The EU directive on soil protection could radically overhaul UK construction methods. Ross MacMillan unearths the controversy behind Europe's latest intervention.

MAJOR contractors and environmental organisations are raising concern over the proposed introduction of the first EU directive on soil protection that would radically overhaul construction methods.

The proposed framework had its first reading adopted by the European Parliament on 14 November, and if fully adopted, would disrupt the way that future roads, houses and urban developments will be built.

The EU Soil Framework Directive is part of the wider EU Soil Thematic Strategy, which seeks to improve the protection of soils and its sustainable use.

Among the key points of the directive is the setting up of public inventories of contaminated sites in the EU and the need for Member States to draw up alternative remediation strategies that will protect and preserve the soil.

Chris Papanicolaou, who practices in environmental and general commercial property law for legal firm Jones Day, says the directive would directly impinge on domestic planning policy and have repercussions for new developments.

He says that if the directive is adopted it would force the Department for Environment, Food and Rural Affairs (Defra) to revise its planning laws.

Soil sealing
Under the proposed framework, Member States will have to take measures to limit soil sealing and minimise its effects. “As sealing is an irreversible process, Member States shall develop codes of good practice on sealing,” says the report.

Papanicolaou believes that soil sealing poses the greatest threat to construction.

“The implication would be that contractors are going to have to come up with alternative techniques to allow or mitigate the effects of soil sealing,” he says. “It may mean different types of foundations, different types of hardcover, different types of landscaping. It’s an architect’s challenge as well as a contractor’s.”

The consultation paper issued by Defra closed on 19 October, after a number of major contractors were canvassed for their opinions on the framework.

Balfour Beatty, Laing O’Rourke and Galliford Try are among the list of consultees, each with major divisions in urban development and the construction of transport infrastructure, which are the main causes of almost irreversible net soil loss.

“If the directive is adopted, then policies will have to be adopted which are consistent with that overarching requirement, which may mean that different construction methods might have to be used,” says Papanicolaou.

Currently, soil sealing is the consequence of most construction activity, restricting the ability of soil to support its functions, such as carbon storing, says Phil Chatfield, soil policy manager at the Environment Agency (EA). “Buildings, roads and parking areas all have the potential to cover the soil with an impermeable layer which prevents water from soaking into the soil.”

The EA has welcomed the directive and the focus it provides on protecting soil for its own sake. “The organisms in the soil play an essential part in breaking down pollutants in water and maintaining the balance of gasses in our atmosphere,” says Chatfield. “Sealing the surface stops air and water entering the soil and organisms can no longer function.”

He says that in some cases, there will be no reasonable alternative to soil sealing. “For parking areas and lightly loaded roads, the use of permeable paving provides a way to conserve some of the functions of a living soil. The use of green roofs may be possible for buildings, replacing at least some of the functions of the original soil
cover.”

Jeopardising housing targets
The Soil Framework Directive will jeopardise the government’s target for 60% of all new housing developments to be built on brownfield sites, according to John Slaughter, director of external affairs at the Home Builders Federation (HBF).

The HBF has worked closely with Defra and the Department of Communities and Local Government (DCLG) on the consultation. The biggest issue on development, he says, will be how it potentially affects the remediation of brownfield sites.

“My understanding is that the government shares much of the concern that the directive shouldn’t make it unduly difficult to use sealing where it is an appropriate way of remediating the soil,” he says.

Slaughter says finding alternative remediation techniques may be either difficult, impossible or very expensive, making some sites unsalable or unviable. “We’re now building roughly 75% of new homes on brownfield sites and the risk to this government objective if the legislation is too restrictive is considerable.”

Slaughter is also concerned that the directive will affect contractors who use sealing for a platform underneath a structure to help support buildings.

“There are good reasons why you would want to continue to be able to use sealing. Not at the expense of reasonable environmental requirements, but it is about getting the balance right.”

Slaughter says he is unaware of any other reliable platform alternative. “I don’t know how you would get round it because if you need to have that kind of underpinning or support, I’m not sure there is any real alternative.”

An aggressive policy against sealing might force contractors to remove soil from sites, says Slaughter. “It would be perverse if preventing sealing meant that you had more pressure to use landfill.”

Despite the latest version of the directive moving a reasonable way to being helpful in this respect, Slaughter is concerned that it might be too little.

Contaminated land inventory
However, Papanicolaou says the directive will lead to a more rigorous identification and remediation of contaminated soils.

One of the key elements behind the directive is for each Member State to draw up inventories of sites, which have been subjected to contaminative uses.

They should be updated at least every seven years to include new contaminated sites and exclude sites that have gone under remediation. The report says that an onsite risk assessment would have to be carried out in relation to those sites.

The initiative would provide potential buyers with a full analysis of the site and concentration levels of the dangerous substances in the soil.

Papanicolaou says the initiative has been carefully targeted.

In identifying groups of sites, which contain dangerous substances, from airports to military sites. “They’ve given it some thought as to what they’re trying to target,” he says.

A criticism leveled at the policy from a UK perspective is that it already has directives in place to deal with contaminated soils through policies such as the Contaminated Land Regime.

The EU Parliament’s latest recommendation is that risk assessment methodologies will be from Europe. This has riled UK environmental organisations, who claim it will derail years of hard work. A spokesperson for the Environmental Protection UK says, “In the UK our approach has been developing for at least 15 years and is still not finalised, so it would be a big undertaking to get the EU wide risk assessment methodologies and then disseminate it across an industry that has not yet fully come to grips with the current UK approach.”

Flexibility
The commission expects the directive to enter in force by 2008, and as such it is not yet finalised and is still under debate.

Joanna Kwan, project manager at the Construction Industry Research Information Association is confident there will be some flexibility. “I personally don’t think it will be implemented word for word,” she says. “This is more focused on countries who do not have any contamination regime whatsoever. It gives them a target. So it’s good for these countries, but I don’t think the UK, Germany and the Netherlands would accept it as it is because we are more mature and developed.”

Chris Papanicolaou is equally sure of the government’s position. “I just get the feeling from the tone of the consultation document that the UK government really wants to negotiate this,” he says. “We’ve got legislation on environmental liability, waste, landfill and water quality, how much more do we really want?”

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