Nerves of steel to build here?

Published on Wednesday 20 February 2008 18:32

BARRY LOVE questions the wisdom of building houses on certain parts of the Ravenscraig site and of 'devolving' risk assessments to local councils.

WHEN Ravenscraig shut down in 1992, after 35 years of steelmaking, part of its immediate legacy was massive contamination across much of the 400 hectare site. Some of it was so toxic the safest option was to move it as short a distance as possible. As a result, the nastiest of the contamination was simply scooped up and buried securely in the north-west corner of the site.

There it remains to this day, a large grassed-over mound not far from some of the proposed new housing estates that will be built as part of the redevelopment of the Ravenscraig site. This grassy knoll has been named "Prospect Hill" on the redevelopment master plan, but it's technically known as a "secure containment facility", a repository of more than one million cubic metres of toxic waste, regularly monitored to check nothing is leaking out.

The secure containment facility has been operating for around ten years. As with any piece of engineering, regular maintenance is essential. This is particularly so with what is, in effect, a vast landfill of toxic waste. Every care must be taken to ensure that the clay and plastic liners are not degrading and that it continues to function properly throughout the lifetime of its design.

Only the very worst (or most accessible) of the surface pollutants made it into the secure containment facility, leaving vast quantities of contamination to be dealt with in the normal way as and when the site came to be fully remediated. The serious nature of the residual contamination was reflected in the litany of environmental planning conditions imposed by North Lanarkshire Council, covering everything from water pollution assessments, to an amphibian conservation plan.

But now, as redevelopment gathers pace, fears are raised that the local council, in its haste to see the site transformed as quickly as possible, is ignoring expert advice from its own consultees.

Take the section of the Ravenscraig site identified for the new Motherwell College. The Scottish Environment Protection Agency (SEPA) fear there's still oil in the mine workings under the college site, but the council is not insisting on any further investigations. SEPA says it is concerned and the groundwater under the site could well be significantly polluted.

The council, though, does not share this concern. So much so, it's about to deem the college site's environmental planning conditions as implemented or "purified", which risks giving the impression everything is fine when SEPA says it isn't.

Another issue with new developments is the set of rules saying you shouldn't build houses too close to existing dangerous factories, or places storing hazardous chemicals. If you build too close, it's obvious what the dangers of an industrial accident might be.

Here, the rules require the Health and Safety Executive (HSE) to give planning departments its expert view on the risks. With Ravenscraig, and one of the phases of new housing that's about to start, the HSE advised against the houses being built, saying the risks were simply too great.

The current system – as with SEPA concerns on the environment – allows councils to be swayed by other considerations and not to follow advice from the HSE. To force them to follow that advice would interfere, it's said, with council discretion, subverting local democracy. With Ravenscraig, the council has exercised its discretion to over-rule SEPA and permit development.

This difficult balancing of expert advice with possibly conflicting local political agendas is set to get trickier still following the cost-cutting decision by the HSE to "devolve" its risk assessment function to planning departments. So if someone applies for planning consent for a development in proximity to a major hazard, it won't be the HSE that assesses the risks and perhaps advises against the project: it will be the council planning department, providing itself with its own self-generated risk assessments.

Some people fear council personnel will lack the necessary expertise, and that the former benefits and comfort from an independent assessment will be lost. Certainly, the European legislation on industrial accident hazards does not envisage the risk assessment function being absorbed into the planning department. Developers may therefore find their planning consents challenged if developments get the go-ahead despite being inappropriately close to potential industrial hazards. Yes, councils have wide discretion, but it is not unlimited.

There is also a wider concern for councils and their taxpayers. There have already been some cases in England where the local government ombudsman has found councils guilty of maladministration where development has been given the go-ahead but the remediation via the planning process has been inadequate.

Too often, there is an assumption that a consented development is the same thing as a risk-free development. This is a fallacy. Yet it is a trap many clients, and indeed some lawyers, fall into. The potential for problems is especially great in Scotland, where fewer than 5 per cent of property transactions involve the client obtaining an environmental search (screening the site for possible problems, primarily based on potential contamination from former uses). In England, the corresponding figure is more than 80 per cent, allowing clients to be far better informed about possible pitfalls.

Anyone wanting to buy a house at Ravenscraig will have an inkling about its industrial history, but will they be aware of its industrial legacy? They might want to know there's a hazardous waste landfill virtually on their doorstep, and they might assume everything has been cleaned up to the satisfaction of the environmental regulators.

To assume that if a new development has been passed by the planning department then you can't inherit environmental liabilities is a dangerous assumption and, as ever, developers and future owners need to keep their wits about them in case there are lingering concerns that, for whatever reasons, have simply been dismissed.

&#149 Barry Love is a partner in Semple Fraser LLP's environment and pollution group.