground that it was unreasonable or irrational for such an important matter to be dealt with by after the event conditions. The council had to have all the information before it made its decision to proceed. Accordingly the decision was quashed and sent back to the council for review once all the reports were to hand.

Although this case may be confined to its own facts it is important for developers to realise that in sensitive applications up front work is always going to be necessary if you want to minimise the risk of judicial challenge. Also don't forget that if you enter into a contract conditional upon a satisfactory planning consent being obtained, always consider a provision enabling you to delay making the contract unconditional until the three month period for a challenge by way of judicial review has passed.

Such a clause will prevent you being tripped up by what, at first seem quite reasonable planning conditions but which behind the scenes have been imposed after an inadequate review and decision making process.

For further information contact Andrew Gough on 01227 763939.

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