Contaminated land

Contaminated land

"Shoosmiths provided us with high quality, prompt and comprehensive advice relating to our potential liabilities as a land owner under the contaminated land regime and for water pollution. I would not hesitate to recommend their services in this field."

Under the statutory contaminated land regime, it is possible to inherit environmental liability for a property, notwithstanding that you did not cause the contamination.

Liability can arise by knowingly permitting the presence of contamination, or simply by owning or occupying the property. Regulators can serve notices requiring remediation to be carried out and paid for.

There are complex mechanisms to transfer liability under the regime, which may result in liability being retained or passed on inadvertently.

There is also the potential for further liability where water is polluted or where environmental damage is being caused. Third party claims can also arise under general law where contamination is affecting neighbouring sites, for example negligence and nuisance claims.

We have significant experience of advising clients on assessing and mitigating the risks associated with transactions involving contaminated land.

We act for landlords, tenants, buyers, sellers, developers, insolvency practitioners and funders, and work alongside clients and their consultants in a commercial and practical manner.

We review existing environmental reports and put in place appropriate collateral warranties or reliance letters. If further investigation or remediation is required we assist by appointing environmental consultants on suitable terms and conditions.

We draft and negotiate environmental liability transfer clauses, ground conditions, remediation schedules, access licences and indemnities.

We also provide clear advice on potential liabilities under the statutory contaminated land regime and other applicable legislation, including water pollution legislation and the Environmental Damage Regulations. If necessary, we help clients to put specialist environmental insurance in place.

We also advise on waste management and waste disposal requirements and hazardous substances, such as asbestos and Japanese knotweed, and on the transfer or surrender of environmental permits.

Work highlights

  • Carrying out environmental due diligence and negotiating environmental protections in the lease and business purchase agreement on the acquisition of a car dealership for a world class automotive company
  • Providing urgent advice on potential liability and co-operation with the Environment Agency following an oil spillage at premises owned by our client
  • Preparing a remediation statement for submission to the planning authority to assist our client J Murphy & Sons Limited obtain planning permission to develop a contaminated site
  • Advising a leading technology company on potential liabilities associated with ownership of a former landfill site
  • Negotiating a site condition clause and other environmental protections for an international retailer acquiring an ex-industrial site on which to construct a new store