Tax analysis: Lauren Parker, Partner at Mills & Reeve, analyses the potential tax issues associated with land pooling

A public register in which interests in land are registered. Land registration is an ordinance survey map-based system which will eventually replace the Register of Sasines.

HM Land Registry has amended the guidance notes in forms ID3 and ID4 (Certificate of identity for a private individual and Certificate of identity for a body corporate respectively) to confirm that parties involved in a transaction cannot verify each other’s identity. The forms can only be used if both the person whose identity is to be verified and the person verifying the identity hold a full UK passport and the verifier has known the individual for at least one year.

The Scottish Government has launched a consultation seeking views on three specific issues focussed on the interaction between investment and devolved tax legislation in the context of the Land and Buildings Transaction Tax.

FORTHCOMING CHANGE: The Charities Act 2022 (CA 2022) received Royal Assent on 24 February 2022 and the plan, as set out in Charities Act 2022: implementation plan is for its provisions to come into force in three defined groups over three stages, on 31 October 2022, on 14 June 2023 and in ‘early 2024’. For a summary of the provisions in CA 2022 which have been implemented so far, see: Charities Act 2022: information about the changes being introduced. CA 2022 implements the majority of the recommendations from the 2017 Law Commission report, ‘Technical Issues in Charity Law’. For a summary (as at 9 April 2021) of the recommendations that have been accepted, see News Analysis: Government response to Law Commission report ‘Technical Issues in Charity Law’. In practice, academies and free schools differ significantly when it comes to their land holdings, although the legislation is the same for both. Note: there are no academies in Wales. Although the Academies Act 2010 (AcA 2010) does

The Land Charges Act 1972 (LCA 1972) provides for certain charges and incumbrances relating to unregistered land to be registered as land charges in the land charges register maintained by the Land Charges Department of HM Land Registry (based at its office in Plymouth). This is an entirely separate register to that for substantive title registration. Land charges protect the interests, in unregistered land, of third parties who do not hold the title deeds to the land and so cannot control when and how the land is disposed of. Failure to protect a charge on, or obligation affecting, unregistered land by registering a land charge, may result in the loss of valuable property rights. LCA 1972 also requires HM Land Registry, in addition to the register of land charges, to maintain the following registers: • pending land actions and pending actions in bankruptcy • writs and orders affecting land and writs and orders in bankruptcy The registers of pending land actions and pending actions in bankruptcy and writs and

date [date] Parties 1 [name of Landowner A] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] ([Landowner A]) 2 [name of Landowner B] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at OR [address] ([Landowner B]) 3 [name of Landowner C] of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] ([Landowner C]) 1 Definitions In this Agreement, the following definitions apply: Accountant • the person specified in clause 9.2; Additional Land • any land immediately adjoining or within the vicinity of the Development Site acquired in accordance with clause 17; [Adverse Rights • any easement, covenant, right or other interest in or over the Development Site, the release, discharge or variation of which is reasonably necessary in order to: (a) achieve the Collaboration Objectives; or (b) facilitate the Development;] [Adverse Rights Agreement • any document giving legal effect to the release, discharge or variation of an Adverse Right;] Approval • any: (a) permission, consent, licence, certificate, authorisation or other approval (in addition to but excluding the Satisfactory Planning Permission) from time to time required from a Competent Authority; (b) [any Rights Agreement;] that is necessary for carrying out the Enabling Works, and/or providing

Land contamination is a general term used to describe any land that may be contaminated in some way, but not necessarily at levels that attract contaminated land regime liability.

In 2020, the Law Society issued an updated practice note on contaminated land. This Law Society practice note updates the 2016 version. Prior to this, the practice note dated 18 December 2014, replaced the Law Society's former green card warning on contaminated land. What does the practice note cover? The practice note sets out the Law Society's view of good practice in relation to contaminated land for solicitors advising on property transactions. It states that solicitors should consider whether contamination is an issue in all conveyancing transactions, and notes that land contamination may be a significant issue in certain transactions. Land is only designated as 'contaminated land' within Part IIA of the Environmental Protection Act 1990 (EPA 1990) for legal purposes if it poses an unacceptable level of risk and if it has been formally identified as contaminated land by the local authority. Land may be physically contaminated even if it is not designated as 'contaminated land' within Part IIA for legal purposes. For more on the definition of contaminated land, see Practice

Land contamination liabilities The main types of liabilities associated with land contamination and water pollution are summarised in Table A. Table A—Summary of main land contamination liabilities Regulatory action Third-party liabilities Contractual liabilities Other liabilities Planning obligations and conditions in respect of development Private nuisance claims Lease disputes Clean up, investigation and monitoring costs. Landfill tax Contaminated land regime, Part IIA of the Environmental Protection Act 1990 (EPA 1990) Public nuisance claims Agreement for lease disputes Loss of property value Environmental damage regulations, EDR (England), SI 2015/810; EDR (Wales), SI 2009/995 Negligent professional advice Licence to enter indemnity claims Delay or aborted transactions Anti-pollution works notices, sections 161–161D of the Water Resources Act 1991 (WRA 1991) Personal injury claims Remediation agreements Accounting provisions Environmental permit obligations, EPR 2016, SI 2016/1154 Misrepresentation Insurance policy disputes Negative publicity For further information, see Practice Notes: Land contamination—potential liabilities and Water pollution—potential liabilities. When is a lender at risk? Contaminated land liabilities can impact a lender in the following ways:

Managing contaminated land liabilities is an important consideration in construction projects. Liability for land contamination is most likely to arise under the planning regime and the contaminated land regime set out in Part IIA of the Environmental Protection Act 1990 (EPA 1990). Remediation through the planning regime The majority of land contamination in England and Wales is dealt with under the planning system. To ensure a site is suitable for a new use and to prevent unacceptable risk from pollution, the implications of contamination for development should be considered through the planning process to the extent that it is not addressed by other regimes, such as under the EPA 1990, Pt IIA, Building Regulations and environmental permits (see: Environmental permits and exemptions—overview). The developer and environmental consultant should assess the potential risks from contamination before planning permission is granted for the development. Planning applicants should engage with the local planning authority and environmental consultant at an early stage of the application process, particularly if the land is determined as contaminated land under the EPA 1990, Pt IIA, to

Why is land contamination important in corporate deals? Land contamination concerns are an important consideration in private mergers and acquisitions (M&A) deals for several reasons: • there are many triggers for land contamination liabilities • the seller, buyer, successors in title, funder, tenant and consultants can all inherit liabilities • the parties may have different attitudes and technical advice on the risks • liability and cost concerns can delay and in some cases abort transactions • the cost of groundwater remediation can exceed several £million See Practice Notes: Contaminated land—who may be liable? and Land contamination—potential liabilities. The Law Society practice note on contaminated land encourages lawyers to advise their clients about contaminated land risks in every transaction involving property. For further information, see the Practice Note: Land contamination—Law Society practice note on contaminated land. Types of land contamination liabilities There are different types of liabilities associated with land contamination and water pollution that are summarised in Table A. Table A—Summary of main land contamination liabilities Regulatory action Third party liabilities Contractual liabilities Other liabilities Planning