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Environmental Liabilities and the Professions. Valerie Fogleman Partner and Head of Environmental Liability Group Barlow Lyde & Gilbert solicitors, London. Types of pollution liabilities remediation of current and future pollution incidents/offences

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environmental liabilities and the professions
Environmental Liabilities and the Professions

Valerie Fogleman

Partner and Head of Environmental Liability Group

Barlow Lyde & Gilbert

solicitors, London

slide2
Types of pollution liabilities
  • remediation of current and future pollution incidents/offences
  • remediation of historic pollution incidents
  • common law claims

Professions at risk

  • surveyors
  • accountants
  • solicitors
  • brokers
  • environmental consultants
remediation of current and future pollution incidents offences
Remediation of Current and Future Pollution Incidents/Offences

Unauthorised water pollution

Unlicensed disposal of waste

Pollution prevention and control

  • site condition survey
remediation of historic pollution incidents
Remediation of Historic Pollution Incidents

Part IIA of Environmental Protection Act 1990

  • remediation required whether or not contaminated land is to be developed
  • does not supersede planning regime
  • primarily administered by local authorities with Environment Agency or Scottish Environment Protection Agency for “special sites”
  • local authorities’ strategic plans for inspecting their areas: 1 July 2001 (England), 14 October 2001 (Scotland) and 1 October 2002 (Wales)
slide5
Local authorities must inspect their areas for “contaminated land”, that is, land which, because of substances in, on or under it:

“significant harm is being caused or there is a significant possibility of such harm being caused; or

pollution of controlled waters is being, or is likely to be, caused”

slide6
Pollutant linkage
  • source or potential pollutant
  • pathway
  • receptor or target (people, domestic and commercial animals and crops, wild animals subject to hunting and fishing rights, buildings, designated ecological areas and controlled waters)

Contaminated land + pollutant linkage = significant pollutant linkage

slide7
Risk assessments and remediation standard based on current and likely use of site not requiring planning permission
slide8
Identification of “liability group” of “appropriate persons” for each “significant pollutant linkage”

Class A persons: “caused or knowingly permitted the substances … by reason of which the contaminated land in question is [contaminated] land to be in, on or under that land”

slide9
Cause
  • strict liability

Knowingly permit presence of pollutant

  • knowledge
  • power
  • time
slide10
If Class A person not “found” after “reasonable inquiry”

Class B persons: “owner or occupier for the time being of the land in question” but only liable in respect of owned or occupied land

slide11
Exclusion tests designed to shift liability to most recent “knowing permitter”

Apportionment criteria designed to impose several not joint and several liability

Attribution of responsibility between liability groups

Hardship and other considerations

slide12
Exclusion tests for Class A persons

1. Excluded activities

2. Payments made for remediation

3. Sold with information

4. Changes to substances

5. Escaped substances

6. Introduction of pathways or receptors

slide13
Three month consultation period for “voluntary” remediation

If voluntary remediation; remediation statement

If no voluntary remediation; remediation notice

Fines for non-compliance with remediation notices; up to £20,000 plus up to £2,000 per day for industrial, trade or business premises

No defences but 24 grounds of appeal

Remediation notice suspended during appeal

common law claims
Common Law Claims

Negligence

Rule in Rylands v. Fletcher

Private nuisance

Public nuisance

(Trespass)

slide16
Surveyors

Management of client’s estate or property

  • direct liability for environmental offence, remediation costs or common law damages
  • negligent advice resulting in client being liable for environmental offence, remediation costs or common law damages

Valuations of property

  • negligent advice resulting in incorrect valuation of property due to contamination
slide17
Agency work
  • negligent advice resulting in client inadvertently becoming liable due to acquisition of freehold or leasehold interest in contaminated property
  • negligent advice resulting in client retaining remediation liabilities when disposing of contaminated land
  • leases
    • common covenants
slide18
Accountants

Failure to take account of environmental liabilities when valuing company

Failure to account for environmental liabilities under Financial Reporting Standard 12

Appointment as receiver or liquidator

  • some protection from Part IIA liabilities for insolvent company with assets including contaminated land
  • conflict between insolvency law and environmental law
slide19
Solicitors

Law Society’s warning card on contaminated land liabilities

Failure to:

  • advise client of potential environmental liabilities in residential or commercial transaction
  • recognise that contaminated land liabilities have been shifted to (or remain with) client
  • recognise environmental significance of lease provisions
  • conduct adequate environmental due diligence
  • prepare adequate contractual provisions to allocate liability
  • obtain necessary permit or other approval for client
  • ensure permits are transferred when facility/land is sold
slide20
Brokers

Failure to retain policies against which environmental claims are made

Provide incorrect advice about insurance cover for environmental claim

slide21
Environmental consultants

Failure to advise client of presence or nature of contamination

Provide incorrect advice due to misunderstanding environmental law

Cause contamination during investigatory or remedial work