Land contamination—potential liabilities
Produced in partnership with ELM Law

The following Environment practice note produced in partnership with ELM Law provides comprehensive and up to date legal information covering:

  • Land contamination—potential liabilities
  • Types of contaminated land liabilities
  • Planning regime
  • Contaminated land regime
  • Environmental damage regime
  • Environmental permit obligations
  • Fly-tipped waste
  • Water pollution regimes
  • Civil liability
  • Contractual liability

Land contamination—potential liabilities

Types of contaminated land liabilities

There are several types of liabilities associated with land contamination that are summarised in the table below.

Regulatory actionThird party liabilitiesContractual liabilitiesOther liabilities
Planning regimePrivate nuisance claims for off-site migrationLandlord and tenant obligationsClean-up, investigation and monitoring costs
Contaminated land regimePublic nuisance claimsIndemnities in sale contractsLoss of property value
Environmental damage regulationsClaims relating to negligent adviceIndemnities in corporate and sale and purchase agreementsDelay or aborted transactions
Water pollution legislationPersonal injury claimsRemediation agreementsAccounting provisions
Environmental permitting regimeMisrepresentationInsurance disputesNegative publicity

Planning regime

Most land contamination is addressed voluntarily when land is developed or redeveloped through the planning system.

The National Planning Policy Framework sets out the planning policy to manage land contamination risks.

Who is liable?The developer is responsible for ensuring that a development is safe and that the land is suitable for use, see NPPF, paras 183–185.
The Local Planning Authority (LPA) can either use:
• planning conditions—site investigations, remediation and monitoring, or
• planning obligations—to undertake works, restrict the development or pay the LPA
Type of harmContaminated land must pose 'unacceptable risks' to human health or the environment. As a minimum, land should not be capable of being determined as contaminated land under Part IIA of the Environmental Protection Act 1990 (EPA 1990)—see Practice Note: Contaminated land—definition of contaminated land.
When is liability triggered?When the

Popular documents