Court ruling creates land contamination risk uncertainty for property and land transactions

Following a controversial decision by the Court of Appeal with a land contamination case, Landmark Information believes there will be greater uncertainty for both current and prospective land and property owners and purchasers, and detailed due diligence is a priority, particularly for those conducting a new transaction.

The Court of Appeal ruled that a Local Authority cannot be held liable for pollution it caused on a piece of land due to the Authority having restructured. The Local Authority in question is now a distinct entity from the original polluter (Powys County Council v Price & Anor).  While positive news for Local Authorities who may be able to pass responsibility onto land owners, it may create a potential issue for the wider public.

This highlights the importance of thorough due diligence when buying or leasing homes, buildings or sites. It must not be assumed that because a site was formally owned by Local Authority, that they are responsible for cleaning up any identified land contaminants under the ‘polluter pays’ principle.

Rob Phillipson, Sales & Product Director at Landmark Information said: “The impact from the decision by the Court of Appeal will cause some Local Authorities to revaluate their Contaminated Land liabilities, who may determine that responsibility instead lies with the owner or occupier. Our advice is ‘buyer beware’ and to ensure that thorough land contamination due diligence is undertaken via conveyancing solicitors, without hesitation, to ensure clients have the full picture of any potential risks at the outset.

“Homeowners, landowners or occupiers could now find they are at greater risk of being responsible for pollution they did not cause. It is therefore imperative that the correct searches are undertaken, and further environmental analysis undertaken should a search identify any potential concerns.”

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