Land Journal
People power The remarkable popularity of Neighbourhood Plans PG.
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Land of opportunity
Let there be light
Fresh thinking
RICS Africa Summit reviews sub-Saharan growth potential
Law reform proposals aim to reduce rights injunctions
Updating water abstraction to meet supply and demand
PG.
6
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14
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24
June/July 2015
rics.org/journals
A DV E RTI S I N G
RICS L A N D JO URN A L
CANARY WHARF LONDON
ANNUAL
CONFERENCE
THURSDAY 2
JULY 2015 JOIN THE UK’S LEADING INFRASTRUCTURE PLANNING EXPERTS
Further info email conference@nipa-uk.org or visit www.nipa-uk.org/events/ or call 020 7242 4141
Joint Planning Law Conference Oxford The leading annual planning law conference Speakers include:
Keynote Address: Liz Peace CBE
The Honourable Mr Justice Lindblom
Dame Kate Barker DBE, Non-Executive Director, Taylor Wimpey and Economist
Mike Kiely, Director of Planning, London Borough of Croydon
Clare Fielding, Partner, Lawrence Graham & Co LLP
David Rudlin, Director, URBED (Urbanism Environment and Design)
Dr Nigel Barker, Planning and Conservation Director London, Historic England
Nigel Hewitson, Partner, BrookSteet des Roches LLP
Ben Page, Chief Executive, Ipsos MORI
Book by 30.6.2015 to secure the early bird fee of £599 + VAT which includes 2 nights’ college accommodation and breakfast at New College; lunch on Saturday at the Oxford Union; 2 conference black tie dinners with wines; refreshments and conference documentation HOW TO BOOK On-line www.jplc.org/booking Email lucinda@jplc.org
To ad ve rtise con t a c t C h a r l o t te Tu r n e r +4 4( 0 )2 0 7 8 7 1 5 7 3 4 or c harlot te@wearesu nday. c om 2 J U N E /J U LY 2 0 1 5
RI CS LAND JOUR NAL
C O NTENTS
contents
Front cover: ©Alamy
CO N TAC TS
4 From the chairmen
LAND JOURNAL
5 Update
Editor: Mike Swain T +44 (0)20 7695 1595
E mswain@rics.org
Editorial team: James Kavanagh, Fiona Mannix, Tony Mulhall (Land Group) Land Journal is the journal of the Environment, Geomatics, Minerals and Waste, Planning and Development and Rural Professional Groups Advisory group: Tim Andrews (Stephenson Harwood LLP), Philip Leverton (College of Estate Management), Rob Yorke (rural chartered surveyor), Michael Rocks (Michael Rocks Surveying), Tim Woodward (rural chartered surveyor), Michael Birnie (Buccleuch Estates), Marion Payne-Bird (consultant), Frances Plimmer (FIG – The International Federation of Surveyors), Duncan Moss (Ordnance Survey), Kevin Biggs (Royal Bank of Scotland) The Land Journal is available on annual subscription. All enquiries from non-RICS members for institutional or company subscriptions should be directed to: Proquest – Online Institutional Access E sales@proquest.co.uk T +44 (0)1223 215512 for online subscriptions or SWETS Print Institutional Access E info@uk.swets.com T +44 (0)1235 857500 for print subscriptions To take out a personal subscription, members and non-members should contact Licensing Manager Louise Weale E lweale@rics.org
Published by: Royal Institution of Chartered Surveyors, Parliament Square, London SW1P 3AD T +44 (0)24 7686 8555 www.rics.org ISSN: ISSN 1754-9094 (Print) ISSN 1754-9108 (Online) Editorial and production manager: Toni Gill
6 Land of opportunity
Libby Peacock reports on the recent RICS Africa Summit, which examined chances for growth across the land, built environment and property sectors in key sub-Saharan economies
8 Who cleans up?
Simon Boyle examines how the complex laws governing contaminated land can be a concern for surveyors
10 People power
Paul Collins looks at how Neighbourhood Plans are helping local people to get involved in decision making
14 Let there be light
Charlotte Coleman explores the concept of a right to light and how proposed Law Commission reforms might help fairer resolution of disputes
18 Get involved
Robin Mewes argues that chartered surveyors can play a vital leadership role in building community assets
20 Extracting the evidence
What are the likely environmental impacts of shale gas and what are the risks compared to other energy sources? Laurence Stamford and Adisa Azapagic investigate
22 Runaway success
Green roof retrofit might offer a partial solution to reducing runoff from buildings during heavy rainfall. Sara Wilkinson, report Jessica Lamond and David Proverbs
24 Fresh thinking
Proposed abstraction reforms link water rights to shares and their prices. Mike Norbury and Dr Louise Bracken consider the options and implications
16 Works like magic
With more datasets and better functionality, the MAGIC website continues to respond to users’ needs, report Trevor Dibb and Andrea Ryder
Sub-editor: Gill Rastall Designer: Craig Bowyer Creative director: Mark Parry Advertising: Charlotte Turner T +44 (0)20 7871 5734 E charlotte@wearesunday.com Design by: Redactive Media Group Printed by: Page Bros
While every reasonable effort has been made to ensure the accuracy of all content in the journal, RICS will have no responsibility for any errors or omissions in the content. The views expressed in the journal are not necessarily those of RICS. RICS cannot accept any liability for any loss or damage suffered by any person as a result of the content and the opinions expressed in the journal, or by any person acting or refraining to act as a result of the material included in the journal. All rights in the journal, including full copyright or publishing right, content and design, are owned by RICS, except where otherwise described. Any dispute arising out of the journal is subject to the law and jurisdiction of England and Wales. Crown copyright material is reproduced under the Open Government Licence v1.0 for public sector information: www.nationalarchives.gov.uk/doc/open-government-licence
J U N E /J U LY 2 0 1 5 3
RICS L A N D JO U RN A L
C H A I R M E N ’S CO L U MN
FROM THE
CHAIRMEN ENVI RON ME N T & RES O UR C E S
Andrew
Fitzherbert MRICS
I mentioned in the May/June issue that the government had suggested changing the rules regarding non domestic rates so that alterations to rateable values can only be backdated to 1 April 2010, if the ratepayer made an appeal before 1 April 2015. The regulations have been confirmed so appeals put in after 1 April 2015 will not be able to change the rating assessment earlier than that date. Also the Valuation Office will not be able to backdate any changes before 1 April after 1 April 2016. Please put 8 October in your diaries for our autumn conference at the Holiday Inn Filton in Bristol. Topics including mineral rights, waste assets and mineral resources are being considered. If you have any views on what should be covered, please do not hesitate to let us know. The APC review is ongoing and your board will be looking at making sure the pathways we deal with are fit for purpose now and the future. Again, any views are welcome.
our global strategy and Africa (along with China and Caribbean) is a key region for us. The important issue of de-risking land and resource was part of the agenda and is also a vital driver behind the thinking on the International Land Measurement Standards (ILMS). The broad coalition concept, as adopted for the International Property Measurement Standards, is being applied for ILMS and an expert working group has been formed to develop a scoping document. This was also one of the stand out messages from the World Bank Land and Poverty Conference in March, where RICS presented a number of papers (http://bit.ly/106Gfvj). Globally, the board is focusing on ecosystem value, smart cities and unregistered land and further development of the ‘robust’ model, re-establishing links with bodies such as the Ghanaian and the Kenyan Institutions of Surveyors. We are committed to the International Federation of Surveyors FIG, the Comité de Liaison des Géomètres Européens and ISM and to forming land and resources regional boards where needed.
RURAL
John LAND & RESOURCES GLOBAL BOARD
Barney
Pilgrim FRICS
The Africa Summit article is an important one for the land and resources global board and in some ways is the culmination of the early stages of our strategy. Board members Diane Dumashie and Ruth Adams were present in Johannesburg and helped to put together a diverse and broad-based programme. The board has been working hard to bring geographical and practice focus to 4 J U N E /J U LY 2 0 1 5
Lockhart FRICS
There were a number of key messages from the Confor conference at RICS in March including the need to address the massive drop off in commercial planting since the loss of tax relief, to maintain the processing sector and encourage future investments. The sector is very fragmented and is failing to get its positive messages across to the government and investors. Importantly, forestry and timber deliver multiple benefits both during the growing process and as a sustainable construction material giving huge opportunities for safe and simple carbon storage.
David Hopkins, of Wood for Good, highlighted that by using timber construction techniques, the 200,000 homes currently required could store four million tonnes of carbon dioxide equivalent, with faster delivery, ease of use and natural insulation. Politicians seemed united on the need to see the woodland resource expanded and managed more effectively to deliver benefits within economic sustainability. Meanwhile, Royal Forestry Society Development Director Simon Lloyd is speaking at our rural conference on 18 June at the Royal Agricultural University in Cirencester.
PLA NNI NG & DEV ELOPMENT
Paul
Collins MRICS
In 2011, the P&D Professional Group produced the Green infrastructure in urban areas information paper, which examined the environmental, social and economic impacts of investment. Green space, landscaping, sustainable drainage and green roofs/walls are now a much more common component in new development. Toronto introduced a byelaw in 2009 to make green roofs mandatory and since March 2015 France has required new commercial buildings to include solar panels and/or a green roof. In the UK, many local authorities have stronger policies and many building owners and developers will continue to see their long-term value. The information paper will need to be updated and it would be good to hear of members’ experiences in planning for green infrastructure and its costs and values. It is also interesting that a new report by the UK Green Investment Bank, Smarter, greener cities: 10 ways to modernise and improve UK urban infrastructure, makes the case strongly on the opportunities to unlock immediate benefits (http://bit.ly/1CNYEs6).
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UPDATE
UPDATE Costs and values on a broader development front are the subject of our Viability in planning and development conference on 23 June in London (see http://bit.ly/1Etbemf). Speakers include Ruth Stanier, Deputy Director, Planning at DCLG, giving an overview of the new political and economic landscape for viable planning and development, and Kate Henderson, Chief Executive at the Town & Country Planning Association, on strategic land use options: de-risking, viability and the environment challenge. Other sessions are led by Alan Gunne-Jones, Principal at Planning and Development Associates, and Simon Coop, Director of Planning at Nathaniel Lichfield Partners, Cardiff.
GEOMAT I CS
Chris
Preston FRICS
I commend the report on the Africa Summit by the journal’s former editor Libby Peacock. The event was important for highlighting the diversity of RICS knowledge and its application in a rapidly emerging market. Africa has many solvable issues, one of which is ‘risk’ within the land investment process. Measurement is just one way we can help achieve this. The article on MAGIC brings geo data and rural practice (along with environment) together and the legal feature on potential changes to rights to light legislation is worth a read for geo specialists in this sector. The 2010 Rights to light 1st edition guidance note is currently being revised by our experts on the Boundaries and Party Walls Panel. Watch this space for a launch in 2016. We are gearing up for the 2015-16 evening lecture sessions with some high-profile speakers. We are also looking at producing a Hydrographic Survey section for the industry standard Measured surveys 3rd edition 2014.
Revised standard to simplify environmental management Changes to ISO 14001 in 2015 are significant and aim to make organisations integrate environmental decisions into their business planning. It introduces a life cycle approach to evaluating environmental impacts and the purchase of goods and services. ISO 14001:2015 is due to be published towards the end of the year, but organisations that currently hold accredited certification to ISO 14001:2004 are granted a three-year conversion. The 2004 international standard sets out the criteria for an environmental management systems (EMS) and organisations can be externally certified to this standard. An EMS helps organisations to manage their environmental risk. This is done, in basic terms, by identifying the activities they carry out (aspects) and assessing the impact they have on the environment. ISO 14001:2004 operates a plan, do, check, act approach, where environmental impacts are identified
and targets set, operational controls applied, then checked via audit with improvements acted on to deliver continual improvements. Benefits of operating an EMS and holding accredited certification to the ISO 14001 standard can include: bb reduced risk of prosecution by meeting legal requirements bb cost savings in energy, waste and materials bb winning work by meeting customer purchasing criteria bb enhanced public image. Accredited certification to the ISO 14001 standard in the UK should be via a UKAS certification body. Costs depend on the size of business and business risk. The revised standard will follow a common structure, with the same terms and definitions as management system standards such as ISO 9001. The aim is to make them easier, cheaper and quicker to use. n Submitted by David Inman FRICS, Chartered Environmental Surveyor
Garden cities guide
Garden cities are rising up the agenda after a government prospectus in 2014 invited expressions of interest to develop new settlements. A glossary is available from RICS Library to introduce and outline the history of these developments. n www.rics.org/uk/knowledge/glossary/garden-cities
Disaster response A new UN e-learning course explains how livelihoods and tenure rights are affected by natural disasters. The three-lesson module illustrates how responsible governance of tenure of land, fisheries and forests can support a disaster management process through improved prevention, mitigation, preparedness, emergency response, recovery and reconstruction. n For details, visit http://bit.ly/1Iea3rR
RICS Rural Conference 18 June, Cirencester The flagship conference returns with an impressive speaker line up. Among other topics, the event will explore the GIS-based Map of Agriculture project, which highlights production yields and financial returns worldwide. n For a full programme, visit www.rics.org/ruralconference
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RICS L A N D JO URN A L
A F R I CA
Libby Peacock reports on the recent RICS Africa Summit, which examined chances for growth across the land, built environment and property sectors in key sub-Saharan economies
Land of opportunity
A
frica is taking its place on the world stage in terms of real estate, infrastructure and construction and as the continent’s markets and economies grow, opportunities are opening up. This was the clear message from speakers and panellists at the RICS Africa Summit in Johannesburg, South Africa. The well-attended event in March – RICS’ first international conference on the continent – brought together professionals, academics and industry leaders. A theme running through the discussions was that the RICS can play an important role in helping countries to build consistent standards where needed, albeit with a definite focus on collaboration with existing bodies and governments. RICS President Louise Brooke-Smith told the participants: “We have evolved into a truly international body. By 2020, the majority of our membership will be from countries other than the UK. We are seeking to spread best practice wherever we find it.” While several speakers, including emerging market economist Kganya Kgare from asset manager Stanlib, stressed the divergences within the continent, all acknowledged that consistent standards will go a long way to addressing challenges. Whereas inflation in East Africa is well within target and the Kenyan Shilling is stable, with 6% growth expected in 2015, inflation in Nigeria is expected to accelerate from the middle of the year and interest rates are at an all-time high, said Kgare.
Risks and momentum The continent’s economic growth is predicted to outpace all others in the next five years, with forecasts showing that 6 J U N E /J U LY 2 0 1 5
four of the world’s 10 fastest-growing national economies will be African. The panellists looked at investment sources, risk and the vital ingredients underpinning ongoing momentum required to sustain growth. One conclusion was that commercial property is among the darlings of the market in countries such as Ghana, Kenya and South Africa. Martin Brühl, RICS President Elect and Head of International Investment Management at Union Investment Real Estate, stated that there are investors who think that Africa is the new Asia. Again, the need for benchmarking and adequate data was mentioned. Francois Viruly, of the University of Cape Town’s Department of Construction Economics and Management, identified Kenya, Rwanda, Ghana, Mozambique and Zambia as possible markets for new investors. He said risk cannot be assessed without reliable valuations.
Planning and skills “Spatial transformation is an evolutionary animal,” said Johannesburg town planner and Manager at Ekurhuleni Metropolitan Municipality, Itumeleng Nkoane. He called for a mix of the ‘first and second’ (formal and informal) economies. “As planners, we cannot industrialise in the same way as Europe and America… living in a sustainable environment is not only about a beautiful environment, but about survival. There should be a shift from
“ There have to be more people on the dance floor in Africa – fortune will follow the brave
being development controllers to being development facilitators.” Brooke-Smith agreed that planning is a balancing act, citing the increasing neighbourhood approach to planning and commercialism even in developed countries such as Britain. However, she identified a massive gap in two areas: not enough skilled professionals in the built environment and a lack of data and information. Co-panellists Nkoane and James Dadson, Chief Lands Officer at Ghana Land Commission, agreed. Nkoane said not enough young people are encouraged to go into the built environment as a career in South Africa. Dadson said since investors come in primarily to make profit, African governments should position themselves to absorb investors in a way that benefits society.
Harnessing opportunities In a session on the African economic engine, the question was asked what infrastructure sub-Saharan Africa needs to be truly globally competitive. Dale Ramsden, Founder and Managing Partner at RMB Westport, said the “supply and demand mismatch” in countries such as Ghana, Nigeria and Angola creates opportunities for those willing to take the risk. His investment management and development firm is focused on creating value-added real estate developments in high-yield geographies. While RICS can be a huge help in drawing up standards, African countries often wrongly ‘get a bad rap’, he added. “There are planning standards and approval processes. You have to be
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Governing Council group (left) and the summit created lively debate (below) support the skills that underpin the surveying profession in Africa through training. RICS can also promote surveyors as professionals to external stakeholders such as governments, engineering professionals and others.
Transparency and growth
patient and things will happen. Do proper traffic impact studies, don’t take short cuts and embrace the community.” In these countries, urban planning is a challenge; there is an emotional attachment to land and a strong demand for A-grade real estate. There are opportunities in the massive retail shortage and limited competition, but challenges in growing the debt market, delivery and a lack of qualified rentals. Strong local partnerships, market knowledge, a zero tolerance of corruption and having the necessary equity in place are key. Ramsden, who said returns to his investors have been 25%, stressed the ability to adapt is crucial. “There have to be more people on the dance floor in Africa – fortune will follow the brave.” RICS Senior Vice President Amanda Clack noted: “In an ideal world, you start with planning. In reality, each country in Africa starts from a different place.” She pointed out that the absence of adequate infrastructure costs African countries two percentage points in terms of GDP growth per year.
One of the reasons China is successfully investing in infrastructure development in countries such as Nigeria is that it is willing to take the extra risk, speakers said. Chinese companies tend to take a long-term view based on a model linking infrastructure and real estate development.
The land perspective Participants in a round table discussion on land reform said land in South Africa is either held in full title, an open and transparent system, or by communal property associations or trusts, which are not always transparent. It was felt that in terms of standards there should be more evaluation and monitoring. Across Africa, problems in the development of rural land stem from ownership problems, they said. There is therefore a need for a clear, inexpensive registration system. RICS can bring understanding of fit-for-purpose land administration programmes and also help with technology and crowdsourcing, noted RICS Governing Council member Diane Dumashie, pointing out that existing African Union and Pan-African guidelines can also be part of the solution. Ruth Adams, land cluster representative on the RICS Governing Council, said the organisation could
Investment risk will be reduced by increased transparency and a zero tolerance of corruption, the closing panel agreed. Data points are also key to de-risking – another area where RICS can play a role. Debunking several myths about his continent, Broll Chief Executive Jonathan Yach described himself as a ‘proud afro-optimist’. “Africa is probably one of the most connected of continents, and this is driving growth,” he said. While social instability poses a risk, corruption needs to be dealt with and democratic governance must be encouraged. Opportunities lie in the continent’s young, well-informed and rapidly more urbanised people. Enhanced electrification is also opening up opportunity and scope. “This continent Africa is redefining itself through its real estate,” Yach said.
Support from RICS “Standardised valuation practices around Africa will increase transparency,” said Amelia Beattie, Chief Investment Officer of Stanlib and President of the South Africa Property Owners Association, adding that she had seen interest in South Africa and Africa increasing significantly over the past two to three years. “The capital is out there. Our biggest challenge is to find investable opportunities. The international market is looking for a much more significant investment base. We should learn as an industry to work together and to bring these opportunities to the world.” In response, RICS Chief Executive Sean Tompkins concluded: “RICS is a natural collaborator to make this happen.” RICS would be delighted to support the development of valuation standards and prepared to host meetings with leaders and stakeholders to agree common standards, he said. C Libby Peacock is former editor of the Land Journal, now living in South Africa libby.peacock@gmail.com
J U N E /J U LY 2 0 1 5 7
RICS L A N D JO URN A L
P O L L U TI O N
Who cleans up? Simon Boyle examines how the complex laws governing contaminated land can be a concern for surveyors
C
ontaminated land has a nasty habit of turning up in unexpected places at the most inconvenient times. One of the classic examples is contaminated wastes from former gas works dating back to Victorian times. These produced highly toxic waste products, one being ‘blue billy’, high in cyanide. With some types of contamination the pollution is contained (lead from smelting works, for example), but it can be highly mobile, leaching into groundwater beneath the property and migrating over long distances – up to several kilometres. Although industrial areas of the UK, such as the West Midlands and the Mersey, will contain higher concentrations of polluted land, contamination can also be found in the more leafy counties such as Hampshire or Surrey from sources such as petrol stations, dry cleaners and waste sites.
Law changes The UK is one of the few countries (others are the USA and the Netherlands) that has legislation dealing specifically with contaminated land rather than general pollution, inserted into the existing Environmental Protection Act 1990 as Part 2A. The legislation is complex, but a thorough reading alone is not sufficient because the essential detail is set out in three successive sets of statutory guidance. The first accompanied the main legislation, the second was released in 2006 and the current version, which is considerably shorter than its predecessors, in 2012. The 2012 guidance introduced a four category test (Category 4 Screening Levels) to decide when land is contaminated. Picture a pyramid with the top layer (category 1) as the most contaminated, and the next layer category 2 still falling within the definition of contaminated land but less severe. Below them are categories 3 and 4, which are not classed as contaminated. Clearly, the critical distinction is between 2 and 3 and there will be some difficult borderline cases for local authorities to assess. 8 J U N E /J U LY 2 0 1 5
Who pays? One of the most controversial aspects of any contaminated land regime is who should pay for the clean up. The UK government based the legislation on the polluter pays principle. But the rule is so full of exceptions that this assertion only just holds true. If you cause the land to be contaminated, you remain liable even if you later sell that land – Class A persons in the statutory guidance. Industrial companies therefore need to be careful when selling sites to housebuilders. At that point, it is quite likely that the pollution has not caused any harm. However, strip away the concrete floor and build a housing development with gardens, and there becomes a very real risk of exposure to toxic chemicals. Prudent sellers of industrial land should include contractual provisions allowing them to inspect during the building work to ensure that any contamination is properly dealt with by the developer. Because so much of the UK’s contamination is historic, the original polluter may have disappeared long ago. Liability then shifts down to the next level, so-called Class B persons; the unfortunate current ‘innocent’ owners, who had no part in causing the contamination and may well have been unaware of its existence when they purchased the property. Nonetheless, they will be liable for the costs of the clean up in the absence of the actual polluter. In commercial transactions, lawyers will often draft and negotiate contractual provisions stating which party should carry any liabilities relating to contamination. For example, a clause could state that, in the event of a contaminated land liability, the full responsibility will rest on the buyer. If they were anxious to secure the property and think the risk is low, buyers might well accept such
“ If you cause the
land to be contaminated, you remain liable even if you later sell that land Image © Alamy
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If it is not considered at an early stage, the developer could be hit by a nasty surprise of contamination, which is costly to remove and dispose of. As well as a budget overrun, there could be severe delays to completion.
European regulations Most UK environmental legislation derives from EU Directives, transposed into UK law. Part 2A is a notable exception, being ‘home grown’ by Parliament. Among member states, the Netherlands also had legislation dealing specifically with contamination, but most others did not. In 2004, the EU passed the Environmental Liability Directive (ELD), which had some overlaps with Part 2A. Initially, there was some concern that the ELD (transposed into the UK as the Environmental Damage Regulations 2009) could affect the operation of Part 2A. In practice, the regulators have shown some reluctance to use their EDR powers in relation to land contamination clean up, with most action being in relation to water pollution. a provision, maybe with some reduction in the purchase price to reflect this risk. Everyone involved in the property chain needs to be mindful of contamination. The industrial seller will want to ensure as far as possible that they are not caught ‘on the hook’ by the regulators for a costly clean up several years after they have sold the property. The developer should ensure that any contamination is identified and removed or made safe prior to building. And the house purchaser should ensure that they are buying a property free from contamination, or they could be required to pay.
Planning The government’s intention was always that Part 2A should be used as a last resort and generally, landowners should voluntarily clean up their properties, aided by tax incentives. But the vast majority of contaminated sites are remediated as part of the planning process during redevelopment. The seller, or developer, will commission environmental consultants to identify areas of contamination, especially when buildings are demolished because this presents the ideal time for remediation work. The original government guidance, Planning Policy Statement (PPS) 23 Planning and Pollution Control issued in 2004, made it clear that it was the responsibility of the developer to manage contamination on property. The document was replaced in March 2012 by the National Planning Policy Framework, but this said much the same thing on this subject. Paragraph 120 states: “Where a site is affected by contamination … responsibility for securing a safe development rests with the developer and/ or landowner”; and Paragraph 121: “Planning …decisions should also ensure that the site is suitable for its new use” and “after remediation … [it] should not be capable of being …Part 2A”. Planning Practice Guidance Land affected by contamination, which appeared in 2014, talks about the use of planning conditions to deal with the risk of contamination. Surveyors acting for developers should turn their mind to the risk at any early stage. An assessment with indicative costs should be commissioned and discussed with the developer to see whether the likely costs could kill the deal or whether there should be some renegotiation on price.
Insurance A problem with contaminated land is that even if you know it is there, you do not necessarily know what the regulator will require. It may not be doing any harm and no clean up is required. On the other hand, the contamination may migrate, causing a problem offsite, and so the regulator takes action. Such contingent liabilities can create unease for both buyers and sellers. In a commercial transaction, the seller might be keen to sell the property in the knowledge that there could be no come back in the future. The buyer in this scenario, meanwhile, may not be happy to take on any liability for contamination they did not cause. Experience has shown that US companies are particularly unwilling to take on contaminated land liabilities even when the risks are low. This can often lead to stalemate. The best way of breaking the deadlock is to take out a specialist insurance policy where the liability risk is taken on by the underwriter. Over the years, this type of cover has become more comprehensive and the costs have fallen greatly.
Conclusion The contaminated land regime in the UK is complex but the strategy for dealing with the risks can be straightforward. The key is to identify potential contamination at an early stage through a basic desktop report, costing about £200 for a good commercial study, or a Phase 1 site inspection at around £2,000. Then, if necessary, expert advice from environmental consultants and lawyers can be obtained so that the risk is quantified and managed. C
Simon Boyle is Environmental Law Director at Landmark Information Group simon.boyle@argyllenviro.com
Related competencies include Legal/regulatory compliance, Sustainability
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RICS L A N D JO URN A L
PLANNING
Paul Collins looks at how Neighbourhood Plans are helping local people to get involved with decision making
People power
F
or all the difficulties, the story so far on neighbourhood planning is arguably one of the most remarkable of all developments in citizen participation. If wider aspects of the Localism Act 2011 have not gained much engagement, neighbourhood planning has, as reported in local papers on a regular basis. Introduced by the coalition government, there are now more than 1,400 Neighbourhood Plans (NP) in various stages of development and approval (see Figure 1), of which 52 have now passed the referendum stage. In all cases so far, the statutory requirement for a 50% majority for NPs has been met. In St Eval, Cornwall, a 92% supporting vote was achieved with a near 34% turnout. This is set against the poor progress of Local Plan preparation and approval, with only 62% of authorities having an adopted plan. Of the eight English core cities, for example, two are still outstanding: Liverpool and Birmingham and two others only had their plans adopted last year and another this March. Even star performing Cambridge does not have one in place.
People planning In terms of the spatial planning hierarchy NPs are the most fine grained part of the system (see Table 1). According to the National Planning Policy Framework: “Neighbourhood planning gives communities direct power to develop a shared vision for their neighbourhood and deliver the sustainable development they need.” The take up by members of the public appears far higher than engagement with 1 0 J U N E /J U LY 2 0 1 5
the wider local plan-making process. Gnosall Parish, in the borough of Stafford, received more than 115 comments in the first round of consultation. Some authorities get no more for the whole district. Meanwhile, in Oakley, Basingstoke, about 1,000 people responded to the consultation exercise of its emerging plan, representing around half of all voters in the neighbourhood. Perhaps nothing changes. In 1976 it is recorded that in Camden: “Meetings held to discuss the Greater London Development Plan attracted 0.1% of the population and, of this, half the people were councillors, officers and representatives of civic and other societies. On the other hand people in a neighbourhood area do turn out and form active, if short-lived associations, when a council road proposal is made affecting the neighbourhood.” NPs can be produced by a town or parish council, but if neither of these exist, a neighbourhood forum can do so. However, the local authority has to agree Image © Alamy
how the group is constituted (http://bit.ly/1MFKynt). Supporting communities in the development of Neighbourhood Plans, the Locality network has helped more than 800 groups with advice and access to financial support (http://bit.ly/1yFNZz1). Help is also available from web-based resource Our Neighbourhood (http://bit.ly/1u8Dkgt).
Plan objectives In Oxford, Headington Neighbourhood Forum’s overarching plan objective is: bb improving the quality of life for residents, workers and students bb establishing and promoting an identity which embraces the diverse nature of Headington bb fostering beneficial development (http://bit.ly/1NKGgrY). In doing so, it can designate sites for development and the design guidelines. In addition, the existence of a Neighbourhood Plan will mean that
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Figure 1
Table 1
Plans progress
Planning hierachy Spatial reach
Policy document
Relevant bodies
National
National Planning Policy Framework
Government (Department of Communities and Local Government)
Regional
None
No tier: LEPs the closest body, but no spatial planning function
City Region
Currently only the London Plan
London Mayor has planning powers
Local
Local Development Plan: Core Strategy
Local authorities, National Park Authorities
Neighbourhood
Neighbourhood Development Plan, Neighbourhood Development Order, Community Right to Build Order
Town & Parish Councils, Neighbourhood Forums
Source: Adapted from RICS information paper 2014 a town/parish council will receive 25% of the Community Infrastructure Levy collected in relation to new housing. The funding is open for the community to use as it sees fit. Meanwhile, Bedford Borough Council states that the levy can be used for “the provision, improvement, replacement, operation or maintenance of infrastructure”; or “anything else that is concerned with addressing the demands that development places on an area”. This could include affordable housing or improved local community facilities.
Figure 2 Arnstein's Ladder
Community engagement The modern history of community engagement goes back to the Skeffington Report in 1968, which provided the basis for a formal system of public participation in plan making. While many saw it as little more than ‘telling and selling’ rather than participatory planning, it was an important step. In terms of the Sherry Arnstein’s Ladder of Citizen Participation compiled in 1969, current neighbourhood planning would seem to have taken us to at least rungs six and seven (see Figure 2). The key difference in the current approach, however, is that the community directly produces their own plans – as long as it conforms with the overarching local plan. Any disjuncture between a local community’s aspirations and the wider aims might lead to slipping down
a rung or two. However, in the evolution of such participatory planning processes, this might encourage an even greater involvement with wider Local Plan making processes. In terms of publicity, some neighbourhoods have used unusual methods to raise interest. Ahead of the vote on the Inner East Preston NP, for example, the Red Rose Brass Band took to the streets to play.
these, the first plan to gain referendum support was Upper Eden in the Lake District. The development broadly follows the process in Figure 3 (p13). The starting point was to designate the physical boundaries of the neighbourhood area. Brough Parish Council, as the lead representing the Upper Eden community, along with 17 others in the area, submitted an application in May 2012 and following an eight-week consultation period was granted the right to produce a plan. A draft was then prepared and submitted to Eden District Council, which issued it for public comment for the required six-week period. An independent examiner was then appointed to review the plan and assess whether it was fit to go forward to a formal referendum. In making his recommendation, he had to confirm
l The Preston NP vote was heralded by a brass band
The process At the outset of the NP policy initiative, in excess of 40 areas were selected as front runners by the government. Of
Image © Neil Cross
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RICS L A N D JO URN A L
PLANNING
Some plans have even provided for more housing than that set out in an overarching local plan. Cheshire West and Chester’s draft Local Plan identified the need for 3,362 homes. The Winsford NP, which contained the largest allocation of new housing yet, included a further 200 units, which according to Locality “was in recognition of the investment that new housing would bring, helping the town achieve its aspiration of regeneration”.
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that the plan would meet the basic conditions as follows: bb they must have appropriate regard to national policy bb they must contribute to the achievement of sustainable development bb they must be in general conformity with the strategic policies in the development plan for the local area bb they must be compatible with human rights requirements bb they must be compatible with EU obligations. The examiner was not, like a local plan, required to test its ‘soundness’ or examine other material considerations. Some changes were recommended and subsequently made, going forward for referendum with the support of the council in March 2013. The turnout from 1 2 J U N E /J U LY 2 0 1 5
the constituency was 33.7% and of those, 1,310 voted in favour, with 138 against – an overwhelming majority. The plan was formally made on 11 April 2013. The first business-led Neighbourhood Plan for Central Milton Keynes, by contrast, took over 18 months between the examiner’s report and a referendum. The reason allegedly was, ironically, a lack of funds: not a good way to promote the process. A pilot plan for Thame followed a similar process to Eden. However, notably, it was the first NP to allocate land for housing. In doing so, it spread its 775 home allocation across four main sites, rather than two larger sites favoured by the council. This was clearly important to the local community and is, arguably, exactly the level of decision making that underlines the rationale for localism.
Tensions However, there seems to be some evidence of conflict between the government’s growth agenda and more cautious plans. At the end of last year, then Communities Secretary Eric Pickles gave an emerging NP in Rolleston on Dove, Staffordshire, the benefit of the doubt in turning down a 100-home proposal after the developer won on appeal. Pickles’ view was that the appeal proposal undermined the neighbourhood plan-making process by predetermining decisions about the scale and location of new development central to the emerging Neighbourhood Plan. Support for the housing would have prejudiced the emerging local planning policies and had wider implications for neighbourhood planning nationally. Image © iStock
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Figure 3: Development process
Source: Muslim social services agency
Interestingly, this was not the first or last time that Pickles supported emerging neighbourhood plans in defending the localism agenda. As long as the planning arguments were sound, that was arguably his responsibility to do so. These interventions are nevertheless exposing some divisions between a local authority and its parish councils. In a case concerning 280 homes submitted to Aylesbury Vale DC, the development was opposed by Haddenham Parish Council, which thought it would undermine its near complete NP. After informing Pickles’ office, the outcome was an Article 25 notice directing the council not to grant permission without his authorisation. An officer’s report to the council had supported the application and in one part states: "There are no grounds on which to base a prematurity argument and there would be no justification on these grounds to withhold permission for the development sought.” It will also be interesting to see what happens to an emerging NP in Basingstoke, where an application for 85 houses by Gleeson Developments was turned down. The reasons were, in part, due to highway safety concerns, but Tom Favell, Chairman of Planning,
thought the proposal undermined the NP currently under consideration by Oakley Parish Council. It is very early days to make judgments as to the place and efficacy of these plans, but there is no doubt that the neighbourhood genie is out of the bottle. People who may have never been interested or felt able have been drawn into planning and development issues, finding a new voice and a vehicle with which to engage. As one district councillor for Hadleigh, Suffolk, said of a newly emerging neighbourhood plan: “If you don’t plan your future, someone else will.” Elsewhere, in sharing worries about new development, a recent letter writer to the East Sussex Times nevertheless argued in support of a plan that is up for referendum. “With a majority YES vote, future developments will have to work their way through the neighbourhood plan and will not be able to bypass the parish council without the agreement of the parish councillors who represent residents in the first instance. Mid Sussex District Council, as the planning authority will have to take note of what our Neighbourhood Plan contains. Voting NO achieves nothing, voting YES brings the opportunity of
better control, better infrastructure and a future of many possibilities.” The current evidence is that people want to plan their local areas – or at least be involved in the decision making. While areas without town or parish councils have more organisation to do in creating a representative neighbourhood forum – more and more are coming forward. C
More information >
RICS Neighbourhood planning: involving businesses and landowners information paper, http://bit.ly/1IUpST2 A detailed map of progress on neighbourhood planning can be found at http://bit.ly/1avHatu
Paul Collins is Chairman of the Planning and Development Professional Group Board and a senior lecturer at Nottingham Trent University School of Architecture, Design and the Built Environment paul.collins@ntu.ac.uk
Related competencies include Planning, Housing strategy and provision
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RICS L A N D JO URN A L
B O U N DA R I E S
Let there be light Charlotte Coleman explores how proposed Law Commission reforms might help fairer resolution of right to light disputes
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right to light is a right to enjoy the natural light that enters a building, usually through windows. This can either be expressly granted or, more often, acquired by light being received through a window or other opening for a certain amount of time, usually 20 years. A property owner is only entitled to a certain amount of light, which may not be necessarily all the light received, but where this is obstructed so that a sufficient amount of light is no longer received, the property owner is entitled to enforce their rights against the person causing the obstruction, by injunction and/or a claim for damages. Prompted by concerns within the development industry that property owners were increasingly defending their right to light not to preserve the light received to a building but to leverage significant payments of money (often in excess of the real value of those rights) from developers, the Law Commission published recommendations in December 2014 following a consultation in May 2013. It considered how the law might be clarified and examined whether the remedies available to the courts are reasonable, sufficient and proportionate. While the primary remedy for the infringement of a right of light is an injunction, damages have always been an alternative route where the injury is small, is capable of being estimated in money, can be adequately compensated by a small money payment and the case is one in which it would be oppressive to the defendant to grant an injunction, as in Shelfer v City of London Electric Light Company [1895]. In Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2007] the High Court provided guidance on how damages awarded in lieu of an injunction should be assessed. The correct measure of damages is the greater of damages for loss of amenity to the property owner enjoying the right to light, and damages to compensate for loss of the ability to obtain an injunction. The overall principle is that the court must try to find what would be a ‘fair‘ result of a hypothetical negotiation between the parties. 1 4 J U N E /J U LY 2 0 1 5
Although it is not the case that only serious infringements merit injunctions, historically developers have relied on Shelfer to ensure that developments are able to proceed except in the most extreme cases. However, many believe that the Shelfer test has been applied too restrictively, meaning that the courts have found it difficult to avoid granting an injunction.
Shock judgment These concerns came to a head following the decision in HKRUK II (CHC) Ltd v Heaney [2010], which sent shock waves through the development industry because the High Court granted an injunction in circumstances where it was widely anticipated that damages would be awarded instead. The developer was ordered to demolish two floors of a recently constructed and let building despite the fact that the property owner had allowed the development to be completed without taking any steps to protect his rights and despite the fact that there was a less than 1% loss of light. In the case of Coventry v Lawrence [2014], which concerned noise nuisance but is relevant to all property rights, the Supreme Court departed from the approach to awarding an injunction adopted in Heaney. It criticised the recent judicial trend to apply the Shelfer test mechanically even where loss suffered is minimal and the impact on the developer is severe. It recommended a more flexible approach, which is likely to result in damages becoming a more common alternative remedy. Despite the decision in Coventry, the Law Commission’s recommendations include the reform of this complicated and controversial issue of when damages should be awarded in lieu of an injunction. Image © iStock
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The introduction of a notice procedure whereby developers can serve notice on neighbours requiring them to obtain an injunction within eight months, failing which they will lose the right to an injunction (but not damages). Such a procedure will not lessen the chance of an injunction being granted, but will generate some certainty for those wishing to develop land and facilitate development after the injunctive period has lapsed. The simplification of the procedure by which developers can prevent their neighbours from acquiring prescriptive rights of light. The new system would allow a certificate of light interruption to be registered as a local land charge, which would terminate the process of prescription, but would have no effect on accrued rights of light. The introduction of a presumption that rights of light not exercised for five or more years (for example, because a window has been bricked up or a building demolished) have been abandoned. The introduction of powers for the Lands Chamber of the Upper Tribunal to discharge or modify unused rights to light, in the same way that it currently has in relation to restrictive covenants.
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Six recommendations The Law Commission recommends: That the ability to acquire a right to light by long user (known as prescription) be retained, but that the three methods by which such acquisition is currently possible be replaced by one straightforward statutory scheme based simply on 20 years of enjoyment immediately before. This is an interesting departure from the Law Commission’s original proposal that the ability to acquire a right of light by prescription be abolished entirely. Such a recommendation was rejected not only by property owners, but also by developers who were concerned that the abolition would hit property values. They were worried also that a two-tier market could emerge with land benefiting from rights to light being more valuable than land that did not and had no potential to do so in the future. The creation of a statutory test to determine whether the courts should order an injunction where a developer has infringed a neighbour’s right to light. The proposed test will reflect the Coventry decision and will focus on whether the grant of an injunction restraining development would be a disproportionate means of enforcing the landowner’s rights, taking into account all of the circumstances including: • the conduct of both parties • any unreasonable delay by the landowner in seeking an injunction • the loss of amenity attributable to the infringement (taking into account the extent to which artificial light is relied on) • the public interest (which might arguably take account of both expectations of the public as to protection of certain rights and public benefit from development).
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The Law Commission also considered whether it should make proposals for the reform of the method by which damages, payable where an injunction is not awarded, are calculated. However, it concluded that there was a lack of clear economic evidence of the impact that the decision in Coventry and the proposed reforms would have on the outcome of settlement negotiations. It therefore recommended that the government review this issue once its recommendations have been enacted and have taken effect. Despite the fact that the Coventry decision went some way to redress the balance between the competing needs of developers and property owners, the Law Commission’s recommendations will nevertheless be welcomed by developers that have faced uncertainty over their ability to develop sites to their full potential following Heaney. In addition, a proposed new procedure, whereby landowners must apply for an injunction within eight months of notification from a developer will promote a fairer balance, because they currently hold the upper hand in negotiations with developers that propose to obstruct their light. The recommendations are unlikely to enter the statute books in the foreseeable future. Until then, it will be ‘business as usual’ for developers, who must consider the impact that proposed developments have on the light received by neighbouring properties, and be aware of the real risk that an injunction will be granted where rights of light are infringed. b Charlotte Coleman is a Senior Associate in the property dispute resolution team at Winckworth Sherwood ccoleman@wslaw.co.uk
Related competencies include Legal/regulatory compliance, Development/project briefs, Measurement of land and property
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RICS L A N D JO URN A L
DATA
With more datasets and better functionality, the MAGIC website continues to respond to users’ needs, report Trevor Dibb and Andrea Ryder
Works like magic
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ow in its second decade of operation, the MAGIC website continues to be popular and valued, providing online environmental data in the UK. The service has evolved in response to new opportunities and contemporary geospatial tools, expanding its data holdings to meet user needs. Launched in 2002 with just over 50 English datasets, the current service now offers easy access to more than 200, including some that cover Great Britain, providing authoritative geographic information about rural, urban, coastal and marine environments from across government. From sites of environmental sensitivity to marine wind farms and oil rigs, data is presented in the form of an interactive map, and provides users with search, selection and cartographic visualisation tools at their fingertips. The service 1 6 J U N E /J U LY 2 0 1 5
is managed by Natural England on behalf of the MAGIC partnership comprising Natural England, the Department for Environment, Food and Rural Affairs (DEFRA), the Marine Management Organisation, the Environment Agency, English Heritage and the Forestry Commission. The site underwent a major makeover in 2013 by Landmark Information Group and partner Bramble.Hub to take advantage of service benefits afforded by the cloud. The transition took place in close partnership with Natural England’s Evidence team to ensure that the look and feel of the site and the functionality matched its vision for the future and to ensure that it contained the breadth and depth of features requested by its users. The MAGIC in the cloud service benefits from: bb a scalable and secure cloud hosting platform bb more than 200 datasets, grouped into logical themes (see Figure 1) and
updated monthly from a wide range of government sources bb a range of new functionality based on user requests. More than 60 functions are embedded in the service including: • a user interface designed for ease of use by a diverse range of visitors of varying skills and experience • selection, display, ordering and cartographic rendering of data within a table of contents. • links to metadata and supporting hyperlinks • setting the transparency of map layers • navigation tools – pan, zoom, roam, auto-scale map refreshes and by location/region, a “Where am I?” tool • a choice of map projections including WGS84 and ETRS89, which are more suitable for marine data • search for layer-specific features • measurement, drawing and a range of feature selection and identification tools
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• site constraints checks • map templates and print options • bookmarking favourite views bb The ability for users to download some of the datasets in a variety of formats. The site serves between six and eight million map images every month, and averages over 2,000 daily sessions with 200-plus users at any point in time. On 9 March 2015, 3,757 user sessions were recorded – the highest since relaunch. The inbuilt ‘horsepower’ and scalability of the underlying cloud platform ensures that the service performs under load, with average response times between a user request and map image generation in the order of 0.5 seconds.
What powers the service? The service runs continuously from a secure and resilient Landmark Private Cloud platform at two UK data centres. It has scalable virtualisation technology to provide the requisite technical architecture and performance and it is based on the ESRI geospatial technology stack. Base mapping comprises Ordnance Survey Open Data map sources plus Ordnance Survey detailed mapping supplied to Natural England under the
Public Sector Mapping Agreement. Aerial photography is served by a DEFRA data feed into the platform. Based on a recent survey with 2,620 responses, 70% of MAGIC users stated that the site fulfilled their requirements “very well” or “extremely well” and a further 25% felt that it served them “quite well”. Some 90% of users would recommend MAGIC to others. Given the diverse community using the resource and the diversity of content and tools, this is a credit to the design of the site. Questions around specific functions scored “satisfied” and “very satisfied” responses of between 71% and 96%. “I have just discovered the website and I am very impressed with what it offers. I will most certainly be making good use of this resource in the future,” said one respondent. Another said: “I think it is a fantastic resource and has improved greatly since I last used it, especially with the addition of aerial photography.” By far the biggest user group is private sector environmental consultants, who make up more than 36% of recorded use. Private individuals, farmers and land managers, engineers and academia are also notable user groups. Over 50% of respondents use the service at least daily or weekly – from
which it can be inferred that MAGIC forms a core component of a professional’s toolkit. About 20 different categories of use are identified, notably environmental and conservation work, consultancy, constraints checking, analysis and planning matters.
The future The original concept remains strong, but Natural England is aware that users’ requirements change over time. As manager, it is actively considering how the service can be further developed. One option is to explore the demand for an enhanced subscription-based service. Around 10% of survey respondents commented on the overall performance of the site and so parts of the architecture are being examined to find and fix any bottlenecks. A similar percentage of survey respondents made observations around the look and feel of the interface, which will guide design improvements for future versions. Requests for additional datasets and improved coverage will also be considered as an ongoing function of the service management team to ensure that the site continues to meet customer needs and those of the MAGIC partnership organisations. C
More information
Table 1: Dataset themes
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Theme
Contents
Access
Trails, paths, cycle networks, common land
Administrative boundaries
Includes a wide range of organisational and administrative geographies
Designations
Land based and marine. Includes designated site (e.g. SSSIs, marine conservation areas), heritage sites
Habitats and species
A wide range of land, coastal and marine habitat areas plus bird, mammal and protected species categorisations
Land-based schemes
Agri-environmental, forest, woodland and conservation schemes
Landscape
Geology, soil and landscape classifications
Marine
Fisheries and fishing activity, marine boundaries, licence areas and related socio-economic activities
Aerial photography and base mapping themes
At a wide variety of scales to set the thematic information in context
http://magic.defra.gov.uk
Trevor Dibb is Senior Pre-Sales Manager at Landmark Information Group trevor.dibb@landmark.co.uk www.landmarksolutions.co.uk Andrea Ryder is MAGIC Service Manager at Natural England support.magic@defra.gsi.gov.uk
Related competencies include Property records/ information systems, Management of the natural environment and landscape, Land use and diversification
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RICS L A N D JO URN A L
OPINION
Get involved Robin Mewes argues that chartered surveyors can play a vital leadership role in building community assets
S Surveyors are particularly well placed to serve their communities and help to address climate change issues at a local level. Small communities are increasingly developing their own assets through energy cooperatives, local shops, community land trusts, biodynamic farms and land-based teaching resources. All require dedicated volunteers, trustees and managers and the ranks of chartered surveyors must be one of the best places to look for individuals to fill these critical and demanding roles. I use a definition of community based on active participation (see Table 1) and relate my own story as an example of how you might develop your own project (see panel). 1 8   J U N E /J U LY 2 0 1 5
r The Wedmore plant comprises 4,000 solar panels
Table 1: Community action Active participation
Passive engagement
Common purpose: to achieve defined goal
Convenience: settle in a place where a shop, school and pub are handy
Mutual support/comfort: active help to and from others
Aesthetic: favour a particular place because it is more attractive than another
Defence and control: to maintain what is achieved
Security: gravitate to a rea that matches your idea of decent folk, decent school, similar tastes
Betterment: personally, collectively and environmentally
Affordability: live somewhere you can afford
Rallying to a leader: through freedom to apply or remove support and to move in or out of the community
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The Somerset experience
A small number of people gave up a large amount of time to help because it is fun to do so
My interest in community energy was awakened through projects where local groups raise funds and develop their own power plant. It is fun to push the boundaries with new systems like community power and community land trusts, and because such projects are noticeable they tend to attract new social entrepreneurs. I also like to focus on projects that are revenue generating and so able to support other initiatives. With friends, I set up a new company and a new cooperative to test a quicker basis of community energy provision. We sourced land, agreed options and leases, dealt with all public consultation and planning application matters, designed, paid for and built the plant. Our cooperative in Wedmore, Somerset, set out to generate as much electricity as possible and as efficiently as possible and so reduce our village’s reliance on power from the National Grid, which is primarily fossil fuel-based. We are achieving this each year by generating about £120,000 worth of clean energy from about a million units of electricity fed into the local
There is overlap, where, for example, families move to a place with a good school, but then immerse themselves actively in the life of that school. But distinguishing between the two aspects is necessary because it is the active participation that is good for us and for our world. While passive engagement is superficially dominant, that is only because it fits so closely with the perverse modern notion that the value of place is defined by house prices and our attention locally is constantly distracted by the need to feed global capitalism.
Active participation is a means to strengthen our communities. We need to take control at the grass roots – to put real force behind a movement to change society and to rebase our economy so that it serves and protects us. This can work through creating stronger bonds with the place we live and with each other, with the purpose of rebuilding the collective, the communal, the commons, the civil and the civic. Local organisations run by voluntary boards and trustees for the benefit of society have the opportunity to set new objectives that maximise benefit, not financial reward. C
power grid. We expect this will save around 450 tonnes of CO2 a year and over the life of the project we expect to give about £600,000 away as grants to local organisations. The plant comprises almost 4,000 solar panels fixed to aluminium frames. The electricity generated is fed into a series of inverters and, via a small substation, into the existing power transmission line that runs alongside the site. The cooperative has nearly 200 members and after our first full year’s trading they are scheduled to achieve the projected 5% return on their ethical investment. A small number of people gave up a large amount of time to help because it is fun to do so. It follows that more people would give up spare time to the greater benefit of their community if they knew what could be achieved and how much they would enjoy it. This is a perfectly natural and fulfilling way to live one’s life but this truth seems rather well hidden. I would like to see more surveyors step up as community leaders.
Robin Mewes is a Director at Community Power Ltd robinmewes@communitypowerltd.co.uk
For advice on setting up schemes, visit www.communitypowerltd.co.uk Related competencies include Sustainabilty
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RICS L A N D JO URN A L
E N E R GY
What are the likely environmental impacts of shale gas and what are the risks compared to other energy sources? Laurence Stamford and Adisa Azapagic investigate
Extracting the evidence
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hale gas extraction has proved to be the most controversial fuel in recent memory. Both sides of the debate have struggled with a lack of facts and a surfeit of rhetoric. The technology introduces a number of risks and will have various impacts that are only just beginning to be quantified. The extraction process is relatively straightforward (see Figure 1). Operators drill down to the shale formation, usually 500m-5,000m underground, and rotate the head into a horizontal position to drill along the shale layer. Fluid is then pumped at high pressure through holes in the piping, fracturing the shale and releasing gas to flow back along the pipe to the surface. The fluid is 95%-98% water, plus sand (2%-5%) and a small percentage of chemical additives (<0.5%) to reduce both friction and the pressure under which the fluid is pumped.
Figure 1 Wells comprise a series of steel pipes
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Figure 2
Comparison of climate change impact of electricity generation
Source: Stamford and Azapagic 2014 A triple-cased design is regarded as best practice in avoiding water contamination by providing multiple barriers extending far below the water table. In the UK, reserves of shale gas are calculated at many times larger than its remaining North Sea gas reserves. Extracting just 10% of the 37,633 billion cubic metres identified in central Britain by the British Geological Survey would satisfy current national gas demand for more than 40 years. However, shale (natural) gas is mostly methane, which is between 28 and 34 times more potent than CO2 as a greenhouse gas (GHG). When wells are drilled, some gas is typically vented or leaked to the atmosphere, which has the potential to cause considerable climate change effects if not properly regulated. Fugitive emissions throughout the many stages of gas processing and transport also contribute to this problem. It is critical that the vast majority of gas
is captured, particularly at the end of the drilling and fracking process. Opponents of fracking often cite much more immediate, local impacts as reasons to avoid drilling. Regulatory violations in the USA have seen instances of water contamination in several states, while in north-west England earthquakes have been induced by fracking activity. In an attempt to add some numbers to the debate, we have compared electricity generation from shale gas to some alternative technologies on a life cycle basis, from cradle to grave.
Environmental impacts The life cycle GHG emissions from North Sea piped gas and liquefied natural gas (LNG), mostly from Qatar, are broadly similar at 400g-500g CO2-eq./kWh (see Figure 2), although additional processing and transportation add to the figure for LNG. Shale gas sits at about 462g CO2-eq./kWh. These numbers are
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Figure 3 Environmental impacts of shale gas compared to alternative options
Source: Stamford and Azapagic 2014 in line with most previous estimates, which have typically found the carbon footprint of shale gas to be between 400g-700g CO2-eq./kWh, depending on the assumptions. The climate change impact of shale gas-fired electricity is less than half that of coal power, which is 1,068g CO2-eq./kWh. In contrast, nuclear power, offshore wind and solar photovoltaics (PV) show figures below 90g CO2-eq./kWh. But things become more complex when considering a broader range of environmental impacts (see Figure 3). Shale gas appears to perform much worse than renewables, nuclear, conventional gas and even coal in terms of: bb acidification bb eutrophication (caused by discharge into waterways of nutrients such as nitrogen and phosphorus) bb photochemical smog (reaction of volatile organic compounds and NOx in the presence of UV light from the sun, to generate oxidants such as ozone) bb terrestrial ecotoxicity (emissions to soil of heavy metals and other substances toxic to insects and plants). In the latter case, this is mainly due to the disposal of drilling waste onto land. This contains naturally occurring heavy metals and radioactive materials which, despite their low concentrations, become considerable in higher quantities. Therefore, the composition needs to be carefully assessed and disposal should take place in proper landfill facilities. On the other hand, low-carbon options are not without their life cycle impacts: solar PV, for instance, is about twice as damaging as shale gas in terms of eutrophication. More dramatically, nuclear power, wind and solar PV are often
several orders of magnitude worse than shale gas in their contribution to: bb depletion of metals and minerals bb human toxicity (a measure of the emissions of toxic compounds, such as particulate matter and arsenic) bb marine and freshwater ecotoxicity (caused by emissions of heavy metals and other substances toxic to marine and freshwater organisms). This makes the overall picture difficult to interpret. In addition, based on these life cycle GHG emissions, burning the 40 years’ worth of shale gas available in central Britain would release 8.1 billion tonnes of CO2 eq. This is 12% more than the UK’s entire legislated carbon budget for the period 2013 to 2027, leaving no place for coal, conventional gas or oil to contribute to electricity, heating or transport. This raises the question of how appropriate it is to incentivise shale gas. The UK government has already announced a halving of the tax on profits (from 62% to 30%) as well as new rules allowing local councils that host fracking sites to keep 100% of the business rates revenue, reportedly worth up to an annual £1.7m per site. On top of this, local communities will receive £100,000 for each well in operation plus 1% of revenues from commercial extraction. These incentives, some would argue, could be used better for promoting low-carbon technologies.
generally outperforming coal and, in a few cases, even renewables. However, in terms of climate change and most other environmental impacts it cannot compete with nuclear or renewables. It must also be remembered that appropriate regulation is the key to minimising the impacts of shale gas. This includes establishing baseline measurements of water composition to monitor for contamination, enforcing green completions and strictly assessing drilling waste for appropriate disposal. Ultimately, decisions on its use should be based on data, analysis and rationality rather than the rhetoric that has dominated the debate thus far. Moreover, climate change and cost are not the only criteria: sustainable development of the sector will require consideration of much broader economic, environmental and social repercussions. C
More information >
Stamford, L. and A. Azapagic (2014). Life cycle environmental impacts of UK shale gas, Applied Energy, Volume 134, 506-518.
Adisa Azapagic is Professor of Sustainable Chemical Engineering and Laurence Stamford is Lecturer in Sustainable Chemical Engineering at the University of Manchester adisa.azapagic@manchester.ac.uk laurence.stamford@manchester.ac.uk
Conclusions For all industrial processes, it is extremely important to bear in mind the entire life cycle rather than just the immediate, operational stage. Based on the available evidence, the life cycle of shale gas has both positive and negative aspects,
Related competencies include Legal/regulatory compliance, Minerals management, Environmental assessment
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RICS L A N D JO URN A L
GREEN ROOFS
Green roof retrofit on a large scale might offer a partial solution to reducing runoff from buildings during heavy rainfall. Sara Wilkinson, Jessica Lamond and David Proverbs discuss the latest research
Runaway success
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eather patterns are changing globally. Australia is getting hotter and drier, and is likely to experience more heavy rainfall patterns and increased flooding (IPCC 2013). In 2012, Queensland floods damaged buildings with remediation costs varying from AUD$9-$20bn. The UK also experienced extreme weather during the winter of 2013-14. Local economies weaken as many businesses fail to recover after flooding, and the real cost is long lasting and difficult to measure. Could green roof retrofit reduce the impact of flash floods and be more cost-effective than upgrading below ground drainage systems? A new RICS research project Modelling the
reduction in stormwater run-off through green roof retrofit in the CBD examines the potential. Unused rooftops constitute 40%-50% of the impermeable areas in cities. Green roofs are a living vegetated alternative, providing environmental and social benefits including improved thermal performance, increased biodiversity, improved air quality, carbon sequestration, and space for people to enjoy. They absorb rainwater by: bb delaying the initial time of runoff bb reducing total runoff bb distributing runoff through a slow release of water. Materials comprise: bb a roof structure bb a waterproof membrane bb insulation
Figure 1: Attributes of extensive and intensive green roofs Extensive green roof
Intensive green roof
Shallow growing medium (<150mm)
Deeper growing medium (>150mm)
Lightweight structure to support roof
Heavier roof structure required to support roof
Cover large expanses of rooftop
Small trees and shrubs feature
Requires minimum maintenance
More maintenance required
Lower capital cost
More expensive
Not usually recreational
More common in tropical climates
Accessible or inaccessible
Accessible or inaccessible
Does not usually require irrigation
Figure 2: Indicative costs of green roof UK Sedum blanket only
£35–£40/m²
Sedum blanket with drainage layer and filter fleece
£45–£65/m²
Sedum blanket on filter fleece and drainage layers, capping layer and vapour barrier
£80-£115/m²
Extra for insulation
£50/m²
Extra for waterproof membrane and vapour barrier
£30-£45/m²
250mm thick growing medium on drainage board, root membranes and insulation; turf
£85–£100/m²
225mm thick growing medium on filter fleece and LDPE drainage core; plug and hydro-seed planting
£50–£60/m²
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Extensive roofs provide space for people, the substrate layer depth varies from 50mm to 200mm and requires artificial irrigation. Intensive roofs require deeper planting mediums exceeding 150mm. Keeping plants alive requires active maintenance and irrigation. Standard soils are too heavy for roof structures and a calculated ratio of aggregate (e.g. shale, vermiculite), organic materials, air and water is used. The correct growing medium is critical and may be challenging due to climatic conditions, particularly excessive seasonal or minimal rainfall (see Figure 1). Modelling reductions in runoff in Brussels through green roof retrofit showed that non green roofs experienced between 62% to 91% runoff whereas intensive green roofs experienced runoff from 15% to 35% and extensive green roofs 19% to 73%. Runoff was much lower in summer, 52% versus 80% in winter for green roofs compared to 70% versus 86% for gravel roofs. During wet winter periods, roofs become saturated and are unable to absorb much additional rainfall (Mentens et al, 2006).
What a surveyor should do
Minimum structural implications for existing buildings
Willmot Dixon, 2010
bb a root barrier protecting the membrane (i.e. made of gravel, impervious concrete, PVC, thermoplastic polyolefin, high-density polyethylene or copper) bb a drainage system bb a filter cloth (non-biodegradable fabric) bb a growing medium (soil) consisting of inorganic matter, organic material (straw, peat, wood, grass, sawdust) and air; and plants.
Retrofit suitability depends on roof type, size and slope. The roof structure and covering influence the type of green roof that may be selected, for example the load-bearing capacity. Roofs on mid-sized and larger commercial buildings in the UK and Australia tend to have concrete slab construction, which may be able to bear green roof loads. A typical load for an extensive green roof structure varies between 1.6kN/m2-2.4kN/m2 and for intensive green roofs 2kN/m2-15kN/m2 (Andras, 2010). Depending on the load bearing capacity of the roof and weight of the growth media, additional structural support may be required.
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Case study: St Bartholomew’s Hospital Redevelopment of St Bartholomew’s Hospital in the City of London was part of a PFI with London Hospital NHS Trust and Skanska. Phase one was completed in 2010 with two green roofs in the FM yard and Energy Centre. Some 1,100m2 of roof area was greened with an extensive sedum blanket with a 300mm substrate depth. The build cost was £106/m2 of which £36/m2 was for the green roof. The drivers were achieving an excellent Healthcare BREEAM rating and the opportunity to re-introduce greenery. Finally, the green roof was essential for planning approval due to a high risk of surface water flooding. The barriers were accommodating both greenery and plant equipment on rooftops and one building was initially considered unviable because of this. Other restrictions were accommodating St Paul’s Cathedral view controls. Stormwater has been successfully attenuated, reducing flood risk and surface runoff in the local area.
The intended use of the roof and size are also issues. For example, is public/user access possible? The roof may be too small to warrant the cost. Typical costs for a 100m2-1,000m2 roofs vary, based on the specification (see Figure 2). Other works may be triggered, such as upgrading access, which may render projects prohibitively expensive. Green roofs require a minimum slope of 2% less than this and the roof will require additional drainage measures to avoid water logging. Additional requirements include good drainage and waterproofing. In some locations, rainwater harvesting and the use of drought or heat-tolerant plants is desirable. Planting should be specified with maintenance in mind; watering and irrigation can add to total costs. Stormwater retention depends on the depth and absorbency of the substrate, exposure, prevailing wind conditions, and the amount of evaporation, which varies according to external temperatures and humidity (Blanc et al, 2012). The surveyor has to identify the additional loads the existing roof may safely bear and evaluate the design to ascertain how much reduction in runoff might be achieved. Orientation affects the amount of exposure to sun, and thus the type of plants that will flourish, for instance where overshadowing cuts access to sunlight. Images © iStock
Finally, the height above ground influences exposure levels to high winds. The longevity of the structure, drainage and waterproofing system is essential because replacement costs are high. Green roofs can last more than 50 years (Koehler, 2008); approximately twice the life cycle of a roof covering such as bituminous felt, which may present a good economic argument. Where an existing roof covering is approaching the end of its useful life, it may be cost effective over a 50 year life cycle to retrofit. The criteria include: bb load bearing capacity bb roof pitch bb water supply for irrigation bb preferred planting bb orientation bb height above ground bb sustainability of components bb maintenance. A minimum five-year maintenance contract is recommended to ensure the correct processes are undertaken and that planting is established. All green roofs have different water retention characteristics depending on their location, orientation and exposure. Stormwater roofs should have enhanced water absorption qualities. Finally, there is the budget, including how much the owner is willing to pay. A whole life cycle costing approach is useful to determine overall costs and may offset higher initial costs. In some cases green roofs add to capital and rental values and environmental ratings.
bb inadequate drainage and blockages caused by substrates leaking bb lack of plant care causes plants to die. Returning to correct defective workmanship is time consuming, disruptive and expensive. Overloading a roof and causing structural defects may render parts, or all, of the building unusable during remedial works. The costs of work is borne either by the owner, contractor or designer depending on the cause. C
More information >
The research examined the potential for city scale retrofit and recommends that modelling can determine the efficacy of incentivising owners to retrofit for stormwater runoff. Any views or comments are welcome. See the full paper at www.rics.org/research
Sara Wilkinson is an Associate Professor in Property and Construction at the University of Technology Sydney sara.wilkinson@uts.edu.au Jessica Lamond is a Senior Research Fellow in the Centre for Floods Communities and Resilience at the University of the West of England, UK jessica.lamond@uwe.ac.uk David Proverbs is Professor and Head of the Department of Architecture and the Built Environment at the University of the West of England, UK david.proverbs@uwe.ac.uk
What are the risk areas? The problems with green roof retrofit cover design, workmanship and maintenance and include: bb access for installation bb installation damage to membrane bb overloading and structural defects
Related competencies include Design and specification, Sustainability
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Fresh thinking Proposed abstraction reforms link water rights to shares and their prices, signalling the availability, scarcity and ecological value of water. Mike Norbury and Dr Louise Bracken consider the options and implications
I In the three years from 2010 to 2012, Met Office data recorded less than 85% of the UK’s long-term average rainfall, triggering hose pipe bans for six million customers as water companies grappled to reduce consumption.
Abstraction Freshwater is one of the world’s most precious yet finite natural resources. At the same time, abstraction 2 4 J U N E /J U LY 2 0 1 5
is fundamental to supporting economic development, environmental quality and people’s health and wellbeing – indirect ecosystem services. In the UK, the use of groundwater has increased by 50% since 1945 and in the South East supplies over 70% of all water, with demand predicted to increase by anything from 12% to 38% by 2021. The problem is that the supply versus demand price signals that represent the scarcity of goods and services in markets to guide in the allocation of resources, are often absent and distorted for water, complicating public sector decision making. Political long-termism is therefore urgently needed to establish a robust and
dynamic abstraction system that caters for the needs of the present, without compromising future generational needs. The disabling dualism of climate change and population
growth will compound already stressed water resources. Most of the UK’s water licensing regime evolved during periods of abundance and industrial growth, and hence is not well suited to the
Image © iStock
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management of water scarcity, flexible and equitable access, or protection of ecological river flows. Many licences were granted under the Water Resources Act 1963 for a delineated area of land-holding (aggregate licence), in perpetuity and with few conditions in their schedule. In theory, this meant that an abstractor could abstract, even when there was no water left in their river channel. Two key pieces of legislation since then, the Water Industry Act 1991, and the Water Act 2003, have sought to introduce efficiency, consolidating the 1963, 1968 and 1971 Water Resources Acts. With this, water rights have evolved from a property right to an individual right, introducing new conditions, including flow cessation conditions (hands-off-flow (HoF), hands-off-level (HoL), the power of an environmental authority to revoke or modify licences without compensation, in certain
instances.
Need for reform The conditions may include ‘serious damage’ covered in inter alias section 27 of the Water Act 2003 or non-use, covered in sections 51 to 56 and sections 61 and 62 of the Water Resources Act 1991. Yet despite these changes, there still remains a strong economic and environmental impetus to reform: bb Environment Agency data shows abstractors only use 45% of their total licensed volume, on average. Concurrently, many applicants in over-licensed catchments remain unable to obtain a licence, while other licensees may not even be abstracting. bb The net economic benefit of reform to abstractors is predicted to increase from £100m to £500m over 25 years, according to the Department for Environment, Food and Rural Affairs (DEFRA). bb Freshwater fauna extinction is occurring at 4% per decade, a rate considerably more rapid than in terrestrial ecosystems, and 11% (1,075) of surface
water bodies and 35% of groundwater bodies in England do not achieve the EU’s good ecological status standard, due to flow modification from abstraction. bb The World Wide Fund for Nature (WWF) has predicted that, at the current rate, the Environment Agency’s restoring sustainable abstraction compensation programme could take 300 years or more to achieve sustainable levels. Given this, two reform proposals are now being pursued by DEFRA; the current system plus and water shares. The heart of the reform is predicated on a phased implementation of a system that links water allocation to actual monitored availability within a watercourse, dynamically changing allocations when predicted flows change. At present it remains unclear which reform will be implemented. The Institution of Civil Engineers (ICE) has voiced its support for the water shares
approach. Michael Norton, Chair of its Expert Water Panel says: “The water shares option appears to have trading at the centre of its proposal, a concept we promoted in our 2012 State of the nation: water report.” If effectively implemented, shares would create a sense of mutual responsibility to preserve water, the ICE adds. Hydrodynamic catchment water allocations would vary the overall volume of all shares, and therefore each individual share, with prevailing monitored river flows, groundwater levels and abstractor updates issued fortnightly, DEFRA suggests. Although the WWF voiced concerns that shares may encourage a ‘maxing out’ of licence capacities, its freshwater expert Dr Rose O’Neill says: “The government must put protecting England’s natural heritage at the heart of its Water Bill.”
Pollution Moreover, while DEFRA has stated that it wants to value discharges through reform,
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n many discharges pollute, rather than enhance river water quality. In the past nine years, 1,000 pollution incidents occurred from water company wastewater discharges, one third of which resulted in fines, and the remainder in cautions. Current and predicted future variability in water availability may foster water stewarding and collaboration among abstractors at catchment level, including winter high-flow storage. Many intrinsically know the value that water confers on land, particularly surveyors. Take for instance, an asparagus farm in East Anglia that requires irrigation. Remove the irrigation right and the number of crops that can be grown will be limited. Turnover is likely to be impacted. Land that is currently worth £400/ha could reduce to as little as £80/ha if the right to water is removed entirely. While this is a draconian and unlikely occurrence, it shows what is at stake. Hugh Fell, managing partner at George F White, spells out the wider implications of the financial reductions (vide supra): “Once a monetary value is placed on the resource, and people begin to understand its true worth, it is likely that the commercial and financial sectors will sit up and take far more notice of this valuable resource.” Understanding the facets of both reform options is fundamental, therefore.
Water shares Under the water shares reform, abstractors would hold a share in the water resource, rather than absolute amount. These shares could also be traded where there is pre-approval of low risk 2 6 J U N E /J U LY 2 0 1 5
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trades. Above a set regulatory minimum, which preserves the most basic life-sustaining ecological flows, the regulator would portion an amount of ‘available resource’, with abstractors holding different reliabilities. The issuance of new share(s), and reliabilities, is likely to be based on the respective past licence volume and sector. Water companies and power stations are the catchment hegemons because of their statutory supply duties. Farmers, growers and fish farms are often the first ‘go-to’ for drought licence restrictions. Concerns of reform on animal welfare were recently raised during the consultation, given the potential for greater variability in water allocations. Under the current system plus, abstractors HoFs and HoLs will be converted into gradational controls. During a recent conference, a new abstraction incentive mechanism concept was raised, where price was linked to environmental flow indicators, with high-flows being cheap and low-flows expensive. The gradational control would not only mean reducing real-time prescribed abstraction volumes as flows decrease, stopping at the regulatory minimum, but also an increase in cost. Both water shares and the current system plus will see the removal of time limits from abstraction licences, an improvement between abstraction charge and use, and a phased removal of the environmental improvement unit charge. This is one part of the system of charging abstractors for their licence, analogous to a money pot, where licence holders that have their licence varied or
“ The antiquated system of
business as usual may not meet the needs of the present and future generations revoked are compensated for their loss. The licensing regime will transition to a permitting system. The legislative process began in January with the new regime scheduled to go live in 2020. Before implementation, 2019 will be a trial year where the water shares approach will be tested in locations where there is a clear economic and environmental case – what DEFRA calls ‘enhanced catchments’, although little detail has been given. There is a clear case for reform. The antiquated system of business as usual may not meet the needs of the present and future generations, nor will it address the economic inefficiencies of redundant non-used licences while others seek water rights. Given the bloating of Whitehall and shrinking of local government, particularly the Environment Agency, crucial administration questions are posed for the new regime, i.e. does the agency have a suitable administrative capacity? Numerous byelaws will also require repeal if reform
is to be passed. For instance, the Northumbrian Water Act 1981 still permits groundwater abstractors to take up to 227m3 day without a licence, whereas elsewhere in the UK anything over 20m3 day requires a licence (Water Act 2003, section 6).
Rural surveyors One of the key challenges confronting modern rural surveyors is quantifying the value which natural resources confer. The zeitgeist of ecosystem services and total economics of ecosystems and biodiversity will continue to drive accountancy of natural resource during valuation. Water is no exception. As reform flows on, it is likely that water rights will be imbued in the public commons versus private commodity debate. What ebbs will rest on the effectiveness and credibility of the reform proposal. The current Irish water meter protests may be a harbinger for abstraction reform impacts in the UK, if they are not effectively delivered. Rivers pervade our common history. C
Mike Norbury is a research associate in the Department of Geography and Planning at Liverpool University and at Waterco Consultants m.norbury@liverpool.ac.uk Louise Bracken is a reader in the Department of Geography at Durham University l.j.bracken@durham.ac.uk
Related competencies include Planning, Sustainability
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To a d ve r t i s e c o n t a c t C h a r l o tte Tu rner +4 4 ( 0 ) 2 0 7 8 7 1 5 7 3 4 or c harlot te@wearesu nd a y.co m J U N E /J U LY 2 0 1 5 2 7
RICS Rural Conference 2015 18 June 2015, Cirencester After the huge success of last yearâ&#x20AC;&#x2122;s programme, our annual flagship rural conference returns in 2015 with an impressive speaker line up and a range of essential updates for rural professionals. There has been a number of crucial developments in the rural landscape over the past 12 months and these will no doubt impact significantly on the work of a rural surveyor. This conference will delve into those challenges and will also explore the GIS-based Map of Agriculture project which highlights production yields and financial returns on worldwide agricultural activities.
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Book your place today: rics.org/ruralconference