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All you need to know about contaminated land

It has been determined that 2.6% of land in the beautiful South West is covered by possible contaminative historical land, including 3848 waste sites, 253 that are active landfill, and 3527 of historical landfill – a huge number potentially requiring remediation.

For contaminated land to pose a risk, the following three attributes must overlap:

  • There must be a source – gas/chemical works, garages, cotton mills, depots, military sites, landfills or pollution incidents. 
  • There must be a pathway – water courses, dust inhalation/ingestion, dermal contact or gas migration (from landfills and volatiles from petrol filling stations).
  • There must be a receptor – site uses as residential gardens/occupiers, water courses, aquifers and sensitive sites.  

As stipulated in the Environmental Protection Act 1990, contaminated land is ‘any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that (a) Significant harm is being caused or there is a significant possibility of such harm being caused; or (b) Significant pollution of controlled waters is being caused, or there is a significant possibility of such pollution being caused.’

The Act established liabilities for owners/occupiers and imposed a duty to identify contaminated land and remediate.  Since it is not always possible to locate the original polluter termed as ‘Appropriate Person A,’ the onus of remediation and in particular the cost of this falls to the owner/occupier as ‘Appropriate Person B.’ 

A ballpark figure for the cost of remediation is likely to be £250,000 per acre meaning that the average plot of land could cost £15,000.  The cost could include but is not limited to; feasibility studies, remediation design, remediation work, verification studies and reinstatement.  Residents on an estate in Sheffield suffered financial losses in this order between 2002 and 2005, where local funding was insufficient to deal with the post remediation phases of mature private gardens that had to be removed in order to clean up the site.

As a result of incidents such as this, the Law Society contaminated land warning card for due diligence in conveyancing requires solicitors to consider the environmental risk in EVERY property transaction.  The standard practice is to obtain an environmental search either resulting in a pass or further action report in which case, all is not lost.  It is often the case that such a report is based on a pin in a map and does not consider the finer detail.  For instance, the detail and land use could be ascertained from historical mapping.

The importance of historical mapping

Different eras of mapping can be useful since it identifies former land use.  For instance, a given mapped area in the 1880s is likely to show limited land use and perhaps a few individual trees.  Moving to the 1900s, the same area could reveal a few residential estates and allotment gardens.  The residential estates become more detailed by the next decade and the introduction of a nearby county football ground.  1950s maps reveal an industrial explosion with the detail of the land use shown to include; shoe repair factory, quilt works and knitting and weaving works.  As a result of the post-war era, some of this detail becomes hidden in the 1960s mapping by simply stating; warehouse, factory, works, bakery, dairy or builders yard.  By the 1980s, it is only warehouse, factory, works and depot that are shown with none of the other uses at all.  Some other labelled uses return in the 1990s to include garage but there is far less visual representation than the earlier mapping eras and the detail of the residential estate is not easily defined.

It’s clear to see how historic mapping can be valuable in assessing whether a particular site is likely to be affected by contaminated land.  An example of a site where historical mapping was used for this purpose was the former Imperial Tobacco Factory at Hengrove, which was simply labelled as works.  Spoil had been placed in a neighbouring lake, which has since had to be cleaned up following its change of use as a retail park.

Dealing with a failed search

To remedy a failed environmental search for a residential property, it is sensible to see if the developer warranty includes contaminated land cover.  It’s also sensible to check if the planning conditions include a discharge notice relating to contaminated land and to confirm that this has been signed off. Take care considering contacting the Environmental Health Department seeking a letter confirming their intentions; this could lead to tipping off that there is a potential problem which would not otherwise have been detected. Insurance could therefore be the answer.  This would cover for remediation/reinstatement costs, diminution in the value of the property and legal fees as well as offering comfort to purchasers and lenders.

In the case of a commercial search, some providers seek questions on the application to declare both current and intended use, whether there is an intention to redevelop and whether it is known that there is significant bulk fuel or chemical storage.  At the end of the day, what the searches and investigations hope to achieve is whether the site owner is likely to be liable for remediation: can the bank securely lend, could site be affected and whether there is an overall risk based on findings.

If you have any queries on this topic, contact our Commercial Property team on 0117 906 9400 or enquiries@gregglatchams.com

This article is based on webinars by Groundsure and CLS in 2017. Any errors or misinterpretations of these webinars are unintentional.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Categories: Commercial Property | For Business | Real Estate & Development

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