CONSTRAINTS

INTRODUCTION

2.1 There are within the District a number of statutory and physical restraints, which can affect the Local Planning Authority's decisions on development proposals. The areas covered by these restraints are indicated on the constraints maps and a brief summary of their effects is set out below.

OBJECTIVES

Flood Risk and Management

2.2 Historically, development has taken place in both river and coastal flood plains . Development in these areas over the years has meant that engineering works have been necessary to protect properties against the risk of flooding. Flood defences aim to minimise damage to people and property in the most severe flood conditions. Engineering solutions will not remove all risk of flooding. Overtopping in surge conditions will still occur and in extreme conditions there remains the possibility of defences being breached.

2.3 Floodplains are a natural part of the water environment and are a valuable aspect of the aquatic system. Engineered flood defences around, and development upon, floodplains interferes with the natural role of floodplains. Functional floodplains are unobstructed or active areas where water regularly flows in times of flood. Functional floodplains therefore act as "safety-valves," storing water that might otherwise flood other areas. As PPG25 advises it is important that there should be no net loss of flood-plain storage, accordingly the Council will seek to prevent development that may interfere with their functionality.

2.4 As the need for further development continues, pressure to build in areas that have been identified as being at risk from flooding will continue. In 2001 the Government published new planning policy guidance on Development and Flood Risk (PPG25). The Guidance requires that priority should be given to allocating sites for development in descending order of flood risk. This emphasises the precautionary approach to be taken by Local Planning Authorities, defined as "taking action now to avoid possible environmental damage when the scientific evidence is inconclusive but the potential damage could be great." The principle of the approach advocated in PPG25 aims to achieve the most sustainable approach in the long term, which is likely to include introducing soft engineering options such as natural flood meadows and coastal re-alignment. This process is explained more fully in paragraph 2.16 .

2.5 Flood risk is a major development constraint in Maldon District particularly in the Coastal Zone. The Environment Agency publishes a Flood Map to identify areas protected from a 1 in 200 year tidal flood event. The Agency also publishes Flood Zone Maps that identify areas at risk from fluvial and tidal flooding, although they do not take into account defences of any kind. The flood risk information on these maps must be taken into account in making planning decisions.

2.6 The District's coastal location and the natural processes that occur, result in large areas being at risk from tidal flooding. The 1 in 200 tidal flood level for Maldon & Heybridge is currently calculated at 4.54m (AOD). For coastal defence schemes, an allowance of 6mm per year of relative sea-level rise is made. For sea defences to be deemed "adequate" for new development proposals they must provide a 1 in 200 standard of flood protection which will be maintained for the lifetime of the development (50 years) taking into account sea level rises through climate change. Burnham-on-Crouch and Mayland are protected to this standard. Maldon and Heybridge are defended to a 1:191 year event. Therefore the land below the 1 in 200 year level in Maldon and Heybridge is judged to be at risk from tidal flooding.

2.7 Fluvial flooding generally presents less risk to life than tidal flooding, but localised flooding has occurred recently after periods of prolonged rainfall. In these situations the Government considers that local planning authorities should give due weight to the need to avoid adding to the risk of flooding, or restricting the ability of an operating authority to construct, operate and maintain flood control works. Fluvial flood protection should provide for a 1 in 100 year flood event and be maintained for the life of the development taking account of the effects of climate change.

Flooding and development

2.8 Flooding from rivers and coastal waters is a natural process that plays an important role in shaping the natural environment. Government policy is to reduce the risks from flooding to people and the developed as well as natural environment. The Government looks to local planning authorities to ensure that flood risk is properly taken into account in planning new development. This is particularly important insofar as climate change is expected to increase the risk of both coastal and river flooding as a result of sea-level rise and more intense rainfall. Some existing development in more exposed locations may not be sustainable in the longer term and may need to be replaced in safer locations.

2.9 Local planning authorities are required to adopt a risk-based approach to proposals for development in or affecting flood-risk areas. This is expressed through the application of a sequential test giving priority to allocating or permitting development sites in descending order to the flood zones set out in Table 1 of PPG25 Development and Flood Risk. The principle behind the sequential test is one of precaution, and that land at risk of flooding should only be developed if "there are no reasonable options available in a lower-risk category, consistent with other sustainable development objectives" including the benefits of regeneration or making use of previously developed land. For ease of reference Table 1 of PPG25 is repeated in appendix 8.

2.10 The Environment Agencys responsible for producing flood risk maps (the Flood Zone Map and the Flood Map) of areas at risk of flooding. These maps are being updated continuously as the agency refines its understanding of climate change and likely flood risk areas. Consequently it is not viable to include a flood risk notation on the proposals Map on a 'once for the lifetime of the plan' basis as it is likely that the flood risk assessment for a particular location may change through time. The Authority acknowledges this is a limitation but advises that for the foreseeable future reference should be made to these flood risk maps directly to ascertain the location of flood risk areas.

2.11 The Planning Authority is also required to properly consider the level of risk posed to the proposed development throughout its lifetime, as well as the effectiveness and environmental impacts of flood mitigation and management measures. Consequentially planning applications for development within areas of flood risk (as shown by the flood risk maps) must be accompanied by flood risk assessments appropriate to the scale and nature of the development. Flood risk assessments are changing with the development of technical information and the Environment Agency's flood risk maps are regularly updated. Accordingly a flood risk assessment may also be required for locations close to the areas at flood risk depending on the elevation and location of the proposed site. Development in areas already protected by existing flood defences will also require flood risk assessment

2.12 The Environment Agency is developing Flood Management Strategy Plans for the Rivers Roach and Crouch and for the Rivers Colne and Blackwater. These Flood Management Strategy Plans will identify the most appropriate and sustainable socio-economic and hydrodynamic means of providing flood management measures throughout the estuaries as a whole, whilst also ensuring that the legal obligations to protect and enhance protected environmental sites and habitats are met. This will involve changes to some flood defence strategies including the incorporation of managed realignment in order to reduce pressures on higher priority defences elsewhere in the estuary.

2.13 Any proposals to modify flood defences, including maintenance, should be considered in the light of these Flood Management Strategy Plans. It should be noted that any such proposals are likely to require planning permission and detailed consideration in accordance with the Habitats Directive.

Reducing the risk of flooding in new developments

2.14 To help reduce the risk of flooding in new developments developers should provide Flood Risk Assessments for sites where water courses are present and design development around existing water courses. Guidance on flood risk assessments is given in PPG25. In addition to where development occurs in flood risk areas, Flood Risk Assessments will be required where development may cause flooding problems through surface water run-off. This may typically occur with large-scale developments (1 hectare plus), or where surface water is discharged directly to watercourse.

2.15 Development should not be within 9m of a main river or flood defence, as identified by the Environment Agency. In addition, development should not involve the culverting or diversion of watercourses (which require the consent of the Agency under the Land Drainage Act 1991) and ditches because of the adverse ecological, flood defence and other effects likely to arise. Culverting will only be permitted if there is no reasonably practicable alternative, or the detrimental effects would be so minor that they would not justify a more costly alternative. If this is the case, adequate mitigation must be provided for the damage caused.

2.16 Where development is permitted which is likely to increase the risk of flooding, the appropriate attenuation or mitigating measures must be provided. These are to be agreed by the Local Planning Authority, in consultation with the Environment Agency, and funded (both construction costs and long term maintenance) by the developer. The developer will need to demonstrate that the necessary consents from other riparian owners to undertake off-site works have been granted before planning permission is granted. The impact of such works on wildlife, landscape, residential and rural amenity will be treated as material considerations in determining any planning permission.

2.17 PPG25 recommends the use of Sustainable Drainage Systems (SuDS) in developments. Advice on best practice is available from the Environment Agency and the Construction Industry Research and Information Association. Combined with water conservation measures (e.g. grey-water systems, installation of water butts and low water use fittings), SuDS can greatly reduce the impact development may have on the environment.

Coastal Defence

2.18 The Coastal Zone is affected by erosion. However, maintaining the existing sea defences may be uneconomic or unsustainable because of the long-term accumulative effects on the environment. Coastal realignment and foreshore recharge are flood defence techniques that complement natural processes and may be permitted in appropriate locations. Such techniques offer a sustainable alternative to hard defences because both can be used to re-establish saltmarsh and recharge can also be used to help protect them. The Essex Shoreline Management Plan (1997) proposes a medium term strategy of "hold the line," (maintain or improve the existing defence). In the longer term, a combination of "hold the line" and "coastal re-alignment" (move the existing defence line landward, in a controlled manner) in selective locations is recommended. The Flood Management Strategy Plans being developed by the Environment Agency, (see paragraphs 2.10b and 2.10c) will be used to set policy and will be based on environmental, technical and hydrodynamic as well as social and economic options. They will provide flood management measures to reduce flood risk whilst ensuring that the legal obligations to protect and enhance designated nature conservation sites are met. The Essex CHaMP (Coastal Habitat Management Plan) takes account of the implementation of the Habitats Directive on dynamic coastlines. These plans along with the second generation Shoreline Management Plan will be material considerations when determining planning applications for coastal realignment. The Council expects that any proposals for coastal re-alignment schemes will be the subject of an early and extensive public consultation process.

Development on Unstable Land

2.19 The effects of ground instability vary in their nature, scale and extent. At their most extreme, they may threaten health and safety, cause damage to buildings and structures. Damage caused by instability may necessitate expensive remedial action, cause the loss of buildings or restrict the use of productive land.

2.20 Under the Town and Country Planning Act 1990 it is not the responsibility of the local authority to investigate the ground conditions of any particular development site but it is empowered to control most forms of development. When reaching decisions on development proposals, the Local Planning Authority will take into account as a material consideration, the stability of the ground in so far as it affects land use or may cause serious damage to adjoining buildings.

2.21 Applicants are strongly advised to consult the Local Planning Authority before submitting a planning application in order to discuss potential stability problems. Applicants will also be advised whether a stability report will be necessary for their proposal. A person professionally qualified in a relevant discipline must make any report or statement that a site is stable. Planning conditions will be applied to any permission granted in the known areas if instability to ensure that any necessary engineering solutions to ensure the safety of the development and its occupants are implemented before the development is occupied.

2.22 The area of instability in Maldon is located between the High Street and the River Blackwater and stretches from Church Street in the east to the Maldon by-pass in the west.

2.22 These areas lie across a known geological slip plane and collectively are an example of a post-glacial abandoned cliff. There has been a history of subsidence on a number of sites in this part of Maldon, and a careful check on further development is considered necessary to prevent any additional erosion of land stability.

2.23 This is based on the best information available to the Authority and is by no means exclusive. It remains the responsibility of the developer to demonstrate that the proposal will not adversely affect the stability of the land in question and show the proposed development will not endanger people or buildings on adjoining land either now or in the future.

Article 4 Directions

2.24 The Local Planning Authority may make a Direction under Article 4 of the Town and Country Planning (General Permitted Development) Order 1995 to restrict 'permitted development'. Where appropriate this power will be sought to resolve identified problems

Leisure Plots

2.25 The Local Planning Authority is able to make Directions under Article 4 of the Town and Country Planning Act (General Permitted Development) Order 1995 to restrict the exercise of "permitted development rights" granted by that Order. Directions will be made in an effort to introduce added control in appropriate cases.

2.26 In the past, large areas of land mainly in the rural and coastal parts of the District have been subdivided and advertised for sale, sold and become used as "leisure plots." Individuals owning or occupying such land have exercised "permitted development rights" to enclose their land with gates and fences, erect sheds and similar structures and to site caravans. Significant harm is likely to be caused to the landscape and local amenity as a result of such development, which would be contrary to a range of planning policies relevant to the areas in question

2.27 In the past, the Local Planning Authority has made Directions, which have been confirmed by the Secretary of State, in relation to the coastal parishes surrounding St Lawrence Bay, and for specific sites at the Smugglers Club Ground, Althorne, and Saltcote Hall Farm in Heybridge. In 2002, Directions have been made and confirmed in relation to "investment plots" advertised for sale at a site off Maldon Road (A414), Woodham Mortimer.

2.28 The effect of the Directions is that planning permission is required for a range of minor operations and temporary uses of land that would otherwise be permitted by the 1995 Order (or its predecessors). Directions seek to exercise control over prospective development. Where the operations or uses have taken place and have exceeded any limitation imposed by the Direction, enforcement action may be taken in the absence of planning permission being obtained. Further details of the Directions in force are available from the District Council.

Maldon Conservation Area

2.29 Article 4 Directions (under Article 4(2) of the Town and Country Planning (General Permitted Development) Order 1995) are in place on the following roads in Maldon Conservation Area:

• Victoria Road (2001)
• Butt Lane (2001)
• Tenterfield Road (1998)
• North Street (1998)
• Church Street (1998)
• The Hythe (1998)

2.30 The Article 4 Direction removes permitted development rights for the replacement of windows and doors in an elevation of any dwelling fronting a highway. In other words, replacement of existing front windows and doors cannot be undertaken unless planning permission is granted. Listed buildings are excluded from Article 4 Directions, as consent is already required for alterations that affect their character.

2.31 The purpose of the Article 4(2) Direction is to:

1. Protect the character of roads and their respective contributions to the Maldon Conservation Area;

2. Prevent the further loss of original features and insensitive alterations to unlisted buildings which contribute towards that character;

3. Promote a high standard of conservation and design quality for replacement features through advice and grant aid.

Bradwell Nuclear Power Station

2.32 To ensure that the Health and Safety Executive's HM Nuclear Installations Inspectorate is aware of development which would result in an increase in people resident, employed or visiting the area, it is consulted on planning applications according to the following guidelines:

• ZONE 1 Any development leading to an increase in residential accommodation, or likely to cause an influx of non-residential population, within a radius of approximately 1 mile (1.6 kilometres) from the site of the reactors.

• ZONE 2 Any development providing residential accommodation, permanent or temporary, for more than 50 people, in the area between approximately 1 mile (1.6 km) and 2 miles (3.2 km) of the reactors.

• ZONE 3 Any development likely to lead to an increase exceeding 500 people in the population in the area, in the area between approximately 2 miles (3.2km) and 5 miles (8 km) radius of the site of the reactors.

Major Industrial Hazards and Pipelines

2.33 Certain sites and pipelines are designated as notifiable installations by virtue of the quantities of hazardous substances present. The siting of such installations will be subject to planning controls, under the Planning (Hazardous Substances) Regulations 1992, aimed at keeping these separated from housing and other land uses with which such installations might be incompatible from the safety viewpoint. In accordance with Department of the Environment, Transport and the Regions Circular (DETR) 04/2000 the Local Authority will consult the Health and Safety Executive, as appropriate, about the siting of any proposed notifiable installations.

2.34 The area covered by this Local Authority contains a number of installations handling notifiable substances, including pipelines. Whilst they are subject to stringent controls under existing health and safety legislation, it is considered prudent to control the kinds of development permitted in the vicinity of these installations. For this reason the Planning Authority has been advised by the Health and Safety Executive of consultation distances for each of these installations. In determining whether or not to grant planning permission for a proposed development within these consultation distances the Planning Authority will consult the Health and Safety Executive and the Environment Agency about the risks to the proposed development from the notifiable installation in accordance with the DETR Circular 04/2000.

Pollution prevention

2.35 The planning aspects of pollution prevention are detailed in PPG23 - Planning and Pollution Control. The planning system has an important role to play in determining the location of development which may give rise to pollution; and in ensuring that other developments, including housing developments, are not affected by major existing or potential sources of pollution. Any air or water quality consideration that relates to land use and its development can be a material planning consideration. However, the perception of risk should not be material to the consideration of a planning application unless the land-use consequences of such perception can be clearly demonstrated.

2.36 The planning system focuses on whether the development is an acceptable use of the land, not the control of the processes or substances. Local Planning Authorities (LPAs) are to assume that the relevant pollution control regime will be properly applied. The planning and pollution control regimes should complement rather than duplicate each other. Planning conditions should not be used to control the pollution aspects of a development that are subject to prior approval by a pollution control authority.

2.37 In addition to planning legislation, there may be other regulatory regimes that will require compliance. Therefore developers are encouraged to hold early discussions with the Council, the relevant pollution control authority and other relevant bodies on the proposed development. The parallel submission of applications under planning & pollution control procedures is also encouraged. Outline planning applications should not be used for developments where the risk of pollution is significant.

Contaminated Land

2.38 Contaminated land is defined under Part IIA of the Environmental Protection Act 1990 as 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:

• Significant harm is being caused or there is a significant possibility of such harm being caused; or
• Pollution of controlled waters is being, or is likely to be caused."

2.39 The definition is such that there has to be an active link between the source, pathway and receptor. If any one of these three elements is missing, the land will not be contaminated under this definition.

2.40 Other land may be potentially contaminated, but does not meet the legal definition in 2.31. This could be because the site is derelict and as such no receptor is at risk. Land subject to Development Plans will be subject to planning conditions to ensure that the site is remediated to a "suitable for use" standard.

2.41 Industrial change and demographic shift during the 20th century resulted in the re-organisation of our towns and cities. Industries moved out of the towns or disappeared altogether, leaving 'brown field' gaps in the urban landscape. Changes in heating methods and the advent of the consumer society have had a significant effect on the type and volume of refuse it has been necessary to landfill. Inevitably, these changes have left behind a legacy of contaminated land, which in some cases may be harmful.

2.42 The District is essentially rural with agriculture, tourism and housing as its main land uses. There is little in the way of heavy industry both now or in the past. Heavy industry in the past was geared around agriculture as the primary industry, for example Sadd's Wharf, Maldon (timber and lime imports), Bentalls, Heybridge and Maldon Ironworks (manufacture of agricultural equipment). Currently pockets of industrial activity can be found across the District on various industrial estates, primarily on previously developed land. In the future, industry is likely to be geared towards low polluting B1 uses. One major site though is Bradwell Nuclear Power Station, which closed in March 2002 and is currently being decommissioned. Other potentially contaminated sites can include petrol stations, old quarries, landfill sites, derelict land, waste processing sites, sewage works, scrap yards and sites where hazardous substances are stored, amongst others.

2.43 There are a few sites that are known to be contaminated and remediation (cleaning-up of the contamination) has taken place at some of these sites. This was primarily reactive. There may be some re-developed sites that have not been remediated to the standards that would be expected today. The Draft Maldon District Contaminated Land Strategy Framework Document and the Environmental Protection Act Part IIA will lead to a pro-active investigation to check sites that are potentially contaminated.

2.44 However, it remains the responsibility of the developer to demonstrate that the land to be developed is either not contaminated, or can be satisfactorily cleaned-up to make it fit for the proposed use. Where a development is proposed on previously developed land applicants are strongly advised to consult the Local Planning Authority before submitting a planning application in order to discuss potential contamination problems. Applicants will also be advised whether a contamination and remediation report will be necessary for their proposal. This should comprise of a detailed site investigation and risk assessment and, where appropriate details of how contamination will be remediated to a standard suitable for the intended use of the site. A person professionally qualified in a relevant discipline must write any such report. Planning permission will not be granted unless there is reasonable confidence that the required remediation can be satisfactorily carried out.

Southend and Stansted Airports

2.45 The Local Planning Authority is required to consult Civil Aviation Authority (CAA) and Southend Airport before granting consent for the development of all buildings, structures and works exceeding 90 metres in height, in the area shown on the constraints maps. Although it is extremely unlikely that this authority would need to deal with such an application, it would be a relevant consideration in the siting of television masts or some overhead power lines for example. CAA and Southend Airport also must be consulted in respect of applications likely to attract birds for example refuse tips, reservoirs, sewage disposal works, nature reserves and bird sanctuaries in particular areas as shown on the constraints maps. Southend Airport must be consulted on wind farms, refuse tips, reservoirs, sewage disposal works and bird sanctuaries proposals in the south of the District. Stansted Airport must be consulted on wind farm development proposals in the north west of the District, as shown on the constraints maps.

Advertisements in the Rural Area

2.46 An Area of Special Control for Advertisements in the rural areas has been confirmed by the Secretary of State, this is dealt with in the Built Environment chapter.

Nature Conservation Designations

2.47 The District Council will consult English Nature on all planning applications on or within 500m (or beyond in some cases) of any nationally or internationally designated nature conservation site. Details of these sites are in the Coast and Countryside chapter.