Before purchasing a property, your solicitor will conduct various property searches against the property you seek to buy as part of their due diligence.
An environmental data search (or ‘desktop search’) is one of the searches that is often carried out. This search can be used to establish the risk of land being contaminated (amongst other matters), by collating information from regulatory bodies, floodplain data and a review of current and historic land uses. It is important to note however that this search does not include a site visit nor does it involve testing soil or groundwater samples.
If the search result indicates a potential risk associated with the property then there will be recommendations made, such as to undertake more intrusive surveys.
What liability could I have if the land is deemed contaminated?
Under the statutory contaminated land regime, local authorities have an obligation to inspect properties within their boundaries in order to identify any contaminated land.
The mere presence of contaminants on a piece of land/site does not necessarily mean it will qualify as ‘contaminated land’ for the purposes of the regime. Rather, contaminated land is defined as any land which, by reason of substances in, on or under the land, appears to be in such a condition that either:
a) significant harm to the environment is being caused or there is a significant possibility of such harm being caused. (This includes for example significant harm to human health through death, life-threatening diseases, serious injury, birth defects and impairment of reproductive functions.)
b) significant pollution of controlled waters is being caused, or there is a significant possibility of such harm being caused.
Land polluted by heavy metals, chemical substances, radioactive substances, asbestos, oils and tars (amongst other contaminants) can cause land to become contaminated.
If the land is identified as contaminated land, the enforcing authority may require the contamination to be remedied.
The enforcing authority will serve a remediation notice on those who are responsible for the contamination requiring them to remediate it so that the land is suitable for use. These people are those who caused or knowingly permitted the contaminating substances to be present in or on the land. For a person to ‘knowingly permit’ contamination, they must have known about the contamination and had the power to do something about it. This means that the person must have had the ability to take steps to prevent or reasonably remove the contamination, and had reasonable opportunity to do so.
The enforcing authority does not need to prove that the person who caused the contamination intended to cause it or was otherwise at fault in order to require them to remediate the contamination. This is referred to as ‘strict liability.’ The regime does not make it a criminal offence to contaminate land. Rather the purpose of the regime is to clean up land, not punish those who caused the contamination.
If a local authority determines that land is contaminated, and the party who caused or knowingly permitted the contamination cannot be found, liability then passes to the current owner or occupier of the site/land regardless of whether the current owner/occupier was aware of the contamination. The remediation notice is served on them instead. There is ‘retrospective liability.’ As such, an owner/occupier of land that is contaminated can be liable for the remediation of contamination that was caused decades ago by a previous owner/occupier.
Though the enforcing authority can only require remediation that is reasonable, (considering the costs of the works and the seriousness of the harm or of the water pollution), it can still be an expensive process. It is therefore important to assess the risk of the land being contaminated before committing to buy a property. It is recommended that you instruct an environmental surveyor to review any reports that are supplied and to advise on the extent of the liabilities that will be associated with ownership of the property as a consequence of any contamination.
Separate to the contaminated land regime is the planning regime. If you apply for planning permission to redevelop a site that is contaminated, the local planning authority may impose conditions in the planning permission requiring remediation before the development can go ahead. Compliance with these conditions could again be very expensive.
In addition to statute, contamination can also give rise to liability to third parties through nuisance. If another property is affected by contamination emanating from your property you will be liable to them for their losses. It does not matter whether you were the person that caused the pollution in the first place.
Since ownership of contaminated land carries risks not only in respect of the actual contaminant within the land, but also in terms of liability and future cost, your solicitor will advise you on ways to manage or mitigate your risk if you proceed with a purchase. For example it may be possible to obtain an indemnity insurance policy to cover liabilities associated with contamination.
If you own potentially contaminated land or are looking for assistance with the sale or acquisition of property/land or have concerns about land contamination, contact one of our specialists today on 0845 287 0939 or get in touch by email for comprehensive and up-to-date legal advice.