27 March 2012
Mr Graham Loveland
Interim Assistant Director, Planning
3rd Floor, 2 Hillman Street
London E8 1FB
I have been sent the following information by a resident which advises that the planning permission may be at risk concerning the basketball court on Leyton Marsh. I would be interested in your comments on this. Can you please forward this on to Waltham Forest Planning Department?
"Re: Non-Material Amendment application 2012/0359 Leyton Marsh basketball training venue
Dear Ms McKoy,
I have concerns regarding this application, which appears to have been incorrectly accepted as a Non-Material Amendment (NMA) to 2011/1560 under s96A of the TCPA 1990. I assume this was an oversight and you will determine the application as invalid and require resubmission as a full application with appropriate publicity.
The status of the applicant invalidates this application, but in any case the amendment gives rise to material considerations and disadvantage to the interests of myself and other consultees of the original decision. Therefore it must be rejected on the grounds described below.
The situation is particularly worrying in that the application may be perceived as an abuse of process and mechanism for attempting to conceal material considerations from consultees and the Planning Committee.
I'm sure that you want to ensure Waltham Forest Development Management continue to enjoy the confidence of the public by processing and determining applications in full accordance with the law, and with proper discharge of duties under PPS23 as the enforcing authority for works involving contaminated land.
I have not been able to see the details of the application, as they have not been uploaded and made available online. But it is sufficient to note that the description is "Excavation of additional 15cm depth of soil across site to provide stable sub-base" and the applicant is "London 2012".
Please could you supply me as soon as possible with copies of correspondence and documentation submitted in connection with this application, including any comments from WF Environmental Health?
Non-compliance with s96A(4) of the Town and Country Planning Act 1990
An NMA application can only be made "by or on behalf of a person with an interest in the land to which the planning permission relates" (s96A(4) of the TCPA 1990). This does not appear to be the case. "London 2012" as stated applicant is not a legal entity or person and not capable of holding such an interest.
Regardless of the above, assuming "London 2012" is intended to be synonymous with the Olympic Delivery Authority (the clients for the construction works), the applicant does not have the rights of freeholder, holder of lease over 7 years, mortgagee or estate contract holder necessary to qualify as having an interest in the land. Any such rights have been explicitly withheld in the terms of its licence with the owner of the development site.
Furthermore this requirement is made clear in Waltham Forest's own guidance on NMAs: "If you do not have an interest in the part of the land to which the proposed non-material amendment relates, or notification is required under article 9(3) but has not been carried out, you will not be able to proceed with this application." (http://www.walthamforest.gov.uk/help034-england-en.pdf).
I understand that in any case of doubt, LPAs are entitled to request proof of interest in the land from applicants.
The effect of the change results in material considerations resulting from land contamination
Planning Policy Statement 23 states that "any consideration of the quality of land, air or water and potential impacts arising from development, possibly leading to impacts on health, is capable of being a material planning consideration, in so far as it arises or may arise from or may affect any land use".
"In considering proposals for development, LPAs should take account of the risks of and from pollution and land contamination, and how these can be managed or reduced."
Site investigation for potential contamination, and proposals for remediation and management of risk, were excluded from consideration when the initial application was determined. This was despite the known contamination risks of underlying bomb rubble and landfill. This was apparently due to the applicant's claims that there would be no disturbance of potentially contaminated subsoil:
"With the exception of the placement of the temporary development platform as detailed above, there will be no groundworks/construction works within the existing sub-soils associated with the temporary facilities.
The site was used for land fill in the form of blitz rubble between 1940 and 1960. A suitable layer of top soil has been placed on top of this material which it is not the intention to disturb."
These claims were accepted in the planning officer's report to the Committee:
"15cm of topsoil will be removed, the soil will be stored within the site, immediately to the north of the building"
The proposed amendment, which will double the quantity of excavation and disturb the underlying contaminated made ground, introduces a range of additional material impacts relating to the management of contamination and materials with potential immediate and long-lasting effects.
Participants in the original decision were not provided with this information and so deprived of the opportunity to comment or take these material considerations, with risk of impacts on the environment and their health, into account. This further precludes the use of a non-material amendment.
In effect it will become a remediation project involving generation of large volumes of contaminated waste which appears to be already underway, without there being any approved remediation strategy or detailed site investigation, risk assessments or remediation method statements. This will introduce the possibility of cross contamination with topsoil, pollution of the surroundings, and additional difficulties in restoring the site.
According to the Ground Investigation Report 13004GI of January 2012, which only analysed 5 samples of the underlying made ground that this application seeks to excavate, 3 were determined to be hazardous waste. This is clear evidence of the ground contamination material considerations that the proposed change gives rise to.
Furthermore the proposed change will compromise the discharging of condition 1 of 2011/1560, as it will extend and complicate the process of reinstatement of the site within the specified time. It already appears that the condition is incapable of discharge as drafted due to the scale of works and time constraints. As this condition was imposed in response to material considerations, any change that compromises it must itself be considered material."
Councillor- Leabridge Ward
c.c. Councillors Oguzkanli, Buitekant and Nicholson
Meg Hillier MP
Diane Abbott MP
Stella Creasy MP
Claire Weiss, 5 Lea Hall Road, E10 7AR
Save Leyton Marsh Group and other local residents (by e-mail)