Law Society issues practice notes on contaminated land and flood risk

25 Feb 2015

The Law Society has issued practice notes on contaminated land and flood risk for solicitors dealing with these matters. The practice notes are a useful summary of the issues surrounding these matters. Contaminated Land 

  • The contaminated land regime is contained in Part 2A of the Environmental Protection Act 1990 (“the Act”) and covers land and controlled waters.
  • Whilst the regime came into effect in England on 1 April 2000 and in Wales on 15 September 2001, the provisions of the Act are retrospective.
  • Local authorities are required to inspect and identify contaminated land, being ‘significant contaminated linkage’ i.e. a significant contaminant, a pathway and a receptor. Enforcement of land is dealt with by local authorities, who can issue remediation notices, and more serious contamination or water pollution is dealt with by the Environment Agency (or, in Wales, Natural Resource Wales). It is an offence not to comply with a remediation notice and a local authority is empowered to carry out the works and recover the costs from the recipient of the notice.
  • Radioactive land is dealt with by a separate regime and becomes a ‘special site’ out of the hands of a local authority once they deem it as such.
  • Liability to remediate land may arise as a result of substances which are risky to receptors (designated ecological areas, controlled waters, animals, buildings etc).
  • ‘Class A’ persons are those who ‘cause or knowingly permit’ a contaminant to be in, on or under the land. They are liable for the contamination however could pass to ‘Class B’ persons if the Class A person cannot be found – owner(s)/occupier(s)/mortgagees in possession of the land.
  • In the context of a sale and purchase, buyers who is aware of the contamination or receives a payment or discount in respect of its remediation costs but who does not remediate is likely to be a Class A person and the seller’s liability is likely to be removed. There are some exclusions, however.

As liability can have the effect of running with the land, local searches will identify whether a local authority has designated land as contaminated and tenants/buyers/lenders will need to make further enquiries and seek indemnities in respect of contaminated land.

Any person who has received a remediation notice should seek specialist legal advice.

The guidance note is available here:- Flood Risk A site’s risk of flood could affect the landowner’s ability to obtain a mortgage, insurance, sell the site on and ultimately its value.

The most common types of flooding are:

  • Surface water flooding, where drainage cannot deal with heavy rainfall;
  • Sewer flooding, where sewers cannot deal with heavy rainfall or a blockage;
  • Groundwater flooding, where water levels exceed surface levels;
  • River flooding, where excessive water drains into a watercourse; and
  • Coastal flooding, where high tides come over low land or storms.
    • Flood Re, a not-for-profit flood insurance scheme, is hoped to become operational this summer. Its purpose is to ensure properties with a high flood risk can still obtain affordable flood insurance.
    • Online searches will provide initial information on flooding. The Environment Agency maintains several flood maps on their website, although these do not identify groundwater flooding, and the Land Registry has a Flood Risk Indicator which combines its information with the Environment Agency and Natural Resource Wales’.
    • Screening reports are quick and low cost but more detailed than online searches and may give an indication as to whether further enquiry is needed.
    • Commercial searches and surveys can provide greater information, as will enquiries to insurance companies.

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