NICOLA PEARCE

Director of Environment and Regeneration 

On 15 May 2020 we supplied evidence to the Head of Legal Services and Monitoring Officer Craig Griffiths that the Planning Development Manager Steve Ball had written his own complaints resolution letter. We checked the meta data (hidden document information) on the letter received on the letter head of the Head of Planning and Public Protection Ceri Morris. The meta data showed that the letter's author was Steve Ball. (CLICK HERE FOR THIS LETTER). Craig Griffiths passed the letter on to Nicola Pearce who responded with an extensive communication. 

CLICK HERE FOR THE ORIGINAL DOCUMENT AS A .pdf

CLICK HERE FOR THE DOCUMENT AS TEXT ON A WEB PAGE

Before we deal with the content of the email, it should be noted that Nicola Pearce is a former member of the planning department who has worked on this planning application in the past. It is very likely that she and Steve Ball worked together and so the question should be asked. Is Nicola Pearce the right person to undertake and investigation into the actions of the planning department?

As stated previously the letter is an extensive one and so initially we will only deal with the Ceri Morris / Steve Ball complaint and the 2008 contamination report. 

The following passage relates to the 2008 contamination report provided to the planning department by the Cuddy Group.

The Council takes it responsibilities in respect of ground contamination with the utmost seriousness.

A site is considered contaminated land if (by way of a pollutant linkage) it poses a risk of significant harm to human health or the environment or significant possibility of that harm. The Geo-Technical and Geo-Environmental Report to which you refer, which supported planning application P2008/1462, did find low levels of contamination. 

I appreciate that you disagree with the interpretation the Council has adopted here, and provided a different analysis undertaken, however the Council considered the report at the time of that planning application. 

It is important to note that Section 1.5 of the Contaminated Land Statutory Guidance stipulates:
“Enforcing authorities should seek to use Part 2A only where no appropriate alternative solution exists. The Part 2A regime is one of several ways in which land contamination can be addressed. For example, land contamination can be addressed when land is developed (or redeveloped) under the planning system, during the building control process, or where action is taken independently by landowners. Other legislative regimes may also provide a means of dealing with land contamination issues, such as building regulations; the regimes for waste, water, and environmental permitting; and the Environmental Damage (Prevention and Remediation) Regulations 2009.”

As previously advised to you the Environmental Protection Act 1990 obligations no longer apply when a site is going through the planning process; therefore the Council has not at any point contravened its duties under this legislation, as it is not relevant once the planning process has commenced. Nevertheless, the Council is required to address land contamination (in line with the
aforementioned guidance) to ensure sites are safe and suitable for use after development has been completed.

All concerns are routinely addressed throughout the process in consultation with the Council’s specialist officers on land contamination matters, as well as in responses from Natural Resources Wales (NRW). Where deemed appropriate by officers of the Planning and Public Protection  service, recommendations as to potential conditions will be incorporated in any papers that go before Planning Committee Members. Such conditions, dependent upon the advice of specialists, may require risk assessments to be undertaken on site in addition to the completion of land remediation on site to ensure that the land is suitable for residential purposes thus protecting the health and safety of both existing and proposed residents.

*******

The Council takes it responsibilities in respect of ground contamination with the utmost seriousness. 

A site is considered contaminated land if (by way of a pollutant linkage) it poses a risk of significant harm to human health or the environment or significant possibility of that harm. // The Geo-Technical and Geo-Environmental Report to which you refer, which supported planning application P2008/1462, did find low levels of contamination. 

This paragraph is comprised of two statements, (see //) both statements are true but statement two is deliberate deception hiding the truth because although the report "did find low levels of contamination", it also found higher levels of contamination that exceeded safety guidelines and which identified the land as contaminated by at least 'a significant possibility of harm' by way of a pollutant linkage. 

I appreciate that you disagree with the interpretation the Council has adopted here, and provided a different analysis undertaken, however the Council considered the report at the time of that planning application. There is no evidence of the council considering the report however there is evidence of the council allowing Cuddy to withdraw the contamination report and submit a new Geo-Technical report without chemical testing. The 2008 Geo-technical report recommended remediation of the land which clearly identified the land as contaminated.   

It is important to note that Section 1.5 of the Contaminated Land Statutory Guidance stipulates:
“Enforcing authorities should seek to use Part 2A only where no appropriate alternative solution exists. The Part 2A regime is one of several ways in which land contamination can be addressed. For example, land contamination can be addressed when land is developed (or redeveloped) under the planning system, during the building control process, or where action is taken independently by landowners. Other legislative regimes may also provide a means of dealing with land contamination issues, such as building regulations; the regimes for waste, water, and environmental permitting; and the Environmental Damage (Prevention and Remediation) Regulations 2009.” The Director has referenced Welsh Government legislation here and included irrelevant and general information in attempt to avoid accountability. If we look at what the NPTC Contaminated Land Strategy guidelines relevant in 2008 we will see that the planning department have a responsibility towards the Environmental Protection Act 1990 during the planning process.

"Part IIA of the Environment Protection Act 1990, was introduced in Wales on July 1st 2001, until this time there had been no strategic approach to the identification of contaminated land. Land contamination had always been addressed during redevelopment or when the risk has manifested itself. Since 2001, all local authorities have a duty to inspect their areas, locate and ensure the remediation of all statutory designated contaminated land. One of the key objectives of the council's strategy (Key Objective 4:) is to ensure that during the redevelopment of new sites, land contamination issues are dealt with effectively and at an early stage of the planning process." 

As previously advised to you the Environmental Protection Act 1990 obligations no longer apply when a site is going through the planning process; therefore the Council has not at any point contravened its duties under this legislation, as it is not relevant once the planning process has commenced. // Nevertheless, the Council is required to address land contamination (in line with the
aforementioned guidance) to ensure sites are safe and suitable for use after development has been completed.

I refer again to the NPTC Contaminated Land Strategy

"Part IIA of the Environment Protection Act 1990, was introduced in Wales on July 1st 2001, until this time there had been no strategic approach to the identification of contaminated land. Land contamination had always been addressed during redevelopment or when the risk has manifested itself. Since 2001, all local authorities have a duty to inspect their areas, locate and ensure the remediation of all statutory designated contaminated land. One of the key objectives of the council's strategy (Key Objective 4:) is to ensure that during the redevelopment of new sites, land contamination issues are dealt with effectively and at an early stage of the planning process." 

All concerns are routinely addressed throughout the process in consultation with the Council’s specialist officers on land contamination matters, as well as in responses from Natural Resources Wales (NRW). Where deemed appropriate by officers of the Planning and Public Protection  service, recommendations as to potential conditions will be incorporated in any papers that go before Planning Committee Members. Such conditions, dependent upon the advice of specialists, may require risk assessments to be undertaken on site in addition to the completion of land remediation on site to ensure that the land is suitable for residential purposes thus protecting the health and safety of both existing and proposed residents. This is true but there is no evidence of it happening when the land was found contaminated in 2008

*******

"A site is considered contaminated land if (by way of a pollutant linkage) it poses a risk of significant harm to human health or the environment or significant possibility of that harm. The Geo-Technical and Geo-Environmental Report to which you refer, which supported planning application P2008/1462, did find low levels of contamination." 

I appreciate that you disagree with the interpretation the Council has adopted here, and provided a different analysis undertaken, however the Council considered the report at the time of that planning
application. 

Provide Evidence low levels once construction workers were wearing protective gear.

The human health risks table suggest underneath that dust supression measures should be used. Quote Lynette Nedza dust info 

ask her to provide documentary evidence

Further to your correspond dated we have undertaken an analysis of the correspondence and found that there is serious cause for concern about the integrity of the following passage in your correspondence. 

Based upon the information provided by the planning department and the information readily available on the NPTC website we reached the conclusion that in the act of writing this passage you have contravened the purpose and values of the NPTC and also the staff code of conduct. As such the act of writing this passage is clearly and act of misconduct. If you wish to dispute this allegation then you should provide us with the following documentary evidence:

1. you state that: "however the Council considered the report at the time of that planning
application."

Please provide documentary evidence that shows the council considered the contamination report at the time of the planning application.

you state that the report " did find low levels of contamination."

Please provide documentary evidence of how the planning department determined that the levels of contamination were too low for remediation contrary to the report's recommendation that the land should be remediated. 

The NPTC Contaminated Land Strategy 2005 states that:

"Part IIA of the Environment Protection Act 1990, was introduced in Wales on July 1st 2001, until this time there had been no strategic approach to the identification of contaminated land. Land contamination had always been addressed during redevelopment or when the risk has manifested itself. Since 2001, all local authorities have a duty to inspect their areas, locate and ensure the remediation of all statutory designated contaminated land. One of the key objectives of the council's strategy (Key Objective 4:) is to ensure that during the redevelopment of new sites, land contamination issues are dealt with effectively and at an early stage of the planning process."

"When considering development proposals, the planning authorities role is to ensure that all material planning considerations, which can include the actual or possible presence of contamination are satisfactorily addressed. When considering an application, where contaminated land is invloved (document spelling mistake not ours) the planning authority will identify specific measures to be undertaken prior to redevelopment, these requirements will be imposed by a set of conditions attached to the planning permission. The main objective of the conditions is to ensure suitable investigation work is carried out and that the land is remediated to a standard that is suitable for the proposed end use." 

Page 36 of this document which covers the planning process states that sites that may be contaminated should be identified at the earliest stage of the planning process and then throughout the development stage and that there should be "close liaison between the Contaminated Land Officer and the planning officer". 

It has been noted that you have in the past worked and a member of the planning team and that you are familiar with this development. As such you should be able to provide documentary evidence of a  "close liaison between the Contaminated Land Officer and the planning officer". 

Failure to provide documentary evidence by will be seen as an admission of guilt and the allegation of misconduct will be published to our website. If you require more time to complete the provision of evidence please contact us. 

We will publish information

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