You may be interested in the Law Society of Scotlands version for dealing with residential conveyancing....I don’t think it is as prescriptive as the English warning card...
Conveyancing Transactions
In purchases, heritable securities and leases, solicitors should address the issue of advising the client in relation to:-
1. Potential liabilities associated with contaminated land, taking into account the client's own knowledge and expertise;
2. Raising specific observations with the seller at least if a substantive response is likely.
In all commercial cases, and if contamination is considered likely to be a risk in residential cases, (e.g. redevelopment of brown field land) solicitors should consider:-
3. Advising the client to consider making enquiries of statutory and regulatory bodies (under the changes to the Council of Mortgage Lenders Handbook), in all residential transactions the solicitor will need to ensure that the contaminated land questions for local authorities are on the property enquiry certificate and to consider undertaking an independent site history investigation, e.g. obtaining a site report from a commercial company).
____________________________________
mckayenvironmental
Alison McKay BSc CSci CChem MRSC
Independent Contaminated Land Specialist
Tel: +44 (0)7912 572439
email: [log in to unmask]
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-----Original Message-----
From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of Willcox, Ruth
Sent: 27 February 2014 18:11
To: [log in to unmask]
Subject: Re: UK government pledges £255K for Blanefield land clean-up
True
You may be surprised at how often we find it necessary to supply this information to conveyancing solicitors!
Ruth
Ruth Willcox
Environmental Protection Officer
Environmental Services
Plymouth City Council
Civic Centre
Plymouth
PL1 2AA
T +441752304154
E [log in to unmask]
www.plymouth.gov.uk
-----Original Message-----
From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of CUNDALL, Jonathan
Sent: 27 February 2014 17:20
To: [log in to unmask]
Subject: Re: UK government pledges £255K for Blanefield land clean-up
Hi Ruth,
I agree with you on this. I wonder what liability the conveyancers have with regards to the Law Society's Contaminated Land Warning Card and whether they carried out full due diligence as part of the purchase. At least in some more recent sales, they may have purchased an environmental search (which aren't a 100% guarantee) they will be aware of the issue, or have an insurance cover against this sort of action.
I think, if I were one of these residents and the searches hadn't been carried out, I would certainly be asking why not and looking at their professional indemnity insurance. If it had and the purchaser decided to take the risk, then that is clearly at their own risk.
This provides a good summary of what a reasonable conveyancer should be doing.
http://publications.1fife.org.uk/uploadfiles/publications/c64_LawSociety-ContaminatedLandWarningCard.pdf
It obviously won't cover people who have lived there for a long time, but recent incomers (since 2001) may have some redress.
Regards
Jonathan
-----Original Message-----
From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of Willcox, Ruth
Sent: 27 February 2014 16:54
To: [log in to unmask]
Subject: Re: UK government pledges £255K for Blanefield land clean-up
The big question for me when it comes to Class B liability is whether people are getting the right support and advice at the land and property acquisition stage. I say this because in my view there is a certain amount of over-reliance on limited contaminated land searches and/or enquiries by some owner/occupiers - mainly domestic residential.
We are not, as far as I am aware guided to make allowance for this in any of our judgements, although for Class A persons, we are - sold with reasonable information.
Does this approach sufficiently close any loopholes?
Ruth
Ruth Willcox
Environmental Protection Officer
Environmental Services
Plymouth City Council
Civic Centre
Plymouth
PL1 2AA
T +441752304154
E [log in to unmask]
www.plymouth.gov.uk
-----Original Message-----
From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of Gerry McGarrity
Sent: 27 February 2014 16:30
To: [log in to unmask]
Subject: Re: UK government pledges £255K for Blanefield land clean-up
i've got mixed feelings on it to be honest.
on a personal level, I am pleased for the affected residents as I would be equally scunnered if i were to find myself the same situation. It is hard not to feel empathy for the plight of the induvidual who appears to stand to lose a substantial investment (perhaps a lifetime of savings) through no fault of there own and some historical activity
but i also agree with many of Alison's sentiments in so much that the solution has dealt with the problem outside the established rules (i.e. outwith the realms of PIIA) and this means the validity of the arguments (or otherwise) wrt the site condition have not been tested and to a certain extent the Council and residents have bodyswerved the issue, the due process and the scrutiny which a P2A SPoSH decision would have tested.
I have no idea on the soil concentrations observed at the site in question, but what we are lead to believe is the relevant Council felt the gardens represented SPoSH. It would be interesting to know if this decision was based on a margrinal exceedance of an SGV (or similar , based on NOAEL. ID data base on minimal risk) or whether they were orders of magnitude above this and very possibly would represent SPoSH or used some other scientific test of SPoSH.
I read the HMRC Treasury response to the request for a lanfdill tax exemption, and think it a bit of a red herring TBH - there has been a mechanism for exemptionsto be registered with HMRC which existed for many years. These were applied for by the person carrying out the remediation and this was worked with the landfill operator and this has only recently withdrawn. I'm certain it could be reinstated if there carrying out the remediation was a will. (which there is not) and i accept tat any exemption opens the scope for evasion.
My personal opinion is the Treasury should somehow grant a LTE on sites which are determined as P2A CL, and where there are no Class A appropriate persons and the remediation is to remove the P2A pollutant linkage. - this would limit the unfair LTE and VAT elements which made up >60% of the proposed remediation bill in the Blanefield case.
I feel the "solution" of govenment and LA grants to rectify a problem on an induvidual site (which may or may not actually be SPoSH) is unsatisfactory. It doesn't seem like a wise spend of £600K, especially in austere times when various front line public services are under threat. - this £600k could have been better spent on schools, health service, blah blah blah.
I do feel for the loss of equity in the houses to those in at the Blanefield site , but similarly, there are thousands in the Thames estuary, Devon and Somerset who face similar (or far greater) financial losses to the value of their houses due to the recent flooding (which represents an actual risk and threat) . Who will want to buy a house anywhere that has been recently flooded in such a catastrophic manner, through no fault of their own?
Is it a case of they who shout loudest get funding and the less vocal or less well conected / articulate get left with the consequences?
that is my 2p
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