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Contaminated land

When purchasing or leasing commercial property care must be taken to assess the risk of the land being deemed “contaminated land” under the Environmental Protection Act 1990.

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Contaminated land

What is contaminated land?

Contaminated Land is land which, due to substances in, on or under it appears to cause or pose a significant risk of harm to either the environment or human health. It also includes land which is causing or likely to cause water pollution.

Local Authorities and the Environment Agency are now required to compile and maintain registers of land which is contaminated.

If land has been identified as contaminated a notice will be served requiring investigation, monitoring and ultimately clean up of the contamination. The related costs could be significant and may even exceed the property price. Failure to comply with a remediation notice is a criminal offence.

What can be done?

A local authority search will identify land which has already been identified as contaminated land or reveal if consultations are underway with the current owner before service of a remediation notice. A negative reply to the standard local authority enquiries from the local authority may merely mean the site has not been inspected. It does not necessarily mean there is no problem

An environmental search will identify past uses of the commercial property and assess the risk of the land being deemed to be contaminated land in the future.

Direct questions can also be put to the Seller.

Liability

Whilst primary liability rests with the person who caused the contaminating substances to be present liability can quickly pass down the chain to the current owner or occupier including tenants.

As such it is critical  to address the issue of environmental liability in all commercial property or commercial lease transactions  so that the allocation of liability is clearly set out and understood between the parties or appropriate warranties and indemnities are given.

If you wish to discuss this article or require any advice or assistance in relation to commercial leases then please do not hesitate to contact our Commercial Property solicitor Jonathan Senior on 0114 2536543.

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