What dictates the choice of planning application boundary??
Guidance sought from others on the boundaries used for planning applications and the implications on the risk assessment of that land for the end-user.
Background: Any contaminated site must be shown to be 'suitable for the end-use use taking account of risks from contamination' (paraphrased from paragraph 183 of the NPPF).
'Hypothetical' example: If the planning boundary is not the site boundary but is drawn only around the area of building works, say leaving a third of the site outside the application boundary it is unclear in planning terms, but very clear in risk assessment terms, what area should be assessed. From a risk assessment perspective, that area needs to be considered as part of the risk assessment for the end-use of the site. Can the developer restrict the assessment to only their red line area. This is the 'tail wagging the dog' but is it procedurally correct?? In the hypothetical example during development contamination may have been confirmed across the remaining 2/3 site and the planning boundary used to demarcate the extent of remediation, which was to dig ALL of the ground out, thereby leaving that third of a site as a technical unknown but with a high likelihood of having similar ground conditions. The site is therefore unable to satisfy paragraph 183 of the NPPF as the site has not been shown to be suitable for use by the end-users (whose exposure will be from the site rather than within the planning boundary), and so the enforcement becomes problematic.
Implication: This could mean that Part 2a duties under 1990 Environmental Protection Act will be triggered when the site is brought into use, despite that being less than the minimum quality threshold within the planning regime. a double failure for DLUCH and Defra, and with other costs. It also means the council is assessing the site rather than the developer and is assessing it to decide if there is a 'significant possibility of significant harm' rather to check its 'safe for use'.
This boundary restriction wouldn't apply to impact assessments on other users (e.g., light or noise leaving the site to impact neighbours) but exists for assessments of health impacts on end-users of the site itself.
Question: Does the community have any knowledge or thoughts on what the legal position is, any case law. Common sense suggests the council should adopt the site boundary for planning applications, and/or that the risk assessment should adopt the site boundary, but is there any advice or examples out there to draw from
Cheers
Jeff
