Contaminated land 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?
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.
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.
If you would like us to carry out a search
- Our fees are £32 per hour, minimum 1 hour
- To carry out a search for you we need a location plan clearly identifying the site in question
We will examine the list of sites registered under the Environmental Permitting (England & Wales) Regulations 2010 to establish whether any processes are located within the vicinity of the site:
- the Kent Landfill Atlas
- Landmark Historic Map Data
- any relevant information retained on our corporate database
Arrange a contaminated land search »
Telephone: 01304 872428