Environmental law practice

A recent report on a study into the public's approach to the redevelopment of contaminated land for housing use (funded by the Joseph Rowntree Foundation) has highlighted the reluctance of those responsible for developing contaminated land to provide prospective purchasers with sufficient relevant information. This, notwithstanding that the public's perception of environmental risk ranks land contamination in the top ten environmental hazards of greatest concern (along with vehicle exhaust emissions, overhead electricity cables, artificial fertilisers etc.).

The report makes it clear that in general both vendors and purchasers rely on solicitors' pre-contract enquiries to provide the desired information to the purchaser. The report continues:

"Such reliance upon solicitors' enquiries as the means of communicating information about contamination is widespread but ..... not all solicitors are diligent in making adequate enquiries about past uses. The study found that the smaller to medium size legal practices in the provinces were most at fault in this respect.

In a telephone conversation with the Law Society's practice advice department, made as part of the present research, no surprise was expressed at [these] findings. The Law Society had previously advised its members to enquire, as part of the local authority searches in the conveyancing process, whether or not the property was included on a Section 143 register of contaminated land. In view of the eventual abandonment of the registers,[it was felt that] the Law Society's advice was premature and it has now decided to wait until legislation is in force before issuing new guidance to its members."

The issue of contaminated land and potential liabilities associated with it cannot be said to be a new concept. It is surely well known that the cost of cleaning up a contaminated site to a standard suitable for residential use is not insubstantial. The cost of cleaning up a contaminated site for any use can be prohibitive and any prudent purchaser should address the issue in some detail. In the present climate it will be the purchaser's solicitor (along with an environmental consultant) who should oversee this exercise, with a view to identifying the risk and allocating it by negotiation or by contractual provisions. The same consideration will apply to the purchaser of any assets (say, plant and machinery) which may need to be upgraded to meet current or future environmental standards.

Environmental law (currently a difficult mixture of old and new laws both at national, EU and international level - often overlapping with health and safety, and planning legislation) is now so comprehensive and detailed that it should be regarded as a separate practice area. It is not an offshoot of planning law (neither is it always associated with property law) and it is not an offshoot of health and safety law either, although there can be significant overlaps. It covers air and water pollution, waste management, handling of hazardous substances, energy conservation, noise, agriculture, food safety etc. etc..

Those law firms with specific areas of expertise in this area should consider themselves fortunate. Others which have ignored this area should take steps to rectify the situation because one thing is certain, environmental liabilities are not going to go away and clients will expect every law firm, small, medium and large to have the relevant expertise.

Pamela Castle
This Comment previously appeared in the Law Society Gazette.