Contaminated land: a reminder and a warning

“Contaminated land”, you think, “I remember that.” We were all very excited about contaminated land a few years ago, but it all went away again, didn’t it?

No. Think again.

Unfortunately contaminated land is an issue which will be with us for ever. It cannot go away. Contaminated land is the legacy of hundreds of years of human activity, particularly industrial and commercial activity, within Scotland. Contaminated land is an issue not only in industrial or former industrial areas of large cities. While most contamination will appear in such areas, contamination problems can turn up anywhere that has been touched by humans. Most small towns have or have had some form of contaminative commercial activity, and anywhere in Scotland, inside a town or outside, might be the location for dumping of harmful material, authorised or non-authorised.

Contaminated land is not an issue only for commercial transactions. Residential property can be and is erected on contaminated sites, and owners and occupiers of residential properties are likely to be more worried than owners or occupiers of commercial sites about the risks cased by contamination – they are living there, not just visiting the site to work or trade.

Information about past uses of the land may help identify sites where problems are likely to exist. Such information is very useful. But always remember that land can be contaminated even if there is no record of a previous contaminative use.

In practice most contamination is cleaned up in course of development or redevelopment. Planning authorities will now insist on information regarding ground contamination, and will insist on appropriate cleanup before development is authorised. That means the issue of contaminated land is vital to any form of development.

The principal legal mechanism for dealing with liability for contaminated land is the regime laid down in Part IIA of the Environmental Protection Act 1990, as amended by the Environment Act 1995. The application of that regime is still ongoing. Areas of ground are being designated as contaminated land by local authorities, and local authorities are now serving remediation notices on the appropriate persons as identified in that legislation.

By way of example we have the English case of Circular Facilities (London) Ltd v Sevenoaks District Council. In that case a builder was found liable to pay for remediation of a residential site he developed more than 20 years ago.

The Law Society of Scotland produced a contaminated land information leaflet in 2003 and this is reprinted in the Journal, April 2003, 32 (also available at www.journalonline.co.uk). This states that in every transaction solicitors should consider whether contamination is an issue, and gives specific information to solicitors regarding contaminated land. Please consult this leaflet and act on its advice.

The liabilities are real. The law is developing. I will summarise the current position in a longer article in next month’s Journal.

Professor Kenneth Ross is a partner in Brodies LLP, Glasgow