In 2001, the Law Society issued a legal warning card to all solicitors with regard to Part 2A of the Environmental Protection Act 1990 and the following points were highlighted:
In purchases, mortgages and leases, solicitors should:
- Advise the client of potential liabilities associated with contaminated land. Generally clients should be advised of the possibility and consequences of acquiring interests in contaminated land and the steps that can be taken to assess the risks.
- Make specific enquiries of the seller in all commercial cases and if contamination is considered likely to be a risk in residential cases, for example redevelopment of brown field land.
- Make enquiries of statutory and regulatory bodies for example Rochford District Council’s Environmental Protection Unit, the Environment Agency and so on.
- Undertake independent site history investigation for example obtaining site reports from any commercial company for those mentioned in the examples above.
In commercial cases if it is likely that the site is contaminated, solicitors should:
- Advise about an independent full site investigation.
- Consider the use of contractual protections and the use of exclusion tests. This may involve specific disclosure of known defects, possibly coupled with price reduction, requirements on seller to remedy before completion, and in complex cases the use of warranties and indemnities.
For any unresolved problems solicitors should consider:
- Advising withdrawal, and noting advice.
- Advising insurance (increasingly obtainable for costs of remediation of undetected contamination and any shortfall in value because of undisclosed problems).
For applications forms and information about making an Environmental Information Request about contaminated land, please see our Buying and Selling a Property, and Contaminated land page.
If you have any further questions about Contaminated land you can contact us by emailing customer.services@rochford.gov.uk