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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Environmental Protection Act 1990, Part IIA applies to all land, whether:
It can affect:
The legislation is retrospective and covers both existing and future contamination (now including radioactivity). Its main objective is to identify and require remediation of contaminated land where there is an unacceptable risk to human health or the wider environment.
Environmental Protection Act 1990, Part IIA recognises that harm to health and the environment arises from contaminating substances moving along a 'pathway' to where they can cause damage to a 'receptor'.
Local authorities must inspect and identify seriously contaminated sites. They can issue notices requiring action to remediate contamination if there is no voluntary agreement to do so. In certain cases ('Special Sites') responsibility for enforcement lies with the Environment Agency. A negative reply to the standard local authority enquiries from the local authority may merely mean the site has not been inspected. It does not necessarily mean there is no problem.
Compliance costs may exceed the value of the property. Liability falls primarily on those who 'cause or knowingly permit' contamination (a 'Class A' person). If the authority cannot identify a Class A person, liability falls on a 'Class B' person, the current owner, or occupier of the land. Class B persons include lenders in possession. There are complex exclusion provisions for transferring liability from one party to another. Some exclusions apply only on the transfer of land or the grant of a lease. The applicability of any relevant exclusion needs to be considered before entering such transactions.
Environmental Protection Act 1990, Part IIA is not the only way that land contamination is tackled. Planning and building control also deals with it, along with urban regeneration initiatives, voluntary action by landowners and industry, and waste management controls.
The Green Card Warning
The Law Society has issued a 'green card warning' to property lawyers, stating that contamination must be considered as a potential issue in 'every' transaction.
In all purchases, mortgages and leases, solicitors should:
advise the client of potential liabilities associated with contaminated land - generally clients should be advised of the possibility and consequences of acquiring interests in contaminated land and the steps that can be taken to assess the risks
make specific enquiries of the seller - in all commercial cases, and if contamination is considered likely to be a risk in residential cases (eg redevelopment of brownfield land)
make enquiries of statutory and regulatory bodies
undertake independent site history investigation - (eg obtaining site report from a commercial company)
in commercial cases, if there is a likelihood that the site is contaminated:
advise independent full site investigation, and
consider use of contractual protections and the use of exclusion tests. This may involve specific disclosure of known defects, possibly coupled with price reduction, requirements on seller to remediate before completion, and in complex cases the use of warranties and indemnities
If there are unresolved problems consider:
advising withdrawal, and noting advice from the external consultant
advising insurance (increasingly obtainable for costs of remediation of undetected contamination and any shortfall in value because of undisclosed problems)
Additional specific steps might be required in the following cases:
leases - consider whether the usual repair and statutory compliance clauses transfer remediation liability to tenant, and advise
mortgages - advise lender, if enquiries reveal potential for or existence of contamination, and seek instructions. In enforcement cases, consider appointment of receivers, rather than steps resulting in lender becoming mortgagee in possession, and so treated as a Class B person
share sales and asset purchases - consider recommending the obtaining of specialist technical advice on potential liabilities, use of detailed enquiries, warranties and indemnities
New model planning conditions
On 30 May 2008, DCLG published a set of model conditions for use by local planning authorities (LPAs) in England in connection with the development of contaminated land.
The developer must arrange a site investigation and risk assessment to assess the nature and extent of any contamination on the site, including contamination that may have originated from elsewhere. A report must be submitted with an appraisal of remedial options, and a proposal of the preferred option(s) covering:
a survey of the extent, scale and nature of contamination
an assessment of the potential risks to:
existing or proposed buildings
crops, livestock, pets, woodland and service lines and pipes
groundwater and surface water
ecological systems; archaeological sites; and ancient monuments
The developer must prepare a detailed remediation scheme to bring the site to a condition suitable for the intended use, by removing unacceptable risks to human health, buildings and other property and the natural and historical environment. The scheme must include:
all works to be undertaken
the proposed remediation objectives and remediation criteria
a timetable of works, and
the site management procedures
The objective is to ensure that the site will not qualify as contaminated land under Environmental Protection Act 1990, Part IIA in relation to the intended use of the land after remediation.
Before development starts, remediation work must be carried out in accordance with the scheme. The developer must notify the LPA in writing two weeks before the remediation work starts, and arrange for a verification report to be submitted to the LPA for approval following completion of the work. The purpose of the verification report (referred to in PPS 23 as a 'validation report') is to demonstrate that the remediation scheme has been effective.
If unexpected contamination is found after development has begun, development of the affected part of the site must stop. The developer must notify the LPA and go through the steps set out above before any further development can take place.
Developers will also be required to put in place a long term maintenance and monitoring scheme.
The Government has said it wants over 60% of new homes to be built on brownfield land. Clean-up of those sites is most likely to be done through conditions in planning permissions rather than remediation under the contaminated land regime. The model planning conditions will therefore play an important role in both the redevelopment of brownfield land and in meeting housing targets.
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