Q&As

When can a landlord carry out environmental investigations?

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Published on LexisPSL on 08/10/2014

The following Environment Q&A provides comprehensive and up to date legal information covering:

  • When can a landlord carry out environmental investigations?
  • What if a landlord is concerned about pollution at its property?
  • Possfund v Kwik-Fit
  • Heronslea v Kwik-Fit
  • Key messages for solicitors acting for landlords
  • Suggested wording for leases
  • Statutory access for investigations and remediation work

STOP PRESS: The Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154 come into force on 1 January 2017. The regulations consolidate all of the amendments to the Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675 rather than making any substantive policy changes. We will be updating our content to reflect these changes as soon as possible.

What if a landlord is concerned about pollution at its property?

Soil and groundwater contamination can significantly reduce property value and lead to clean up liabilities for the landlord as owner. See Practice Notes: Contaminated land—who may be liable?, Contaminated land—identifying Class A and B appropriate persons, and Environmental liabilities—what are clean-up liabilities?

Properties with environmental permits, carrying out polluting activities (manufacturing, waste, hazardous substances) or with underground storage tanks (USTs) are particularly high risk.

If a landlord wants access to check for pollution, either during or at the end of the term, it will need agreement from the tenant or an express clause for environmental investigations in the lease.

Phase 1 audits involving site walkovers might be permitted by an inspection clause. Phase 2 soil, groundwater and gas testing that can cause damage or disruption to the tenant's business requires specific wording permitting intrusive phase 2 site investigations. See Practice Notes: Types of environmental investigations and Intrusive site investigations.

Two cases involving Kwik-Fit highlight the pitfalls for landlords.

Possfund v Kwik-Fit

In Possfund

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