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Getting your head around the new contaminated-land regime

legal matters

April, according to the latest information from the detr, will be when the new contaminated-land regime comes into force. It has wide- ranging implications for land users, sellers and buyers, and is likely to create the need for a multitude of new consultants. Architects need to be aware of the implications for their clients and to be able to advise on where to go for specialist help. Indeed, there may be those who are interested in developing this specialism themselves.

The main clean-up provisions currently in force empower the Environment Agency to act where there is water pollution, and local aut-horities to serve abatement notices where there are statutory nuisances.

Under the new regime, local authorities will have a duty to inspect their areas to identify contaminated land. They will probably prioritise high-risk sites by inspecting them first. The definition of contaminated land is sophisticated. In short, it looks beyond levels of contamination on a particular site, to the risk which that contamination poses to other vulnerable sites, such as adjacent housing.

When a local authority identifies a site as contaminated, there will be a three-month consultation period with the 'appropriate person' responsible for cleaning it up to try to agree the necessary steps with the local authority. If no agreement is reached, the local authority will serve a remediation notice specifying what must be done. It will be a criminal offence not to comply with the notice.

The primary candidate for cleaning up is whoever has caused or knowingly permitted the pollution - described in the draft guidance as a 'Class A Appropriate Person'. In the absence of a Class A person, the local authority will turn to the owner or occupier of the land - a 'Class B' Appropriate Person. The Class B person's liability is limited. They cannot be required to clean up either water pollution or pollutants which have 'escaped' onto their land from elsewhere. But if, for example, your client buys a site contaminated by a previous owner who cannot be found, they could find themselves footing the bill for cleaning it up.

Clients buying or selling land will need to know about the increased importance of contamination surveys. Given the way in which contaminated land is defined, surveys will have to deal with the environs of the site as well as with the site itself. Either sellers will carry out surveys, making the data available to purchasers, or purchasers will commission their own. The contract for a survey carried out by a seller should be assignable to the purchaser so they can rely on it after the sale.

Surveys may include many components, such as researching the previous land use and taking samples and analysing them. Clients will then need advice on any necessary remedial works, which may have to be negotiated with the local authority.

A contractor will be needed to carry out the works, with all the usual contractual tasks which that entails. This range of activities may be beyond the scope of a single professional. Specialist consultants will doubtless be looking for work generated by the new regime. It is important to remember that architects have been held by the courts to have a duty to take care when recommending others to their clients, and may be liable if that person is not competent.

If architects find themselves asked to carry out any active role in dealing with land contamination, they would be well advised to speak to their insurers.

This is only a brief overview of legislation which is expected to have a major impact on the property industry. It will create new duties for construction professionals and, inevitably, more work. Take time to find out more.

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