Contaminated Land - Why the buck stops with you
How do you know that your house isn’t built on an old rubbish tip or chemical dump that hasn’t been properly cleaned up? Most people probably assume that their conveyancing solicitor will look into that for them. But he won’t.
During a sale, the selling solicitor will send the purchaser’s lawyer a “Local Authority Search”. Sometimes the client will be sent a copy too, and it will tell you if the house you’re buying is connected to the public sewer, if it’s beside a public road, and if there are Council Repairs Notices.
However it won’t tell you if the land used to be an infilled quarry, or ex-landfill site, or if there are leaky old petrol tanks buried, undetected, in your garden. The only environmental nugget you get is that it tells you whether your house is already on something called the “Contaminated Land Register”. Since only about 9 properties in the whole of Scotland are on that Register, it’s pretty clear that your new house is unlikely to feature.
The Contaminated Land Regime with its “polluter pays principle” went live in the Summer of 2000. It encouraged developers to deal with contamination issues on new build sites, and it created a complicated web of liability in order to determine who, in the worst case scenario, is to foot the bill for cleaning up contaminated sites.
And it could be you.
Why? Well, because no-one else is responsible for it. How is a surveyor going to know, from looking round a house or flat, what the land was once used for and whether there are contamination issues? Your mortgage lender won’t know anything about it either, as they just rely on what the surveyor tells them, and they don’t insist on the solicitors getting environmental searches.
So you might think that your solicitor could, or should, provide some much-needed protection. But “contaminated land” is seen as a specialist legal area and very few solicitors know very much about it, even the basics.
The Law Society was concerned about general levels of ignorance back in 2003, and it sent a “warning card” to all lawyers in Scotland reminding them that the Contaminated Land Regime existed, and pointing out that wherever their suspicions were aroused, they should consider if the client would benefit from getting a separate environmental search in addition to the local authority one.
These tend to cost between £50 and £250 and give details of the environmental setting of the property, as well as site history. The cheaper ones give you pure data (which can be tricky to analyse), whereas the more expensive ones contain a built-in risk analysis of sorts, telling you whether your property is unlikely to be affected by contamination, or whether the risk factors point towards some more detailed investigation being advisable.
Critics say these reports don’t add value because there’s only so much you can tell without actually digging up soil samples. Of course, the contrary view is that they tell you a damn site more than you’ll know without one.
Title deeds used to be a good source of information on former use, but as title registration has become computerised, much of that old data has fallen by the wayside, and is no longer included with the Land Certificate which your solicitor examines during a house purchase.
Without that information in the titles, and without even a basic environmental search to alert your solicitor to potential contamination, how will you ever know of potential problems?
The fact that your survey said nothing about it takes you nowhere. The fact that the Planning Department is apparently happy with the position again takes you nowhere, because it’s not the planners’ responsibility to ensure a site is totally clean. On the contrary, some of the “nightmare scenario” contamination problems that have come to light in England feature executive homes built on apparently cleaned-up development sites.
Some people think that solicitors in general ought to be better geared up in connection with contaminated land – after all, they’re supposed to have a working knowledge of Planning, Building Control, and even central heating regulations – and that they ought to be ordering basic environmental searches as a standard part of the conveyancing procedures, like they tend to do in England.
But for some inexplicable reason, supported by Scotland’s Law Society, there is no requirement for them to do so, and if you are unlucky enough to buy a house on a contaminated site, your chances of successfully suing your solicitor are slim. He’ll blame the surveyor, the surveyor will blame the solicitor, and the mortgage lender and planning department will sit on the fence.
So to avoid problems, the best advice is either to buy your own environmental search, or to check before placing your conveyancing business that your solicitors will order such searches as part of their conveyancing procedures. It’s perfectly possible for completely “innocent” homeowners to be lumbered with a bankruptcy-inducing clean up liability under the Contaminated Land Regime. You’re probably shelling out thousands on Stamp Duty when you buy a house, and the honest truth is that a couple of hundred pounds spent satisfying yourself that there are no environmental nasties lurking underground is, to most people, money well spent.