This document discusses contaminated land and the risks involved for various professionals. It notes that the UK has over 100,000 contaminated brownfield sites due to its early industrialization. All professionals involved in contaminated land development are at risk of liability if negligent, including builders, planners, surveyors, and insolvency practitioners. Expert evidence is key in contaminated land disputes but experts must have skills in areas like toxicology, hydrogeology, and remediation. The complex nature of such cases means choosing an expert team with the right experience.

1. environment
Fitting the bill
have to pick up the tab; builders who sell
sites with latent contamination problems
that give rise to blight for property owners;
planners, lenders, insolvency practitioners
and surveyors are also exposed.
Expert evidence is key in contaminated land disputes,
Brownfield development risks
but the complex and lengthy nature of such cases
The diagram below shows how sources
means practitioners must ensure they choose of contamination (pollution from a UST
a witness team with the right skill set, say and contamination present in groundwater)
can travel along ‘pathways’ and have
Stephen Sykes and Owen Williams deleterious impact on ‘receptors’ (people,
O
rivers, groundwater, buildings, etc.):
ne of the legacies of being the first contract. Solicitors and clients should only
nation in the world to industri- work with experienced brownfield special- Increasing cases
alise is that the UK has inherited ists at the outset so that the risks associated It is hard to gauge how much
more than 100,000 sites contaminated with with sites are understood and mitigated environmental litigation relates to
industrial pollutants (Environment Agency, cost effectively. contaminated sites because many cases
2002, ‘Dealing with contaminated land in Contamination issues tend to loom largest are settled before they reach court.
England’). This problem affects around two in the course of the sale and purchase Anecdotal information suggests a steadily
per cent of our land mass. The Environ- process. This is when a price may need to growing number of cases relating to
ment Agency estimates up to 20,000 sites in be set to address significant contamination contaminated sites.
England are currently posing unacceptable issues – for example, so that the purchaser There has been a steady increase in
environmental risks (2005, ‘Indicators for can negotiate a suitable price cut. Mistakes regulatory liability (cleaning sites so that
land contamination’). by solicitors in transactions include: failing they are safe) and common law claims
to commission a suitable contaminated (by neighbours for property damage, loss
Brownfield sites land report; failure to ascertain risks of value, bodily injury, etc.). We are also
A brownfield site is one that has been relating to properties formerly owned starting to see more insurance claims:
previously developed; a contaminated site by companies whose shares are being
is one causing (or is likely to cause) harm acquired; and poor drafting of indemnities  Public liability policies – in certain
to people, property or the environment (for example, without regard to available circumstances where sites are impacted
because pollutants are mobile or mobilised. environmental information or the input of by pre-1990 contamination, with liability
It is not every brownfield site that is scientific advisers). resulting, claims can be made against old
contaminated, or every contaminated site Other parties and professionals can also public liability (PL) insurance policies.
that poses a risk of liability to owners, incur liability: environmental consultants This is called insurance archaeology
occupiers and developers. who fail to spot pollution problems; in the USA where it keeps plenty of
The table on page 27 shows the remediation contractors who exceed clean- attorneys and insurance recovery
contaminants most commonly encountered up cost estimates in order to maximise specialists busy. Some large claims (more
at UK sites, their impact and how they are their profit are also at risk; professional than £10m) are being brought against
generally remediated. indemnity and other insurers who often insurers who wrote PL policies in the UK
The coalition government abolished the
national target to build at least 60 per cent
of new housing on brownfield land, some
of which will be contaminated. A plan has
been announced to release thousands of
acres of publicly owned brownfield land to
house builders who will only pay for the
land once the homes have been sold. The
government expects this to result in 200,000
new homes. It remains to be seen if this is
achievable in practice, but it seems likely
brownfield redevelopment will continue
apace for the foreseeable future (see http://
spatial-economics.blogspot.com/2011/10/
camerons-brownfied-plan.html).
Professionals at risk
All professionals involved with contami-
nated land development are potentially
at risk if they are negligent or in breach of
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2. environment
in the 1980s, for example where imminently. It is expected to encourage
Contaminated land: pollution has migrated from sites that
have been remediated negligently.
regulators to concentrate their resources
upon those contaminated sites that pose
key points  Environmental insurance policies –
specialist policies are also being claimed
significant risks to human health and
the environment.
 Future trends suggest more litigation against and creating work for environ- Industry best practice guidance is always
involving claims against warranties mental litigators. Cases such as these developing for scientists. A decade ago, for
and indemnities as well as general and require input from underwriting and instance, it would have been unusual to
specialist insurers.
broking experts who can provide expert analyse soils for specific polycyclic aromatic
 More sites are being designated
as contaminated land and the opinion about the breadth of coverage hydrocarbons and asbestos. Today, this is
potential for disputes is increasing intended by these old policies. considered standard practice and not to
(Environment Agency, 2009, ‘Dealing do this analysis would almost certainly
with contaminated land in England
Environmental laws continue to evolve. be negligent.
and Wales’. By the end of March 2007,
781 sites had been determined as Part IIA is the main statute in England
contaminated land under part 2A). and Wales and its supporting guidance for The role of expert witnesses
 Solicitors have been sued for exposing regulatory authorities is currently being Contaminated land is a complex and
clients to contaminated land liability in revised. DEFRA recently completed the diverse subject requiring a multitude
conveyancing and other transactions.
 Land contamination disputes tend to be first detailed review of part IIA since its of skills to support clients. To be truly
highly complicated and drawn out. introduction in April 2000. The review expert in this field, the following skills
 Solicitors need to take extra care when found that the primary legislation remains are required across a team (they will
selecting expert contaminated land fit for purpose, but the accompanying rarely be found in a single individual):
witnesses – they are few and far between
detailed and complex statutory guidance toxicology: the impact of pollutants on
and many are still learning their craft.
 Risks are best avoided at the outset. needs to be simplified and changed because human health; geology: the mobility of
By selecting an experienced team it has created considerable uncertainty contaminants through underground strata;
of environmental specialists to help for regulators (local authorities and the hydrogeology: the impact of contamination
clients with their due diligence on site Environment Agency) and regulated alike. upon groundwater; ecology: the impact
acquisition, planning and development,
complex litigation can be avoided. At the time of writing the new guidance of contaminants on fauna and flora; and
has not been released but it is expected remediation: the treatment of contaminants
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3. environment
using a growing number of in situ and in the town and its surrounding areas suf- without adequate site and chemical investi-
offsite technologies. fered from limb reduction birth defects. The gation – of the presence, location and levels
Other skills that are necessary to under- judge held the local council that remediated of a particular contaminant – a competent
stand the issues and support solicitors deal- the site liable in public nuisance, negligence landowner would be “proceeding to a large
ing with disputes relating to contaminated and breach of statutory duty. extent in the dark”.
land include: biology, chemistry, engineer- The judge was highly critical of the expert Other experts deployed in Corby in-
ing, risk communication and (as noted contaminated land witnesses appointed by cluded: epidemiological: science addressing
above) environmental insurance expertise. both sides in this area. He found some of epidemics/ cluster; toxicology: science relat-
The cause célèbre Corby case concerned the expert evidence difficult to comprehend, ing to poisons and contaminants (cadmium
the remediation of a former steelworks. In with inadequate site investigation and the in Corby), how to detect whether these are
Corby Group Litigation v Corby District Coun- application of inappropriate technical guid- harming people; foetal medicine and neona-
cil [2009] EWHC 1944, more than 60 people ance. The judge observed that tal: diagnosing and managing abnormalities
in the unborn child; and air pollution and
safety risk management: how polluted dust
Common contaminants Impacts Clean-up techniques
could reach the residents of Corby.
Heavy metals and Detrimental to human health, Removal or physical Hence, appointing an expert witness team
polycyclic aromatic associated with cancer-related encapsulation of impacted
with the right skill set that fits the specific
hydrocarbons illnesses soils
and often complex issues involved in the
Asbestos in buildings Mesothelioma cancers Appropriate removal from
case is of paramount importance.
and soils buildings, soil removal or
encapsulation
Stephen Sykes is a non-
Petroleum products in Vapours that if inhaled are Pump to surface for disposal practising solicitor and
groundwater detrimental to human health and/or treatment
and can render water supplies chairman of Ashfield
unusable Solutions and Owen
Risk of asphyxiation and Williams (pictured) is
Ground gas Ensure new builds incorporate
explosion, damaging property gas protection measures (such regional manager at
and threatening life as venting) Ashfield Solutions (www.
ashfieldsolutions.com)
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