Contaminated Land
Part IIA in Relation to Conveyance Searches
The introduction of Part IIA (as inserted into
section 78 of the Environmental Protection Act 1990 by section 57
of the Environment Act 1995) has resulted in an increased awareness
amongst mortgage lenders of possible liabilities associated with
contaminated land.
Consequently, it has become increasingly common for solicitors
and conveyancers to undertake a third party environmental search
when arranging the transaction of land or property.
The aim of these searches is to help identify whether a site or
property already is, or may in the future, be determined as
Statutory Contaminated Land by the Council under
Part IIA.
These searches are generally based upon information obtained
from historical Ordnance Survey maps, Local Authorities and the
Environment Agency. Over a period of time a particular site may
have been home to a variety of industries, each of which may have
left substances in the ground that may be hazardous to human health
and the environment. More recent activities on the site may also
have been identified which could also have had a detrimental impact
on the environment.
If a search of these historical maps shows the presence of past
industrial activities on or in the vicinity of a site or property,
it raises the possibility that a source of contamination may be
present.
The consequences of the Council determining the land or property
you own or occupy as Statutory Contaminated Land, could mean that
you might be liable for remediation or clean-up costs. The concern
from mortgage lenders in particular, is that if the mortgagee
defaults on repayments and the lender repossess the property, they
may be left liable for these costs.
Will an environmental search tell me whether my land will be
determined as Statutory Contaminated Land?
No .
Simply identifying the possible presence of a source of
contamination will not be sufficient to inform a decision as to
whether a site or property is likely to be determined as Statutory
Contaminated Land.
Local authorities have been given the responsibility for making
decisions on what constitutes contaminated land,
not the company or individual undertaking the
environmental search.
What will an environmental search tell me?
An environmental search, sometimes referred to as a desk study
or Phase 1 investigation, will provide an indication as to whether
your site is a potential source of contamination.
In order to understand the significance of this, it is necessary to
consider the Part IIA legislation in a little more detail.
A key element within the Part IIA regime for determining whether
a site poses a risk, is the pollutant linkage
concept. Under the Part IIA regime, without the clear
identification of all three elements of the pollutant linkage, land
cannot be identified as Statutory Contaminated Land. The three
components required to establish a pollutant linkage are a
source, a pathway and a
receptor:
- the source is the actual contamination which
could be located in, on or under the land
- the pathway which is the route by which the
contamination reaches the receptor; and
- the receptor which is defined as living
organisms, ecological systems or property which may be harmed.
Environmental searches generally focus on identifying the first
part of a pollutant linkage, a source of
contamination.
It is important to note that these searches are based upon paper
records such as maps or registers and do not consider any physical
site data obtained from investigation of the site itself.
Therefore, without physical evidence of contamination obtained from
sampling and analysis, the presence of a source of contamination is
only inferred. In general this type of search would only indicate
the likelihood as to whether more detailed site investigation would
be required. Detailed investigations would include soil testing and
analysis, together with a risk assessment.
The third party environmental search will either find,
- There is no evidence that a potential source
of contamination may be present at the site
- There is evidence that a potential source of
contamination may be present at the site
By eliminating the possibility of your site having previously
been the source of an industrial activity you are simply providing
documentary evidence that one element of the pollutant linkage
could be missing.
What if I receive a certificate from a search company
saying contamination is not likely to be present?
If no contaminative past uses are identified, then the site or
property may be given certification by the company who undertook
the search that contamination is not likely to be present.
This certificate does not constitute a guarantee that the land
does not meet the statutory definition of contaminated land.
Instead it is a statement from the company undertaking the search
that a review of the data examined in the search did not identify
an obvious potential source of contamination at the land in
question.
What if a potential past contaminative use is
identified?
Where a past potentially contaminative use is identified on or
adjacent to the site or property the company undertaking the search
will not issue a certificate.
The search company may offer recommendations on who to contact
for further information. On matters relating to Part IIA it is
advisable to contact the appropriate Local Authority.
If I am refused a certificate what should I do
next?
The decision whether to proceed with or without third party
certification is ultimately an issue between yourself and the
mortgage lender. However, there are a variety of other sources of
information to help you make a decision.
1. You could conduct additional enquiries, including
contacting the appropriate local authority
Local authorities have begun to inspect land within their
boundaries with the aim of identifying all areas of statutorily
Contaminated Land before securing appropriate remediation. This is
a lengthy and involved process and councils will be at various
stages of the work programme. The appropriate local authority will
be able to advise you as to whether the site or property in
question has been inspected as part of its Contaminated Land
Inspection Strategy. Local Authorities have adopted a strategic
approach to this inspection. This ensures that where land or
properties have historically been the site of a potentially
contaminative industrial activity that they are inspected
first.
Your local authority will generally have access to the same
historical map data that the search company will have used to make
their decision. In addition they may have more detailed maps along
with supplementary map data and detailed local knowledge.
2. You could make enquiries with the developer of the
site or property in question
The original builder or developer may have some information on
any contamination found and any remediation undertaken at the site.
If you are dealing with a transaction involving a recent
development then a site investigation report might be available. If
the property was built after April 1999 then the National House
Builders Council (NHBC) may have information on contamination, or
may have provided a warranty against contamination.
3. You could employ an environmental consultant to
provide actual site investigation data
In the absence of any site investigation reports, either you or
the seller may wish to arrange to undertake your own site
investigation. This will give more specific information about the
site and can help indicate if the site may be determined Statutory
Contaminated Land. An environmental consultant would normally
provide such services. If you use such a service, check that the
environmental consultant can provide a suitable level of indemnity
and liability cover. It should be noted that there could be
significant costs involved in following this course of action which
may be inappropriate for a house purchase.
Unfortunately, local authority officers are unable to recommend
the use of specific consultants but can assist with more
information about what will be required.
4. You could try to insure against any potential
risk
Environmental insurance is available which provides cover
against the Council determining the site or property as Statutory
Contaminated Land. This should cover you against any remedial
costs. It should be noted that insurers would require information
on the site’s history before providing this insurance and may not
be willing to underwrite land where significant contamination is
suspected.
Conclusions
The final decision to purchase a property rests with the
potential buyer and mortgage lender who both need to be satisfied
with the level of risk associated with the transaction.
A certificate issued by an environmental search company does not
constitute a guarantee that the site or property in question does
not meet the statutory definition of contaminated land. It is only
a statement from the company undertaking the search that a review
of the data examined in the search did not identify an obvious
potential source of contamination at the land or property in
question.
An environmental search that indicates the potential for
contamination on site does not conclusively prove that there is a
problem. It is merely an interpretation based upon map and other
paper records. The key information informing that decision will be
good quality site investigation data that confirms either the
presence and extent, or absence of significant contamination.
It is important to remember that your local authority is the
primary regulator of Part IIA and is a good source of information
when looking to make decisions relating to Part IIA.
Until local authorities complete the inspection of their land as
detailed in their Contaminated Land Strategies, they will not be in
a position to inform you as to whether your land or property could
be determined as Statutory Contaminated Land. The Council can help
you make decisions about sites and properties by giving you the
available facts and explaining the legislative position. Finally,
it should be remembered that legislation and guidance can change
and in the future standards may tighten.
Local authorities will make a charge for providing information
so it is worth checking with the relevant department before
deciding what information is actually required and what the cost
will be.
Contact
Email: envhealth@dover.gov.uk
Telephone: 01304 872230
