by Varuna Addy
How does land contamination happen?
The UK has a long industrial history traceable back over hundreds of years. Various industrial practices have lead to the release of chemicals, metals, oils and tars in many locations. Also, in the past, chemical storage and waste disposal were not as tightly controlled as they are today. Excavated land was sometimes filled with waste without adequate precautions against the pollution of surrounding land or the soil above the landfill. Another common cause of contamination for domestic properties is heating oil leaks.
The mere presence of contamination at a site will not necessarily render it 'contaminated land'. Land can be potentially affected by contamination but for land to be defined as 'contaminated land', it must meet the statutory definition.
What are the risks from land contamination?
Contaminated land may present a hazard to potential users of the land and affect vegetation. Exposure to contaminants can be through inhalation of dust or gases, contact with soil or through food grown on the land. Leachates (pollutants draining from the site in liquid form) can pollute groundwater and rivers or ponds.
What can be done to make land contamination safe?
These days, house builders have to routinely consider the past use of a site and carry out appropriate remediation works at the site. This is closely monitored by the local authority and, in some cases, the Environment Agency. Conditions put on the planning approval will not be discharged until the council is satisfied that all works have been carried out as necessary.
For a redevelopment being carried out under a Planning permission, the developer is responsible for assessing the condition of the site. The investigation should provide as much detail as possible about the site and the surrounding area and the key elements include:
• A desk study.
• A detailed site investigation.
• Post remediation verification testing and report.
Where land/ property is not subject to Planning but contamination is suspected to be present, a risk assessment by a qualified consultant could be carried out privately, but the cost would have to be met either by the present owner or a prospective purchaser. This may include carrying out intrusive sampling.
Possible contamination is considered when property is bought or sold. Although not a statutory requirement, environmental searches are frequently carried out by conveyancing solicitors to identify contamination that might affect the property being offered for sale. These environmental searches are most often provided by commercial organisations or Local Councils. Generally the searches include a study of old historical mapping, land use records and other information that might indicate matters of potential concern. As a result of these searches, the commercial organisation may issue a certificate that the site appears to be at minimal risk of being affected by contamination. Alternatively if contamination is suspected a certificate may be withheld, but a warning issued that contamination may be present. This is not a guarantee that contamination is actually present, nor is the issue of a certificate a guarantee that no contamination is at the property. In such circumstances, further information is sought from the Local Council.
As understanding of the importance of land contamination has increased, it has become more common for solicitors to make enquiries about land contamination. Some buyers have noted that their lender may be reluctant to proceed with a mortgage advance where there is uncertainty about site contamination. Some buyers may be put off by the possible presence of land contamination. In terms of a property conveyance, it is important that advice is sought from solicitors.
EHT&C can offer further advice. Please visit our contaminated land consultancy page.