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LPC Law Notes Commercial Property Notes

Environmental Issues Notes

Updated Environmental Issues Notes

Commercial Property Notes

Commercial Property

Approximately 50 pages

A collection of the best LPC notes the Oxbridge Notes editorial team could find after having looked through dozens of applications. This single-author set of LPC notes is fully updated for recent exams.

The author of these notes earned a high 1.1/distinction at the OXILP....

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The following is a more accessible 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:

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

Including site visit

Phase II Report

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?

  • What is the environmental damage – be able to identify the problem:

Brown land site – previously used – possibility of contamination:

Potential environmental consequences:

  • Burning waste

  • Discharge of dioxins

  • Contaminated soil

  • Residents near by?

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

  • Advise the client on statutory controls that are at risk of being breached:

EU level: Integrated Pollution Prevention and Control [IPPC] Regulation

  • General principles

  • Use best available techniques

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

  • UK law implementing the EU regulation [IPPC]
Water Resources Act 1991

  • S.85 Offence to pollute water

  • S.24: offence to abstract water

NB. Water is very difficult to control
Environment Protection Act 1990

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

  • 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

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

  • SDLT incentives

  • Carbon reduction committee

  • Codes and guidance = “sustainable development / green leases

  • Common law – Rylands v Fletcher

  • Advise client on possible defences that may apply: PERMITS

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

  • 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.

  • Reg 12 of the EPR 2010: If the operation comes within the regulation it is unlawful for it to operate without an environmentalpermit - 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

  • Regulator = usually Environment Agency [Part A1 – for significant emissions] of Local Authority [Part A2 / Part B – for less significant emissions])

  • Grant of a permit if certain criteria are met

  • The schedules of the regulation set out the various regimes:

    • Schedule 13 – waste incineration.

    • Schedule 10: landfill

    • Schedule 16: asbestos

    • Schedule 21: water discharge activities

  • Permit will usually impose conditions =

    • Use best available techniques to dispose of waste [following EU IPPC]

    • Employ a certain amount of people

    • Complete in a certain time frame.

    • Remediation [i.e. pay to clean up the site]

  • All information is within the public domain

  • What are the potential consequences of failure to comply with the environmental permit?

EPA can issue the following:

  • Permit taken away and/ or other conditions imposed

  • Revocation notice [reg 22]

  • Enforcement notice [reg 36]

  • Suspension notice, for serious pollution risks [reg 37]

  • Remediation notice [reg 57]

  • Information requirement notice [reg 60]

  • Fines

  • Civil sanctions – e.g. pay compensation (under the Civil Sanctions Act)

  • Imprisonment [if breach is quite substantial].

Environmental Impact Assessment

  • Town and Country Planning (Environmental Impact Assessment) Regulations 1999

  • Purpose = to ensure that environmental factors are taken into account when developing land.

  • Planning permission will not be granted for the development without consideration of environmental information.

  • Circular 02/99: gives details about the assessment. Para 9: “the assessment is a means of drawing together, in a systematic way, an assessment of a project’s likely significant environmental effects.

  • Carry out before planning permission application

When is EIA needed?

  • Reg. 3: Prohibits granting for of planning permission for Schedule 1 and

Schedule 2[on certain conditions only] unless EIA procedure has been

followed.

  • Schedule 1: EIA is compulsory! [e.g. more than 100 tonnes per day]

  • Schedule 2 = is the development likely to have significant environmental effects and / or is it in a sensitive area, or size / nature / location of the development means that EIA is required! There are various thresholds to apply to the size of the site and the volume of the operation.

  • The Local Planning Authority or Environmental Agency decides whether EIA is necessary. They will provide a screening opinion – “Would this particular development be likely to have a significant impact on the environment” ?

  • Information must be provided by the developer in an “Environmental Statement” (ES) - See Circular Para.21.

  • Environmental statement is...

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