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Contaminated land

Contaminated land

The problem

Anyone buying a home (or indeed vacant land) should be aware of the problems which can arise if it is found that the property is contaminated. Property can be contaminated by many substances, for example asbestos, arsenic, hydrocarbons, methane gas produced by buried waste to name only a few.

Property owners should be aware that their land may in the past have been used for purposes which may have contaminated it, especially these days when old industrial land is frequently re-used for other purposes. Also, land can become contaminated because of the way other land near it has been used.

Ordering a clean-up

Local authorities are under a duty to take steps to identify contaminated land. If land is found to be contaminated the local authority is under a duty to decide whether action should be taken to remove the contamination. If a clean-up is necessary, it will then serve notice (called a "remediation notice") requiring reasonable steps to be taken to clean up the land.

Who pays?

Normally a remediation notice will be served on the person who caused the contamination. This may well be the present occupier but it could be someone who used the land in the past. This is the "polluter pays" principle.

Often however it will not be possible to identify the actual polluter - it could be a company which has gone out of business or it may be impossible to say who caused the contamination. In this situation, the remediation notice will be issued against the present owner or occupier. Thus a home owner might well find himself liable to clean up land even though he did not contaminate it and did not know it was contaminated when he bought it.

There are rights of appeal against a remediation notice. Failure to comply with a remediation notice is an offence. Additionally if a person responsible for complying with a notice fails to do so, the local authority can carry out the work itself and to recover the cost of the work from that person.

The risk

The risk for a house buyer is that they may inadvertently buy land which is contaminated and be saddled with the cost of the clean-up.

Neither the usual form of house survey nor the usual conveyancing investigation will reveal whether land is contaminated.

It is possible at modest cost to obtain an environmental report to ascertain whether there are factors which indicate that land may be contaminated. If a report is obtained, a solicitor is not qualified to interpret the results. There is no guarantee that an environmental report will detect any actual contamination which may exist. Preparing the report will not involve an actual inspection of the site.

If you are buying a property and you feel that you would like to obtain an environmental report, you MUST ask for one. Obtaining these reports is not a routine step.

Please bear in mind that if a buyer obtains a report and is having a mortgage, an adverse report may have to be disclosed to the lender and that this could affect the lender's decision to lend.

Radon gas

Finally a note on radon gas. This is a naturally occluding but radioactive substance which is harmful to health. The number of properties affected varies according to the locality. In Nottinghamshire, for example, it is thought that a very proportion of properties are affected. In other areas, Cornwall for example, local geological factors mean that a higher proportion of properties are affected.

Once again, neither the normal conveyancing process nor a survey will reveal that a house is affected. It is possible to test properties for radon but the test takes some weeks to carry out. This test is not a routine part of the conveyancing process even in affected areas. Local searches may reveal the possibility of radon gas levels being above action levels in the area but will not tell us anything about individual properties. If a property were found to have radon gas above action level, remedial work would be required. The cost of this would fall on the buyer of the property.

Buying a house is not risk free and purchasers should be aware of this problem.