Missing a trick? Is an unnecessarily complex permitting regime for the re-use of materials derived from historical landfill sites stifling their redevelopment?

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Article provided by Danny Hope SiLC, Hydrock; Eric Cooper SiLC, Hydrock; and Liz Hart SiLC, Lithos

Since the initiative to promote brownfield regeneration through redevelopment and the requirement for local planning authorities to maintain a brownfield register, an increasing number of derelict and contaminated sites have been remediated and safely bought back into beneficial use. Available brownfield regeneration opportunities are now beginning to shift to consider historic landfills, where permits have been surrendered, and areas that were infilled prior to waste management controls.

This interest creates a fantastic opportunity to bring these sites back into beneficial use. It provides a much-needed opportunity to improve and enhance the environment whilst at the same time delivering new homes/places and enhanced employment opportunities for the benefit of the communities in which they are located. However, we are experiencing inconsistency as to how these sites are regulated via the implementation of current waste legislation.

There is an increasing insistence that remediation supporting redevelopment of these sites, reusing site won materials, should be managed under a deposit for recovery permit (Defra, 2009. Environmental Permitting Guidance. The Waste Framework Directive) rather than following well established land regeneration guidance. This approach is causing confusion and significant delays. Ultimately if a practical way forward is not identified, there is real concern that these brownfield sites will be blighted and passed over for development in preference for less challenging greenfield sites, due to the disproportionate regulatory burden.

Anthropogenic material found in historic landfill sites is often similar in composition to ‘Made Ground’ identified on many brownfield sites and can be both chemically and physically suitable for retention and reuse within the development.  Unfortunately, the current approach is that if material is deemed to have been formally disposed of i.e., placed in a landfill (as opposed to made ground that may have been deposited across a site), it must be waste irrespective of its composition; even natural soils that have been placed in a landfill would be described as waste.  Reuse of any waste can only be achieved under an environmental permit.  Once something is classed as a waste, it must be assessed in line with WM3 and allocated a hazardous or non-hazardous waste code.

Remediation carried out under a planning permission embodies a ‘suitable for use’ approach based on generic and/or more detailed quantitative risk assessment – an approach adopted by the industry for many years. However, waste codes are allocated based on absolute concentrations, irrespective of site-specific risks. It follows that because thresholds for hazardous waste allocations are relatively low, material that is deemed suitable for use based on the site-specific risk assessment may be allocated a contradictory and barrier-inducing hazardous waste code

Once material is classified as hazardous waste there are further restrictions on how that material can be used;

  • Hazardous and non-hazardous waste codes cannot be mixed;
  • Different hazardous waste codes cannot be mixed; and
  • Treatment of hazardous waste is restricted to 10 tonnes per day.

It is also an inaccurate assumption that hazardous waste can simply be remediated to non-hazardous thresholds; this is often simply not feasible with time, cost and technical constraints.

The treatment of waste deemed hazardous under WM3 is limited to 10 tonnes per day. The current alternative is the application for and implementation of an Installation Permit. In the context of most remediation schemes, this quantity is miniscule and the upshot is that another layer of bureaucracy is introduced, with contractors having to apply for permits that they have no experience of. The industrial Emissions Directive that drives this requirement was surely never meant to regulate land remediation works?

Once in place, environmental permits are detailed on the Environment Agency public register. Permits (whether live or surrendered) will then be identified during land conveyancing, again this is a deterrent to development with property being ‘blighted’ and final sales hindered. The surrender of an environmental permit can also be a lengthy and costly process, again steering developers towards an easier option.

Within a remediation and earthworks project, limiting the options for re-using physically and chemically suitable site-won material potentially increases off-site disposal which again reduces a site’s commercial viability.

The current approach to historic landfills also undermines the government’s ‘Brownfield First’ policy and could lead to local authorities not achieving their house building targets and / or decreasing the provision of employment opportunities regionally and nationally.

Moreover, the issues raised here may also contradict the government’s ‘levelling up’ agenda. Many of the aforementioned types of site are located in the midlands and the north where land values are such that viability can be a major barrier to regeneration, more so than in the south where land values tend to be higher and development opportunities more prevalent.

Restricting the reclamation of site-won material also directly opposes the drive for sustainable development, which is a core principle in the National Planning Policy Framework and even the Environment Agency has a core principle of improving the environment while promoting economic growth. Sustainability is also important in the wider context, we are a small Island, we must ensure we use available resources wisely.

It should be noted that UK industry is at the cutting edge of global remediation innovation, developing products which are exported around the world, a significant contributor to the UK economy. If re-development of brownfield sites becomes less prevalent, this innovation is likely to be stifled and income generated by the export of new technologies overseas will reduce.

Overall, it is unfortunately the case that aspects of the current regulatory regime are creating barriers to sustainable remediation and successful redevelopment of former waste disposal sites rather than facilitating it. No environmental or social benefit is accruing from the position currently being taken and there is no value in it beyond an unimaginative commitment to compliance.

CL:AIRE, with the support of the Environment Agency, has pioneered the sustainable re-use of materials via the Definition of Waste: Development Industry Code of Practice (DoWCoP) which has seen the beneficial re-use of millions of tonnes of earth across England and Wales, when the overarching EU Waste Directive threatened to stifle brownfield regeneration. SiLC and its members have always supported appropriate use of the DoWCoP and would like to ensure its continued and consistent use in line with the guidance and its overarching aim to promote sustainability and protection of human health and the environment.

We hope that a swift resolution can be found to these issues, with a clear and consistent way forward that does not stifle development opportunities, is protective of human health and the environment, encourages industrial entrepreneurship and innovation, but does not contradict government policies and site-specific approach to risk evaluation. Discussions between CL:AIRE, the Environment Agency, government and other experts has commenced and is ongoing. The SiLC PTP will also be adding its support to these discussions.