Possible land contamination – what do I do?
Land contamination is almost always associated with past industrial land uses which leave behind contaminants in soil or water that pose unacceptable levels of risk to human health or the environment.
Contamination can be a big problem for existing landowners (particularly those who bought prior to 2000); causing property devaluation and major upheaval whilst land is cleared. You could even be asked to pay for land treatment to ensure any contamination is treated to the required standard. For developers and buyers, discovery of contamination can lead to planning conditions being imposed requiring remediation of the land, which can delay development, raise costs and ultimately make building schemes financially unviable.
The statutory regime that governs contaminated land is in Part 2A of the Environmental Protection Act 1990 (introduced in 2000). It imposes a duty on local authorities to identify contaminated land and require the appropriate person to clean it up. As a result, each council holds a contaminated land register.
What action can you take if you own contaminated land?
Existing landowners who suspect their site is contaminated, should firstly contact their local authority to see if their land is already on the contamination register. They should also investigate any purchase information such as a NHBC (National House-Building Council) certificate which may contain a warranty against contamination. Lastly, they may wish to employ an environmental consultant to undertake a site investigation and instruct a solicitor to obtain advice on liability.
Buyers and developers should ensure they undertake Environmental searches during the conveyancing process. These searches contain historical maps showing past land use and will identify land that is registered as contaminated or could be at risk of contamination. A solicitor can advise on indemnity insurance and potential liability.
Who is financially responsible for contaminated land remedy?
So, who pays for the clean-up once contamination is identified? The simple answer is the polluter pays – this means the person who caused or knowingly permitted the pollution – defined as a “Class A” appropriate person. In practice these parties can be difficult to trace or may no longer exist. In these cases, the liability passes to “Class B” appropriate persons – these are the current owners and occupiers.
Exclusion from liability and apportionment of liability is available for some “Class A” and “Class B” appropriate persons. Exclusion of a “Class A” person can for example occur where a subsequent owner has introduced pathways or receptors or have omitted to maintain a system that is intended to reduce the risk from the contaminant.
If you are not eligible for exclusion from liability local authorities can still waive or apportion remediation costs if they are likely to exceed the land value. Costs can also be waived where an appropriate person can demonstrate that they took reasonable steps to establish the presence of contaminants and could not reasonably be expected to be aware of their presence, and the local authority considers it reasonable that the person should not bear the whole cost of remediation.
Whether you are buying land for development which may be contaminated or you are an existing homeowner with concerns about land under your property; it is important to receive specialist legal advice as early as possible.
If you are concerned about environmental liabilities in a property transaction that involves contaminated land, please contact Jo Bryan – firstname.lastname@example.org