“This interim report summarises the air quality monitoring being undertaken by TRL Ltd around the Launders Lane site in Havering, from18th May 2023 to the end of December 2023. The aim of this project is to understand the potential levels of airborne pollution associated with the uncontrolled burning of materials at Launders Lane, and to get an idea of the ambient levels of airborne pollution without any fires. The pollutants being monitored are Volatile Organic Compounds (VOCS), Poly Aromatic Hydrocarbons (PAHs), Polychlorinated Biphenyls (PCBs) and Heavy Metals (Mercury and Lead). Wind speed and direction are also being recorded. Nothing measured to date indicates that any recommended limits (annual mean thresholds), where they are available, are likely to be exceeded or give any cause for concern. It is recommended that on-site monitoring at the Launders Lane site continues through the summer of 2024 to ensure that air pollution associated with any fires attended by the London Fire Brigade is monitored.”
“7 Interim Conclusions This interim report has been prepared to provide an update on the air quality monitoring that has been undertaken by TRL at the Launders Lane site between August 2023 and December 2023. As of the end of December 2023, the majority of measurements recorded at the TRL Launders Lane air quality monitoring locations are below any available national and WHO annual objectives. Where a few of the monthly readings exceed the national annual mean objective, it is likely that once 12 months of data is available, the average of 12 months data will fall below the objective. It’s important to be aware that currently there is not enough data available to enable meaningful comparisons with national annual mean objectives, as that requires 12 months of data. Consequently, the interim conclusions shared here will be reviewed and updated once 12 month’s worth of data is available and comparisons can be made against the annual mean objectives that exist for many of the pollutants being monitored. The main objective of this monitoring task was to gain an understanding of how the fires influence emissions from the Launders Lane site. Unfortunately, the monitoring equipment only came online in August 2023 so missed recording the majority of fires that occurred last year (2023). For this reason, it is recommended that AQ monitoring is continued throughout the summer of 2024. This is likely to provide further opportunities to measure if and how the fires influence the air quality in the area.”
“It is considered that the overall risk of the site (when not on fire) in relation to a number of the source pathway receptor (SPR) linkages identified could be reduced be securing the site, thereby removing unauthorised access on the site. However, further consideration is required in relation to the SPR linkages associated with the fires on the site, both during fires and of any impacts following fires. In addition, there are areas where a significant risk of significant harm has not currently been identified but that improvements or limited works on site such as reprofiling and installation of capping across the exposed waste materials, resulting in a reduction of infiltration through the site may also serve to offering a reduction in overall risk.”
“On a related note, I’ve been asked to look at the “significant risk of significant harm” factor for declaring Launders Lane as Contaminated Land under Part 2A, and to request your view on it. Having read the report again, I’m of the opinion that it doesn’t meet the threshold, primarily due to the lack of source-pathway-receptor, unless people are trespassing on the site. Therefore the “significant risk” part of the definition is not met. The question over “significant harm” is still to be addressed, as there are some values higher than the guideline values, and I would be grateful if you could advise if this meets the “significant harm” threshold.”
“It is the fires that introduce the higher risk of harm to human health in terms of transport of contaminants and air quality and a determination of whether that is significant in terms of risk to human health would need consultation with the air quality experts who have been doing monitoring on and in the vicinity of the site and the further assessment of risk with respect to airborne release of contaminants and asbestos. I am not sure if any airborne monitoring has been done on site with respect to asbestos since our investigation works on site, or what steps/further works have been undertaken since the last public meetings in terms of air quality. The remediation measures presented in the works we have undertaken are driven by the need to reduce/stop the fires on site, as such this is the key risk driver in terms of determining significance from our perspective.”
“Thanks for the update. Our monitoring to date (which is primarily around the air quality) doesn’t show any particular elevated risk, but then there has not been any fires so far this year so we are currently measuring a baseline. Asbestos monitoring is in the process of being commissioned, and I am hopeful that will be sorted by the end of next month. If I’ve got this fully understood, from the report you provided, the risk of harm is mostly to do with the release of “contaminants” from fires, not the risk of dermal contact (which is significantly minimised if the site is secured from unauthorised access) or from contamination of the watercourse adjacent to the site. I do appreciate that the conceptual model has a high risk from inhalation to the current users if they are on site when a fire is occurring, and also for ground gasses to end users… assuming that the site is redeveloped in some manner. Otherwise, the other risks are very low-moderate, and I am happy that, considering the current use of the land, are not significant. As such, we are minded not to declare the site as Contaminated Land (under Part 2A) as the site is not open land to the public, nor is it easily accessible (unlike a park which is the guidelines you’ve assessed the site under). Therefore, the possibility of people coming into physical contact with the soil is low. Whilst the recommendations within the report indicate that securing the site, capping and venting will further reduce the risk from future fires and prevent unauthorised access, there is currently no evidence to suggest that the fires mobilise the contaminants to neighbouring properties (although this has the caveat that in the current monitoring period there have been no fires of significance since last summer, so the air quality monitoring has not picked up anything untoward). We are, therefore, dealing with the matter under the statutory nuisance/community protection notice regimes, as we are serving an abatement notice on the landowner (for the fires) and a Community Protection Warning to require him to secure the site, and take all reasonable steps to prevent further fires. This will address the recommendations regarding the unauthorised access and also steps to take regarding preventing the fires, though not through the Part 2A regime. Obviously, if further evidence comes to light with regard to the SPOSH and the increase of the risk/possibility of significant harm, we are reserving the right to take action under Part 2A.”
“It is clear that the site is in a contaminated state”
“78A Preliminary … (2) “Contaminated land” is any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that— (a) significant harm is being caused or there is a significant possibility of such harm being caused; or (b) significant pollution of controlled waters is being caused or there is a significant possibility of such pollution being caused; and, in determining whether any land appears to be such land, a local authority shall, subject to subsection (5) below, act in accordance with guidance issued by the Secretary of State in accordance with section 78YA below with respect to the manner in which that determination is to be made.” … (4) “Harm” means harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property. (5) The questions— (a) what harm or pollution of controlled waters is to be regarded as “significant”, (b) whether the possibility of significant harm or of significant pollution of controlled waters being caused is “significant”, shall be determined in accordance with guidance issued for the purpose by the Secretary of State in accordance with section 78YA below.”
“79 Statutory nuisances and inspections therefor. (1) Subject to subsections (1A) to (6A) below], the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say— (a) … (b) smoke emitted from premises so as to be prejudicial to health or a nuisance; … (1A) No matter shall constitute a statutory nuisance to the extent that it consists of, or is caused by, any land being in a contaminated state. (1B) Land is in a “contaminated state” for the purposes of subsection (1A) above if, and only if, it is in such a condition, by reason of substances in, on or under the land, that— (a) harm is being caused or there is a possibility of harm being caused; or (b) pollution of controlled waters is being, or is likely to be, caused; and in this subsection “harm”, “pollution of controlled waters” and “substance” have the same meaning as in Part IIA of this Act.” … “80 Summary proceedings for statutory nuisances. … (2A) Where a local authority is satisfied that a statutory nuisance falling within paragraph (g) of section 79(1) above exists, or is likely to occur or recur, in the area of the authority, the authority shall— (a) serve an abatement notice in respect of the nuisance in accordance with subsections (1) and (2) above; or (b) take such other steps as it thinks appropriate for the purpose of persuading the appropriate person to abate the nuisance or prohibit or restrict its occurrence or recurrence.”
“3.5 “Under Part 2A, risks should be considered only in relation to the current use of the land. For the purposes of this Guidance the “current use means: a) The use which is being made of the land currently b) Reasonable likely future uses of the land that would not require a new or amended grant of planning permission. c) Any temporary use to which the land is put, or is likely to be put, from time to time within the bounds of current planning permission. d) … 3.6 In assessing risks the local authority should disregard any receptors which are not likely to be present given the current use of the land or other land which might be affected.” [paras 3.5(a)(b)(c) and 3.6];…”
“3.8 Under Part 2A, for a relevant risk to exist there needs to be one or more contaminant pathway-receptor linkages – “contaminant linkage” – by which a relevant receptor might be affected by the contaminants in question. In other words, for a risk to exist there must be contaminants present in, on or under the land in a form and quantity that poses a hazard, and one or more pathways by which they might significantly harm people, the environment, or property; or significantly pollute controlled waters. For the purposes of this Guidance: (a) A “contaminant” is a substance which is in, on or under the land and which has the potential to cause significant harm to a relevant receptor, or to cause significant pollution of controlled waters. (b) A “receptor” is something that could be adversely affected by a contaminant, for example a person, an organism, an ecosystem, property, or controlled waters. The various types of receptors that are relevant under the Part 2A regime are explained in later sections. (c) A “pathway” is a route by which a receptor is or might be affected by a contaminant. 3.9 The term “contaminant linkage” means the relationship between a contaminant, a pathway and a receptor. All three elements of a contaminant linkage must exist in relation to particular land before the land can be considered potentially to be contaminated land under Part2A, including evidence of the actual presence of contaminants. The term “significant contaminant linkage”, as used in this Guidance, means a contaminant linkage which gives rise to a level of risk sufficient to justify a piece of land being determined as contaminated land. The term “significant contaminant” means the contaminant which forms part of a significant contaminant linkage.”
“3.12 The process of risk assessment involves understanding the risks presented by land, and the associated uncertainties. In practice, this understanding is usually developed and communicated in the form of a “conceptual model”
“4.3 The paragraphs below set out categories of harm that should be considered to be significant harm to human health. In all cases the harm should be directly attributable to the effects of contaminants in, on or under the land on the body(ies) of the person(s) concerned. 4.4 Conditions for determining that land is contaminated land on the basis that significant harm is being caused would exist where: (a) the local authority has carried out an appropriate, scientific and technical assessment of all the relevant and available evidence; and (b) on the basis of that assessment, the authority is satisfied on the balance of probabilities that significant harm is being caused (i.e. that it is more likely than not that such harm is being caused) by a significant contaminant(s). 4.5 The following health effect should always be considered to constitute significant harm to human health: death; life threatening diseases (e.g. cancers); other diseases likely to have serious impacts on health; serious injury; birth defects; and impairment of reproductive functions. 4.6 Other health effects may be considered by the local authority to constitute significant harm. For example, a wide range of conditions may or may not constitute significant harm (alone or in combination) including: physical injury; gastrointestinal disturbances; respiratory tract effects; cardio-vascular effects; central nervous systems effects; skin ailments; effects on organs such as the liver or kidneys; or a wide range of other health impacts. In deciding whether or not a particular form of harm is significant harm, the local authority should consider the seriousness of the harm in question: including the impact on the health, and quality of life, of any person suffering the harm; and the scale of the harm. The authority should only conclude that harm is significant if it considers that treating the land as contaminated land would be in accordance with the broad objectives of the regime as described in Section 1.”
“there is unlikely to be any single “correct” conclusion on precisely what is the level of risk posed by land, and it is possible that different suitably qualified people could come to different conclusions when presented with the same information. It is for the local authority to use its judgement for form a reasonable view of what it considers the risks to be on the basis of a robust assessment of the available evidence in line with this Guidance.”
“38. In our view, Gillick sets out the test to be applied. It is best encapsulated in the formulation by Lord Scarman at p 182F (reading the word "permits" in the proper way as "sanction" or "positively approve") and by adapting Lord Templeman's words: does the policy in question authorise or approve unlawful conduct by those to whom it is directed? So far as the basis for intervention by a court is concerned, we respectfully consider that Lord Bridge and Lord Templeman were correct in their analysis that it is not a matter of rationality, but rather that the court will intervene when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others. In that sort of case, it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way. In this limited but important sense, public authorities have a general duty not to induce violations of the law by others.” … “41. The test set out in Gillick is straightforward to apply. It calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. If the policy directs them to act in a way which contradicts the law it is unlawful. The courts are well placed to make a comparison of normative statements in the law and in the policy, as objectively construed. The test does not depend on a statistical analysis of the extent to which relevant actors might or might not fail to comply with their legal obligations: see also our judgment in BF (Eritrea).”
“The Environmental Protection Act 1990 is clear that smoke nuisance, caused by combustion, is dealt with through the Statutory Nuisance regime”
“However it should be reiterated here that an impact on air quality is not a defined means of declaring contaminated land, and no models or authoritative or scientific methods have been approved by DEFRA, the EA, or other authoritative body to determine this (para 3.4) [in is witness statement he referred to para 4.32 but Mr Lewis said that was a mistake] of the Contaminated Land Statutory Guidance).”
“The CLEA Guidance can help suitably qualified assessors to estimate the risk that a child or adult may be exposed to a soil concentration on a given site over a long period of exposure that may be a cause for concern to human health. The CLEA Guidance does not cover other types of risk to humans, such as fire, suffocation or explosion, or short-term and acute exposures. Nor does it cover risks to the environment or the pollution of water.”
“For clarity, for the land use model (as defined under CLEA) these pathway [sic] are through the oral route (via direct soil or dust ingestion, or via the consumption of home-grown produce or soil attached to home-grown produce); the dermal route (via direct contact with contaminated soil); or by the inhalation route via dust or vapour, either indoors or outdoors. It does not include a model for the transportation of contaminants by way of combustion.”
“However, further consideration is required in relation to the SPR linkages associated with the fires on the site, both during fires and of any impacts following fires.”
“nothing measured to date indicates that any recommended limits (annual mean thresholds) where they are available, are likely to be exceeded or give any cause for concern”
“11. The measurements taken at the Spring Farm site (LAL1) (starting in May) and the other 7 secondary locations using Tenex tubes (starting in June) demonstrated that the measured levels of pollution were unlikely to constitute an exceedance of any air quality objectives. These measurements will have captured the effect of fires on the site that occurred during this period (summarised in Table 1 of the Interim Report). 12. It is unlikely that the lack of measurements from LAL2 during this period would have prevented the proper recording of the effect of any fires. This is because the recorded wind speed and direction data in Table 6 for the Spring Farm site (LAL1) also show that the average wind direction for June, July and August would have blown across the Launders Lane site (collecting any pollution) and towards the residential areas (i.e. Spring Farm Park, the neighbouring cemetery and local housing) and therefore also towards LAL1.”
“3.4 Risk assessments should be based on information which is: (a) scientifically-based; (b) authoritative; (c) relevant to the assessment of risks arising from the presence of contaminants in soil; and (d) appropriate to inform regulatory decisions in accordance with Part 2A and this Guidance.”