While a desktop environmental search may not directly relate to contaminated land, it serves as a valuable tool for efficiently organising and retrieving environmental data and reports related to land contamination assessments.
In today’s environmentally conscious era, the mention of “contaminated land” can instantly trigger caution among prospective property buyers. Conveyancing experts shed light on the growing apprehension surrounding this issue, revealing how it affects both individual buyers and developers. With a rising emphasis on sustainable living and the desire for homegrown produce, the significance of untainted land has become a paramount factor in property transactions.
What Is Contaminated Land?
In simple terms, contaminated land refers to land that has been polluted by hazardous substances, chemicals, or pollutants, posing a potential risk to human health and the environment. This contamination can occur due to various activities, such as industrial processes, improper waste disposal, or historical land uses.
Contaminated land can have hidden dangers that are not easily visible. Even if a site appears clean and unaffected, there may be underlying contamination from past activities. This is why it’s essential to conduct thorough assessments and investigations to identify potential contamination risks.
How to Deal With Contaminated Land
To put it simply, contaminated land involves three key elements: a source, pathway, and receptor. For instance, there might be a historic underground tank (source) that is currently leaking into the surrounding soil (pathway) and rising to the surface where people walk (receptor).
Visual inspections alone cannot always identify contamination since not all contaminants are visible to the naked eye. The land might have been previously used for activities that could have caused contamination, such as a former chemical works or in proximity to a landfill site. It is difficult to establish this solely through visual inspection.
Buyers of commercial property often believe that environmental issues are not their concern since they did not cause the contamination. However, according to Part IIA of the Environmental Protection Act 1990, liability for remediation of contaminated land can extend to the “appropriate person.” This includes individuals who “cause or knowingly permit contaminated substances to be in, on, or under the land” or those who are the “owner or occupier of contaminated land” (when the original polluter cannot be identified). It is worth noting that liability is not limited to landowners and can also apply to tenants.
What are the risks of purchasing contaminated land?
When it comes to managing the risk of liability for contaminated land, it is crucial to understand the legal aspects involved. Purchasing or leasing a potentially contaminated property requires careful consideration and proactive measures. One such measure is conducting a desktop environmental search, which not only provides valuable information about the property’s history, maps, and other available resources but also helps assess the likelihood of contamination risks.
Within the realm of contaminated land, legal obligations and responsibilities come into play. If you decide to purchase contaminated land, it is essential to be aware of the legal implications and who bears the responsibility for addressing contamination issues. The Contaminated Land Legal Indemnity Insurance Policy is particularly important as this offers financial protection. This policy also provides coverage against the costs associated with fixing the contamination or any potential legal claims that may arise due to the land’s condition.
By being well-informed about the legal aspects surrounding contaminated land, prospective buyers or lessees can make more informed decisions and protect themselves from potential liabilities. Conducting careful work, including desktop environmental searches can go a long way in safeguarding against unforeseen risks and ensuring a smooth and secure transaction.
What is a desktop environmental search?
A desktop environmental search does not require intrusive site investigations. Instead, it generates a report and certificate from an environmental search provider. The report will indicate if the property has “passed” the contamination risk assessment, requires “further investigation,” or has “failed.”
A “pass” certificate suggests a negligible risk of contamination. If further investigation is needed, additional inquiries may be necessary with the vendor or local authority. For example, if the property received planning permission with a condition requiring remediation work, evidence of completed remediation and discharge of the planning condition can result in an updated “pass” status. If the search produces a “fail,” a specialist intrusive environmental survey is typically required before proceeding. While environmental indemnity insurance is an option, obtaining it becomes challenging if the search reveals a significant risk of harm.
Commercial Property Transactions
If you would like to discuss contaminated land or other commercial property issues, please don’t hesitate to contact our commercial property team at 01642 356500 or 0191 2322574. Or if you would like to discuss other Health and Safety issues, please contact Mark Stouph at 01642 873757 or mstouph@jacksons-law.com
