Issues may arise from the previous use of the land for example if it has been used for a factory, there may be residual elements of chemicals and other contaminants which are harmful and are a health risk to anyone using the land. These contaminants may not be noticeable of visual inspection.
Other issues may be due to the structure of the land, for example if there is a history of mining below the land or adjoining land this may affect the stability of the land making the property susceptible to subsidence. It may be that the land on which the property has been built is within a flood zone and is therefore at risk of flooding.
All of these issues have implications for not only the health of those living and using the land, the stability of the land, but also for the value, mortgageability and insurability of the property.
Risks posed by contaminated land are not isolated to rural or out of town areas. Most large towns and cities have commercial and industrial sites that have fallen into disuse, and left as waste land with derelict buildings, such land is known as “Brownfield” land, a term which is used for land which has previously been developed. Much of this land is situated in urban locations, where industries have closed down, and have been replaced with residential communities.
As a general rule, Conveyancers will commission an Environmental Search on the property which is being purchased.
An Environmental Search is a “desktop” search carried out by companies who specialise in conducting Environmental Searches and who have access to the many databases of information kept by agencies such as the Environment Agency, Local Authorities, Public Health England and the Coal Authority.
What Information Does an Environmental Search show?
An Environmental Search will reveal the following
- Contaminated Land Register Entries and Notices
- Current Industrial Land Uses (such as Petrol Stations, rubbish tips, waste disposal sites and so on)
- Installations Handling Hazardous Substances which may be near the property.
- Pollution Control
- Pollution Incidents
- Environmental Permits (for example, discharge permits and waste disposal permits)
- Landfill Sites past and Present
- Telecommunications Transmitters
- Potentially Contaminated Land from Past Industrial Land Uses
- Electricity Lines
- Ground stability
- Radon Gas
- Regulated Environmental Processes and Surface Dangers or Hazards
- Enforcement and Prohibition Notices that may have been served either on the property or on adjoining properties
- Flood Risk
- Instances of past flooding
- Areas of Outstanding Natural Beauty
- Local Nature Reserves
- National Nature Reserves
- National Parks
- Sites of Special Scientific Interest
- Special Areas of Conservation
The search companies go through records of use by studying historical mappings, records of land use and other information to identify matters of potential concern.
Having carried out the search, the provider will then issue a certificate along with the results of the search. The certificate will state on it whether or not the property has “Passed” or if “Further Action” is required. The certificate will state whether or not the property is on land which would be designated as “contaminated land” within the meaning of Part 2 A of the Environmental Protection Act 1990. When the certificate states “Further Action” is required more detailed searches may need to be undertaken, and if the purchaser is obtaining a mortgage for their purchase, the lender will need to be informed.
Further information as to whether or not the property has been built on contaminated land, may be sought from the Contaminated Land Officer at the Local Authority. It may be beneficial to contact the Local Authority with Building Control and Planning Department, both of these Departments may also have records detailing how contamination has been managed to help you understand the condition of the land. Future, more specialised searches may need to be undertaken such as a Coal Mining Search.
There is a legal responsibility on the owner of land to ensure that any contamination is either removed or neutralised. Legal liability initially falls on those who “cause or knowingly permit a contaminant to be in, on or under the Land” if, however the cause or the party who caused the contaminants to be on the land cannot be traced, the legal liability will fall on the current owner of the land.
Part 2 A of the Environmental Protection Act 1990 gives the Local Authority the power to serve a remediation notice to the owner of the land requesting that the land is cleaned up, or other remedial measures taken to neutralise the risk arising from any contaminants. It is an offence to fail to remediate contaminated land once a remediation notice has been served and the Local Authority has the power to carry out the necessary work and recover the costs from the owner of the land. Remedial work can be lengthy and costly.