land assessment to support solicitors

Contaminated Land assessment in support of the legal profession

Solicitors have a need to be aware of the requirements of Part IIA of the Environmental Protection Act 1990 and how it might impact on the sale of land or property and the transfer of potential liabilities to their clients as purchasers. To ensure their clients are provided with accurate guidance it is highly recommended that professional support is sought from a consultancy specialising in land quality assessments such as ESI.  

Environmental liabilities may arise; ESI can provide specialist support and assistance

to the legal profession to aid the limitation of liabilities now or in the future.

ESI can provide the legal profession with conclusive answers through a range of land quality assessments designed to meet standard scenarios or complex individual requirements. Solicitors are then able to exercise their professional judgement to determine the applicability of the advice to each matter in which they are involved and, where necessary, they can suggest to the client obtaining further specialist advice from ESI.

Contaminated Land legislation

The contaminated land regime was brought into effect in England on 1 April 2000 and applies to all land, whether residential, commercial, industrial or agricultural. The legislation can affect lenders, developers, owners and occupiers. The legislation is contained in Part IIA, of the Environmental Protection Act 1990 and in the regulations and statutory guidance issued under it. The act covers existing and future contamination issues. Local authorities have a duty to inspect and identify seriously contaminated sites and issue remediation notices requiring action to remediate contamination, in the absence of a voluntary agreement to do so.

Compliance can be costly, and may result in expenditure which could exceed the value of the property.

Liability to resolve contamination falls primarily on those who "cause or knowingly permit" contamination however if the local authority cannot identify who caused the contamination liability may fall on the current owner, or occupier of the land. The liability could in certain circumstances fall on lenders in possession.

Whilst conducting conveyancing transactions in purchases, mortgages and leases, it is recommended that solicitors should:

1. Advise the client of potential liabilities associated with contaminated land

ESI can provide a Phase 1 land assessment report to identify any risks.

2. Make specific enquiries of the seller in all commercial cases and, if contamination is considered likely to be a risk, in residential cases such as in the redevelopment of brownfield land.

ESI can support the process of making informed enquiries during land quality assessments. The consultancy team will highlight particular areas that may require further investigative questions.

3. Make enquiries of statutory and regulatory bodies

Enquiries are made as required by ESI during land investigation assessments to local authorities and government bodies including the Environment Agency. ESI is well practiced in obtaining relevant info in a timely fashion and the consultancy team understands the right questions to ask and the correct information to obtain. As a highly experienced consultancy in land assessments ESI has developed strong relationships with Local Authorities and the Environment Agency.

4. Undertake independent site history investigation

ESI is experienced at providing initial land assessment reports (Phase 1) which often rely heavily on the piecing together and expert interpretation of historical land use information.

5. Provide advice on the need for independent full site investigation

If after conducting a Phase 1 assessment and further investigation is required, ESI will plan and deliver all aspects of the follow up Phase 2 assessment to meet the explicit needs of the individual location and, fully address the concerns highlighted in the Phase 1 report

6. Consider use of contractual protections and the use of exclusion tests.

ESI regularly forms part of negotiation teams in developing contracts for both buyers and sellers

7. Unresolved problems, consider advising withdrawal, and noting advice

If land investigations reveal extensive contamination, ESI’s reports and wider project advice provide clients with the full facts to make the right commercial decisions.

8. Advising insurance which is obtainable for costs of remediation of undetected contamination and any shortfall in value because of undisclosed problems

ESI can help with assessing the value of any such insurance policies and to ensure all likely contaminants are covered. ESI has a particular expertise in monetised risk assessment, weighing up the cost of remediation to assess the viability of development.

9. Leases should be assessed to establish if usual repair and statutory compliance clauses transfer remediation liability to the tenant

ESI are able to identify risk and costs that might be passed on to the tenant. In addition ESI has a network of legal contacts specialists who are specialists in environmental legislation.

10. Mortgages, the lender should be protected by an independent land quality assessment as the lender might become a mortgagee in possession and liable for any remediation costs

ESI has acted on behalf of commercial lenders in providing land quality assessments ensuring liabilities are recognised where appropriate.

In addition...

ESI also provides expert consultancy support to the legal profession in relation to a variety of additional environmental legislation:

The Water Resources Act 1991

The Groundwater Regulations 1998

The Pollution Prevention and Control (England and Wales) Regulations 2000