We have a similar problem although I think we have less asbestos to deal with. This development was conditioned fully in relation to contaminated land as it was a former sawmill.

This arose from a complaint by the current owner who was originally concerned that he couldn't grow anything and anything that did grow eventually died. I'm no expert on plants as I can usually kill any specimen in a very short time in my care but there was obviously an issue here. We did some research, on the planning file and the analysis that was submitted verified there were no metals or organics.

When we visited the site I did notice sporadic asbestos fragments throughout the site and this would have appeared to be sourced from the topsoil that was used in landscaping the garden.

This gave us evidence enough to get him to sample the material that was used for topsoil (originally scraped from the site). All the chemical analysis is fine and the only issue is the asbestos fragments. We also requested asbestos fibre screening which were also negative.

It would appear that there are many issues between the developer and the owner of the property and we are caught in what I consider to be an ongoing war of attrition between the two and I refuse to get drawn in.

Three Officers have spent an inordinate amount of time dealing with the complainer who has been extremely difficult to deal with. We have to; it's our duty to do so.

Is it a risk now or is it likely to become one in the future? I would not identify this as contaminated land based on the volume of asbestos fragments however; I feel that it's the developer or their insurer to sort out and not the taxpayer. 

There is still a large degree of "caveat emptor" exercisable in this regime.   

So we have taken the stance that it's a claim against the warranty, he can undertake the removal at his own costs or he can make a civil action.

Never the less it is there and I would not want it in my garden after paying £XYZK for a house that should be suitable for use as a domestic dwelling. As usual it's the Councils fault he has asbestos in the garden and no fault of the developer.

Other opinions welcomed.

Robin Mackenzie
Contaminated Land Co-ordinator
[log in to unmask]
Environment Service
Perth and Kinross Council
Pullar House
35 Kinnoull Street
PERTH
PH1 5GD
Mob: 07810057566
Tel Direct Dial: 01738 476443
Fax: 01738 476410
 
-----Original Message-----
From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of Peter Millis
Sent: 14 May 2009 19:27
To: [log in to unmask]
Subject: Re: Asbestos found in garden

------------ Forwarded Message ------------
Date: 14 May 2009 19:25 +0100
From: [log in to unmask]
To: "Arnold, Lindsay" <[log in to unmask]>
Subject: Re: Asbestos found in garden

Lindsay, how do you know the "asbestos would have been obvious"?

I do a lot of landscape work and we often find 'stuff' in gardens that is
buried just under the surface, often under existing turf, and none of it is
obvious unless the whole site is literally scalped. If a developer has
bought a site, say a plot with an existing house on it, and has permission
to demolish the house and build a new house or houses, is he really to be
expected to scalp the entire plot just in case there's something there?
Just think how often unexploded bombs are found just inches under the
surface - potentially dangerous if disturbed, but in no way could they be
consider "obvious" otherwise they would have been removed already. And
think how common it was in the past (and nowadays) for homeowners to just
bury that sort of old rubbish in their gardens - once it's turfed over then
nobody would ever know it's there.

Unless there is some evidence that the developer knew it was already there,
or he put it there and buried it, then it would seem unreasonable to pin it
on the developer, after all, building a house on a site doesn't typically
involve complete scalping and re-turfing of the rest of the site.

Of course the problem now is that the homeowner has brought it to the
attention of the local authority. He could have phoned up an asbestos
removal firm and had it disposed of properly for not much money, and even
asked the developer to pay for it, but by going the route he has, he is now
risking his garden being declared a Part 2A site, and could end up forking
out for the whole area to be completely dug up.....when really there is no
risk unless he smashes up the asbestos and inhales the dust!

As for NHBC, their warranties cover the home. I don't believe there is any
cover for asbestos that is subsequently found buried in the garden - could
it be considered to make the home defective? I don't think so. They do
advice developers on safe removal of asbestos, but if there's no reason to
believe that the site had buried asbestos (as indicated by the planning
details) then there wouldn't be a case for advising on asbestos removal.

I'd say that unless the homeowner has strong evidence that the developer
deliberately buried asbestos, then it may well have been an earlier
occupant of the site who buried it there. In either case, If he has no
proof of the developer putting it there and burying it then I'd say the
homeowner should either take responsibility for it and get rid of it by
paying a licensed firm, or try and find out who in the past might have
buried it and deal with them. Chances of finding out who this might have
been would probably be negligible and it would probably be some old fella
who is nearing the end of his life, if he hasn't already died from old age
(or asbestosis).

Another option would be for someone from the council, to who he pays his
council tax, to visit him and bag up what he has dug out and dispose of it
properly. Job done then, nice and swiftly with no need to waste time and
money on finding someone to pass the buck on to!

Pete Millis
Rottingdean Garden and Landscape Services Ltd
Brighton


And
Centre for Environmental Research
School of Life Sciences
University of Sussex
Falmer
Brighton

--On 14 May 2009 16:35 +0100 "Arnold, Lindsay"
<[log in to unmask]> wrote:

>
>
> A house owner has been digging up spades of asbestos in his garden. The
> house is fairly new and no contaminated land conditions were on the
> planning application in 2006 as no potential issues were raised at the
> application stage.  The developer didn't meet his responsibilities of
> ensuring a safe development as the asbestos would have been obvious as it
> is not a great depth, how it arrived on site is another issue, it is
> possible it could have been brought onto the site.
>
>
>
> The outcome we want is for the garden to be safe and any costs of
> clearing etc not passed on to the owner. Planning's view is that as there
> are no outstanding conditions there is nothing they can do.  What
> channels would anyone suggest we go through?
>
>
>
> Perhaps an NHBC guarantee would cover any remediation?
>
> Would it become a Part2A site?
>
> Maybe it is a civil matter between the owner and developer?
>
> Would the HSE be able to help?
>
>
>
> Basically we want the quickest simplest way to get the developer to own
> up to his responsibility and clear the site.
>
>
>
> Many thanks
>
>
>
> Lindsay Arnold | Contaminated Land Officer| Breckland Council Office:
> 01362 656870
>
> [log in to unmask] | www.breckland.gov.uk
>
>
>
>
>
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