Environmental Risks And Liabilities, Contaminated Land And Surveys Notes

ADVANCED PROPERTY LAW AND PRACTICE WORKSHOP 1 Revision Notes: Environmental Risks & Liabilities --- Contaminated Land + Surveys ENVIRONMENTAL LAW & CONTAMINATED LAND !Environmental issues have gradually become a large part of our socio-economic consciousness and in recent times there have been regulations put in place to control these issues. ! Always keep in mind the core principles of environmental law: ! sustainable development ! ! * * 'the polluter pays' Differences Bet ween a Property Lawyer and Environmental Law Specialist The Difference Between a Property Lawyer and an Environmental Law Specialist The Property Lawyer * deals with all aspects of property law! * but, needs a basic knowledge of environmental law Environmental Specialist * deals exclusively with environmental law The contaminated land regime is in practice dealt through the imposition of planning conditions so the regime is as much the forte of a planning specialist than anyone else. ! Environmental Liability !Owners and occupiers may find themselves on the wrong side of environmental law, usually at great financial and practical cost, through: ! ! ! ! ! Civil Liability * this is usually in nuisance that is suffered by the claimant through migrating pollution from the contaminating land * the person who brought the contamination onto the claimant's land would be liable for any damage that was reasonably foreseeable as a result of the pollutants escaping (this could occur even if the owner of the contaminated land had taken steps to minimise this) Criminal Liability * s34 Environmental Protection Act 1990 --- imposes a duty of care to prevent the escape of wastes under your control * breaching this can result in a fine and paying the cost of cleaning up the contamination Statutory Liability * ss78A-Y EPA 1990 --- local authorities have a duty to identify contaminated sites and serve remediation notices on the 'appropriate person' to clean up the land Planning Constraints & Conditions * this is a common and effective method of apportioning liability for cleaning up sites, but this is, of course, only effective if planning permission is actually implemented by the applicant Environmental Risk Management !Enquires of the Seller Enquires of the Local Authority (using Con 29) !Tools for limiting the buyers potential liability include: ! ! ! ! ! Desktop Survey Warranties these are specific promises (which would be hotly negotiated) from the seller regarding environmental issues, a breach of which would allow the buyer to claim damages for breach of contract Indemnities these essentially provide that if any liability were to arise from an environmental issue that the seller will cover the cost of that (or vice versa) Insurance this is a vital tool (for both the possibly liable buyer and seller) that often covers on and off site clean up costs that are required by law, as well as property damage however, most insurers will typically exclude cover for losses arising from known pollution conditions, although this can be negotiated Agreement on this acts as a middle ground for apportioning liability for the costs of Liabilities remediation between the buyer and the seller and will basically state what each party is wiling to pay for if such costs rise ! The Contaminated Land Regime ! This is covered by ss78A-Y (Pt II(A)) Environmental Protection Act (EPA) 1990: ! Local Authority's is to survey and identify sites in their area which, for historical reasons, Duty might be contaminated ! if a contaminated site is identified the authority must then consider if there is any pollution linkage if there is, then the local authority (or the Environment Agency) must serve a remediation notice on the 'appropriate person' requiring the land to be cleaned up, and also notify any owners and occupiers (s78B) ! that appropriate persons is then liable for the costs of the clean up work ("remediation") Important! contaminated land is predominately dealt with voluntarily or through the planning regime via the imposition of a planning permission condition It's very expensive so needs be properly planned for way before the contract is even considered. Law Society Warning Card ! ! For good practice, a solicitor must, in every transaction including purchases, mortgages or leases, consider whether contamination is an issue by: 1. 2. 3. 4. 5. 6. advising the client of potential liabilities associated with contaminated land making specific enquires of the seller making enquiries of statutory and regulatory bodies undertaking an independent site history investigation, e.g. obtaining site reports from a commercial company advise an independent full site investigation consider the use of contractual protections and the use of exclusion tests 

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