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Tue 5th Jan 2010

Back in January I had the pleasure of attending a conference on contaminated land, co-organised by DoE at Belfast's Waterfront Hall. A quick look at the delegate list was telling.

Among the consultants, council employees and DoE staff, those actually involved in the business of buying, developing and selling properties were conspicuous by their absence.

This is not intended as criticism of players in the property market since they are all busy enough riding the property boom that we continue to enjoy.

This event was also not the only one of its type recently.

My concern is that there may be a lack of awareness amongst some of those closely involved with the regeneration of Belfast and other urban areas-to the risks posed by contaminated land.

Environment and health risks are a concern, but the immediate risk is undoubtedly financial.

Unlike GB, Northern Ireland does not have specific legislation covering contaminated land. The legislation (Part 3 Waste and Contaminated Land (NI) Order 1997 — "Part 3" for short) is on the statute books but has not been enacted. As and when it comes into force, it will apply to any contamination, whether from 1907 or 2007, so its implications must be considered now.

Many will be familiar with the "polluter pays" principle. If someone causes an oil spill or dumps waste illegally they will generally pay for the clean-up.

Part 3 is different Although the polluter can be liable for clean-up costs, owners and occupiers of land contaminated by previous occupants can also be in the firing line. If, as a land-owner or occupier, a person is aware of contamination and has the power to remove or prevent it, they too can be responsible for clean-up costs (so-called "knowing permitted”). Often the original polluter no longer exists and costs fall on the present owner. Just because contaminated land is sold on does not necessarily absolve the seller. In commercial transactions the law assumes that a purchaser is aware of potential contamination risks and takes responsibility. But for residential purchasers this assumption is not made and it is possible for a developer to retain responsibility, should a problem arise.

Planners are ahead of the game. The principles of Part 3 are being applied in planning conditions for brownfield sites such that investigations and remediation may need to be carried out before development begins. This can significantly increase development costs and delays. The issue has been further complicated in the North West by naturally occurring "contaminants", such as nickel in soils.

To date, DoE has been reluctant to develop a practical approach to assessing such risks, forcing developers to carry out costly remediation schemes that present no more risk than vast areas of already developed land. The key to minimising costs and risks is preparation. Obtaining expert legal advice, environmental surveys and assessing costs and risks up-front when acquiring property will prevent unpleasant surprises later on. Andrew Ryan is an Environment Solicitor at Carson McDowell. For more information on Andrew's areas of expertise go to www.carson-mcdowell.com.

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