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Environmental Issues Notes

LPC Law Notes > Commercial Property Notes

This is an extract of our Environmental Issues document, which we sell as part of our Commercial Property Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Commercial Property Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Elective: Commercial Property

Commercial Property: Environment

1. Preliminary Environmental Issues Buying a site to develop - necessary environmental steps for buyer:

1. Searches and Enquires [i.e. CON29 etc] -
buyer should commission a 'desktop study' Phase I Report Phase II Report

Including site visit Including full testing of soil / underground waters etc.

2. Buyer should limit his liability against existing issues identified :

1. Warranties

2. Indemnities

3. Agreement on liabilities

4. Environmental insurance Alternatives:

1. Price reduction

2. Carve out land - only purchase non-risky section

3. Impose positive obligations on each party [e.g. clean up land before sale]

3. Make enquiries to the seller

What environmental issues should the client be advised on when buying a property?

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What is the environmental damage - be able to identify the problem: Brown land site - previously used - possibility of contamination: Potential environmental consequences:

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Burning waste

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Discharge of dioxins

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Contaminated soil

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Residents near by?

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Dust / noise / smells / vibrations of development work on site

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Advise the client on statutory controls that are at risk of being breached: EU level: Integrated

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General principles Pollution Prevention and

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Use best available techniques Control [IPPC] Regulation

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E.g. avoid waste / use energy efficiently Pollution Prevention and Control Act 1999 1

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UK law implementing the EU regulation [IPPC]

Elective: Commercial Property Water Resources Act 1991

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S.85 Offence to pollute water S.24: offence to abstract water NB. Water is very difficult to control

Environment Protection Act 1990

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S.33 Offence to deal with / permit waste or cause harm or pollution "Waste" has a wide definition - includes residues from industrial processes; oils; batteries etc. S.34 Imposes a general Duty of Care not to pollute. This includes preventing waste from escaping.

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Environmental Damage (Prevention and Remediation) Regulations 2009 [Textbook p.88]

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Duty of care to take preventative measures in the face of imminent environmental harm. Based on "Polluter pays" principle Reg. 13: Take all practicable steps to prevent environmental damage and notify relevant authority of all relevant details Reg. 14: Prevent further environmental damage by taking all practicable steps necessary. Failure to comply with 13 and 14 is an OFFENCE Not retrospective

Climate change Act 2008

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Introduced the Carbon Reduction Commitment Scheme. Large organisations must abide by the mandatory scheme to reduce energy usage.

Other

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SDLT incentives Carbon reduction committee Codes and guidance = "sustainable development / green leases Common law - Rylands v Fletcher

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Advise client on possible defences that may apply: PERMITS

Environment Permitting (England and Wales) Regulation 2010 [EPR]

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Client gets a permit for the operation / running of the property If client is operating within the terms of a permit - then this is a viable defence against any environmental offence.

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Reg 12 of the EPR 2010: If the operation comes within the regulation it is unlawful for it to operate without an environmental permit - the permit will have conditions attached under which the business must operate- so it is not just getting a permit before you start your business operating but you must continue to operate within the terms of the permit if you are not to commit an offence

Buy the full version of these notes or essay plans and more in our Commercial Property Notes.