Law Society practice note on contaminated land The Law Society issued a warning card on contaminated land in April 2002. This was replaced by a practice note in December 2014, which was reissued with minor changes on 13 April 2016 and a further update in 2020. The practice note sets out the Law Society’s view of good practice and advises solicitors in all transactions involving property to, amongst other matters: • undertake a CON 29 and LLC1 search to ascertain whether the land has been designated by the local authority as contaminated land • undertake a desktop search of historic site uses • raise enquiries about contaminated land issues • advise clients about the liability implications • add appropriate protections if liability issues are identified For further information, see the Practice Note: Land contamination—Law Society practice note on contaminated land. Extent of land contamination in England and Wales There is no accurate record of the amount or location of contaminated land in England and Wales but there have been reports

What causes contaminants to migrate? Contamination from historic uses or pollution spills can migrate off-site or on-site for various reasons: • many types of contaminants are mobile and can migrate for significant distances in groundwater and surface water • new contamination can interact with existing contamination and result in chemical or biological changes • construction work, remediation, intrusive investigations, mining or other disturbance of the ground can mobilise existing contamination or create pathways for the pollution to escape • flooding can mobilise residual contamination Liability regimes that apply Several regimes deal with migration of contaminants: • contaminated land regime • water pollution legislation • environmental damage regulations • environmental permitting • common law claims Contaminated land regime Part IIA of the Environmental Protection Act 1990 (EPA 1990) contains complicated provisions dealing with the escape of contaminating substances to other land. Liability of contaminator for off-site migration The person who ‘caused or knowingly permitted’ the substances to be in, on or under the original land is also liable for the substances that have escaped or migrated

Types of land contamination liabilities There are several types of liabilities associated with land contamination that are summarised in the table below. Regulatory action Third party liabilities Contractual liabilities Other liabilities Planning regime Private nuisance claims for off-site migration Landlord and tenant obligations Clean-up, investigation and monitoring costs Contaminated land regime Public nuisance claims Indemnities in sale contracts Loss of property value Environmental damage regulations Claims relating to negligent advice Indemnities in corporate and sale and purchase agreements Delay or aborted transactions Water pollution legislation Personal injury claims Remediation agreements Accounting provisions Environmental permitting regime Misrepresentation Insurance disputes Negative 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. Question Answer Who is liable? The developer is responsible for ensuring that a development is safe and that the land is suitable for use, see NPPF, P2(1), (4).The Local Planning Authority (LPA) can either use:• planning conditions—to

The remediation industry has undergone rapid change as a result of wide-ranging influences. UK government commitment to sustainable development, pre-Brexit European laws and an increasing understanding of the need to protect groundwater, have all played their part. Consequently, remedial solutions have become more complex, which presents increased technical and legal issues for stakeholders. Approaches to remediation and risk Less ‘dig and dump’ projects and more sustainable remedial solutions Technically and legally, remediation in the 1980s and 1990s was more straightforward than it is today. Contaminated soils were often excavated and sent to inexpensive landfills and groundwater was only treated where impacts affected an abstraction. Client’s responsibility ended when the contaminated soil went into the landfill. Legal implications for the client were limited to the residual contamination around the margins of the excavation and the quality of the imported material that was used to fill the hole. Less reliance on landfill has driven more innovative, sustainable solutions resulting in an increase in on-site treatment based solutions. If contaminated material is removed from site,

General position regarding land contamination and water pollution There is no general obligation on polluters, owners or occupiers of contaminated sites to remediate land or even to notify regulators, unless one of the legal or contractual triggers highlighted in this Practice Note are satisfied, for example: • an environmental permit condition requires the operator to take immediate action or to notify regulators • the land contamination, water pollution or damage to protected nature sites constitutes 'environmental damage' or there is an 'imminent threat' of environmental damage • urgent action is required to ensure the health and safety of employees or others that may be affected by the contamination or pollution This means that in many cases, there is no legal obligation to clean up contaminated sites, never mind to take urgent action. Voluntary urgent remediation Due to the nature of pollution and waste offences, the causer or knowing permitter would be well advised to take urgent action in order to mitigate its liabilities. The Magistrates’ Court Sentencing Guidelines set out various factors for magistrates to take

This Q&A assumes that: • the right of way is a legal easement • the 1961 conveyance conveyed the dominant tenement (so that it did not trigger compulsory first registration of the servient tenement) • the dominant tenement was registered following the 1961 conveyance • the person who would make the application referred to is the current legal owner of the dominant tenement Registration of an easement Under the Land Registration Act 1925 (LRA 1925), the grant (or reservation) of an legal easement over unregistered

Where an uplift clause in a sale is linked to ‘development' under s 55 of the Town and Country Planning Act 1990 (TCPA) does shale gas exploration or extraction amount to 'development'? Section 55 provides: ““development,”

The first step when considering how to withdraw the land from the partnership will be to determine whether the property in question is partnership property. Partnership agreement The partnership agreement will usually set out and clarify what assets and property form part of the partnership property. If any property or assets used by the partnership belong to an individual partner, it may also clarify the terms upon which the partnership is permitted to use such property or assets. Partners are commonly contractually restricted from assigning, mortgaging or charging any asset or property of the partnership. A common clause containing such a restriction can be seen in Precedent: Partnership agreement, clause 8.2.14. If there is a partnership agreement in place, it should be reviewed to see if it identifies

Extent of easement The extent of an expressly granted easement depends on the interpretation of the deed granting the easement, in its entirety, and in its context. Unless clearly directed otherwise, the court will construe the grant in favour of the grantee or owner of the dominant land. Abandonment of easements In order to show that an easement has been abandoned, the servient owner must show that the dominant owner had a clear and fixed intention never to: • exercise the right again himself, or • attempt to pass the right to anyone else The court will not readily find that a right has been abandoned. A period of non-use is evidence, but not conclusive

If the amount of the overage is ascertainable but the payment of the overage is contingent, then stamp duty land tax (SDLT) is due on the amount of the overage. The opportunity to apply to defer payment of the SDLT due on the overage has been lost. The deadline

Provided that the appropriate resolution has been made, the two enabled trustees will be able to execute the transfer (relying on the delegated authority conferred via section 333 of the Charities Act 2011). HM Land Registry’s ‘Charities: advice for applications sent to HM Land Registry (PG14)’, paragraph 8 sets out some useful guidance on the point: ‘Charity trustees may delegate to no

A public or private radio service providing two-way communication, paging and radio signalling on land.