Managing Environmental Risks
Outcomes
1. Analyse the results of environmental searches and enquiries.
2. Advise your client on the risks and environmental liabilities associated with contaminated
land.
3. Evaluate the different commercial and legal methods of obtaining protection against
environmental liability in the context of development land.
Significance of environmental risk is the liability and cost of clean-up. This can have significant
financial impacts on the developer and thus, investigation is undertaken as early as possible before
proceeding to negotiate sale and contract terms.
• Caveat emptor applies and therefore the seller is not required to disclose any environmental
contamination
Pre-contract searches Law Society Practice Note
• In all purchase, leases or mortgages solicitors should always undertake the CON29
and LLC1 searches
• CON29O should also be undertaken as these will raise more specific contaminant
issues- where there is industrial site with previous use CON29O additional searches
can be justified, although additional charges, would save cost in the long run if the
contamination arose when they were not expecting.
• Coal Authority mining search will raise issues of subsidence
• What optional searches you choose is fact specific but at least some should be done
because contamination clean-up is costly and should be checked even as precaution
Enquiries of the seller Buyer should request specific enquiries of the seller in relation to environmental issues.
• Will be done through CPSE’s
• CPSE enquiry 15 for environmental matters
• Reveal historic, present or potential pollution, hazardous substances, enforcement
actions of complaints by third parties
Environmental Prudent solicitor should always conduct an environmental desktop survey
searches and
investigations • Range from £50-£300 depending on the size of the land
• Does not involve physical inspection- so this will still need to be done, either physical
inspection yourself or surveyor
Will reveal any reports on the property derives from public sources, the report will reveal any
potential liabilities and the consultant will recommend any further action to mitigate or reduce
the risk- useful to assess the scope
Recommendations can include
• Specific enquiries of the regulator
• Phase I report to carry out site inspection
• Phase II report: detailed site inspection with testing analysis
, Negative search results are not conclusive that the land IS NOT contaminated
• May be that the site has not been inspected
• The current level of contamination is not high enough to currently meet Pt IIA- EPA
and may reach so in the future
What the solicitor • advise of the consequences of acquiring interests in contaminated land, eg potential
should do after desktop liability for contamination and compliance with a remediation notice
search results • make further enquiries of the local authority or Environment Agency or Natural
Resources Wales
• make further enquiries of the seller, landlord or borrower
• make full searches of any public registers regarding the site and adjacent land
• suggest that an independent site report from a commercial provider is obtained
• suggest that an independent valuation of the property is obtained—this may result in
the buyer requiring a price reduction or a lender withdrawing from, or imposing
additional conditions in, their offer
• advise on the use and effect of appropriate contractual protection, eg exclusion and
indemnity clauses, apportionments, warranties, or pre-conditions to completion
• advise on the appropriateness of obtaining environmental insurance
What else phoenix should be commissioning:
• CON29M
• Flood search
• Surveyor
• SIM- Index map search to see if there are any registered rights
• Full environmental survey- 2 types phase 1 or phase 2 report in chapter 8
phase 1 is environmental consultant carrying out site consultation or phase 2
includes contractor who is experienced in the field and will conduct a full
investigation including water testing and soil samples etc. very intrusive and
expensive justified in this scenario
• Find out through seller whether they have insurance or any issues with obtaining
• Check any previous planning permission to see if any/all conditions have been
served and complied with
Outcomes
1. Analyse the results of environmental searches and enquiries.
2. Advise your client on the risks and environmental liabilities associated with contaminated
land.
3. Evaluate the different commercial and legal methods of obtaining protection against
environmental liability in the context of development land.
Significance of environmental risk is the liability and cost of clean-up. This can have significant
financial impacts on the developer and thus, investigation is undertaken as early as possible before
proceeding to negotiate sale and contract terms.
• Caveat emptor applies and therefore the seller is not required to disclose any environmental
contamination
Pre-contract searches Law Society Practice Note
• In all purchase, leases or mortgages solicitors should always undertake the CON29
and LLC1 searches
• CON29O should also be undertaken as these will raise more specific contaminant
issues- where there is industrial site with previous use CON29O additional searches
can be justified, although additional charges, would save cost in the long run if the
contamination arose when they were not expecting.
• Coal Authority mining search will raise issues of subsidence
• What optional searches you choose is fact specific but at least some should be done
because contamination clean-up is costly and should be checked even as precaution
Enquiries of the seller Buyer should request specific enquiries of the seller in relation to environmental issues.
• Will be done through CPSE’s
• CPSE enquiry 15 for environmental matters
• Reveal historic, present or potential pollution, hazardous substances, enforcement
actions of complaints by third parties
Environmental Prudent solicitor should always conduct an environmental desktop survey
searches and
investigations • Range from £50-£300 depending on the size of the land
• Does not involve physical inspection- so this will still need to be done, either physical
inspection yourself or surveyor
Will reveal any reports on the property derives from public sources, the report will reveal any
potential liabilities and the consultant will recommend any further action to mitigate or reduce
the risk- useful to assess the scope
Recommendations can include
• Specific enquiries of the regulator
• Phase I report to carry out site inspection
• Phase II report: detailed site inspection with testing analysis
, Negative search results are not conclusive that the land IS NOT contaminated
• May be that the site has not been inspected
• The current level of contamination is not high enough to currently meet Pt IIA- EPA
and may reach so in the future
What the solicitor • advise of the consequences of acquiring interests in contaminated land, eg potential
should do after desktop liability for contamination and compliance with a remediation notice
search results • make further enquiries of the local authority or Environment Agency or Natural
Resources Wales
• make further enquiries of the seller, landlord or borrower
• make full searches of any public registers regarding the site and adjacent land
• suggest that an independent site report from a commercial provider is obtained
• suggest that an independent valuation of the property is obtained—this may result in
the buyer requiring a price reduction or a lender withdrawing from, or imposing
additional conditions in, their offer
• advise on the use and effect of appropriate contractual protection, eg exclusion and
indemnity clauses, apportionments, warranties, or pre-conditions to completion
• advise on the appropriateness of obtaining environmental insurance
What else phoenix should be commissioning:
• CON29M
• Flood search
• Surveyor
• SIM- Index map search to see if there are any registered rights
• Full environmental survey- 2 types phase 1 or phase 2 report in chapter 8
phase 1 is environmental consultant carrying out site consultation or phase 2
includes contractor who is experienced in the field and will conduct a full
investigation including water testing and soil samples etc. very intrusive and
expensive justified in this scenario
• Find out through seller whether they have insurance or any issues with obtaining
• Check any previous planning permission to see if any/all conditions have been
served and complied with
