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You are probably aware there is a potential liability for a buyer of contaminated land for clearing up the contamination.
That doesn't seem very fair when we didn't cause the pollution.
The first port of call for clean-up is the people who actually caused or "knowingly permitted" the contamination.
What does "knowingly permitted" mean?
Unfortunately this isn't defined in the legislation and there is no current published guidance but a now obsolete piece of guidance said that for a person knowingly to permit contamination they must have known about the contamination and had the power to do something about it.
Well that sounds like a buyer of land would be in the clear, doesn't it?
If no one can be found who caused or knowingly permitted the contamination then the liability passes to the current owner or occupier regardless of whether that person was aware of the contamination. That’s why we do environmental and contamination searches when clients buy new properties: forearmed is forewarned. If there is a big potential liability, then you can decide not to buy the site before you get embroiled.
Aren't there limitation rules which mean that we wouldn't be liable for really old contamination?
Generally speaking, there are limitation rules (usually 6 or 12 years) which stop people being held liable for things which happened before those time limits. Unfortunately environmental laws which came into force in 2000 say that the usual time limitations do not apply to cleaning up contaminated land. Regulators can make all sorts of people involved in the land carry out a clean-up of the site even if they are not the original polluters. If you buy a contaminated site you may become liable for clean-up even though you didn't cause it and it happened a very long time ago.
Are there any exceptions to the clean-up liability?
Current owners who are not the actual polluters will not be liable for water pollution and there are special provisions for liability of current owners if contamination migrates to or from another site.
In fact, the contaminated land legislation has not been heavily used to effect clean-up of sites. Instead, the local authority is likely to impose a condition on the planning permission that whoever implements the planning permission cleans up the contamination so the site is suitable for new use.
If you want to discuss this further, please give us a call and ask to speak to one of our Commercial Property team who will be happy to assist.