Before purchasing a property, your solicitor will conduct various property searches as part of their due diligence.
One of the most common searches conducted is an environmental data search, also known as a desktop search. This search aims to assess the risk of land contamination and other relevant factors by gathering information from regulatory bodies, floodplain data, and reviewing current and historical land uses. It’s important to understand that this search does not involve a site visit or testing of soil or groundwater samples.
If the search results suggest a potential risk associated with the property, further recommendations may be made, such as conducting more detailed surveys.
Am I liable if the land is deemed contaminated?
Remediation:
Under the statutory contaminated land regime, local authorities are mandated to inspect properties within their jurisdiction to identify any contaminated land.
The mere presence of contaminants on a piece of land or site does not automatically qualify it as ‘contaminated land’ under the regime. Contaminated land is defined as any land that, due to substances in, on, or under the land, appears to be in a condition where:
a) significant harm to the environment is occurring or there is a significant possibility of such harm occurring (including significant harm to human health through death, life-threatening diseases, serious injury, birth defects, and impairment of reproductive functions);
or
b) significant pollution of controlled waters is occurring or there is a significant possibility of such pollution occurring.
Land can become contaminated by heavy metals, chemical substances, radioactive substances, asbestos, oils, tars, and other contaminants.
If land is identified as contaminated, the enforcing authority may require the contamination to be remedied.
The enforcing authority will issue a remediation notice to those responsible for the contamination, requiring them to remediate it so that the land is suitable for use. Responsible parties are those who caused or knowingly permitted the contaminating substances to be present in or on the land. To ‘knowingly permit’ contamination, a person must have been aware of the contamination and had the power to take action. This means they must have had the ability to prevent or reasonably remove the contamination, with a 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 to require remediation. This is referred to as ‘strict liability.’ The regime’s purpose is to clean up land, not punish those responsible for contamination.
If a local authority determines that land is contaminated and cannot find the party responsible, liability then falls to the current owner or occupier of the site or land, regardless of their awareness of the contamination. The remediation notice is then served on them, constituting ‘retrospective liability.’ Therefore, a current owner or occupier can be liable for remediating contamination caused decades ago by a previous owner or occupier.
While the enforcing authority can only require reasonable remediation considering the costs and seriousness of the harm or water pollution, it can still be an expensive process. Therefore, it is crucial to assess the risk of land contamination before committing to buy a property. It is recommended to engage an environmental surveyor to review any reports and advise on the extent of liabilities associated with owning the property due to contamination.
Planning Permission:
Apart from the contaminated land regime, there’s the planning regime to consider. When applying for planning permission to redevelop a contaminated site, the local planning authority may include conditions in the permission requiring remediation before development proceeds. Meeting these conditions could be costly.
Nuisance:
In addition to statutory considerations, contamination can lead to liability through nuisance to third parties. If contamination from your property affects another property, you could be liable for their losses, regardless of whether you caused the pollution.
Contact Our Property Solicitors Today
Owning contaminated land carries risks not only related to the contaminants on the land but also liability and future costs. Your solicitor will advise you on ways to manage or mitigate these risks if you proceed with a purchase. For example, it may be possible to obtain indemnity insurance to cover liabilities associated with contamination.
If you own potentially contaminated land, require assistance with property/land sale or acquisition, or have concerns about land contamination, contact one of our property specialists today.
