Contaminated Land Regeneration: the full specialist legal service

Planning policy increasingly drives remediation, even of grossly contaminated sites. This is no bad thing. Proceeding via the development planning system gets contaminated land remediated and restored to beneficial use in an orderly fashion and to a standard which aligns with a redevelopment proposal and (therefore), critically, a development financial appraisal. In other words, it is remediation with a commercial purpose and, if the sums add up, a beneficial financial outcome (rather than a liability) for the developer.

At the other extreme, contaminated land becomes a major liability if it is not ‘managed’ in this orderly way. Such situation do exist of course. The trick is making sure it does not happen to you.

Even in cases of orderly, managed, regeneration, if care is not taken at every step things can get out of hand. There are many factors involved, but in essence a successful regeneration project has 5 core characteristics:

  • The Remediation Strategy is cost-effective and aligned with the Development Financial Appraisal
  • The final outcome is a site which is both ready for construction and free of residual liability threat
  • The asset has gone from liability to enhanced value status commensurate with the Development Financial Appraisal
  • There is regulatory buy-in at every stage, including sign-off on the validated remediation
  • Readiness for Sale

To achieve this is not an easy ask – especially in grossly contaminated sites with potential onsite and offsite impacts. However – that is the job of the regeneration specialists, including the lawyers. It requires a deep specialism in pollution, waste and contamination laws, and the ability to deliver a whole range of key legal outcomes from project inception (or earlier at site acquisition) through to project completion.

KEY SERVICE DELIVERABLES TO ACHIEVE THE OBJECTIVES

Managing historic contamination legacy liability:

  • Ensuring correct legal focus of site investigation instructions
  • Correct legal interpretation of site investigation data
  • Identification of priority issues – liability exposure irrespective of redevelopment
  • Identification of key legal exposures which will create redevelopment abnormal costs
  • Legal assessment of remediation options: risk v. cost v. legal exposure

Site acquisition related services:

  • Guidance on correct Heads of Terms (avoiding later arguments in main contract)
  • Commercially reasonable but protective specialist clauses in purchase contract
  • Sense-check of Vendor site data
  • Purchaser pre-acquisition site investigation and due diligence
  • Legal support on valuation issues and any price reduction strategy

Site Investigation related services:

  • Procuring the right consultants and fixing their remit
  • Securing contractual recourse and insurance for you and future investors
  • Drilling Contracts
  • Design responsibility
  • Clear legal interpretation of lengthy SI reports
  • Identification of the ‘real’ risk areas and priorities for remediation
  • Procuring necessary clarifications of SI conclusions
  • Assessing remediation strategies against legal obligations
  • Assessing remediation strategies against investment market demands

Funding related services:

  • Management of funder relationship as regards contamination risk
  • Drafting of correct and proportionate message to funders
  • Management of funder reporting
  • Negotiation of sensible lending agreement clauses related to contamination risk/remediation performance

Contamination and Planning Applications:

  • Management of risk assessment understanding of planning authority
  • Advice on terms of contamination/remediation planning conditions
  • Avoiding ‘blank cheque’ planning condition on remediation
  • Ensuring remediation planning obligations proportionate to risk
  • Avoiding expensive groundwater clean-up
  • Advising on implications of planning conditions

Environmental Impact Assessment – legal:

  • Early advice on applicability of EIA regime to the project
  • Legal review of EIA scoping and Environmental Statements
  • Avoiding later traps of challenge (NGOs, competitors)

Regulatory Permits for remediation and redevelopment:

  • Advice on permitting requirements across project
  • Advice on environmental permits aligned with remediation needs
  • Assistance in permit applications and negotiations with Environment Agencies
  • Management of overall project permits, variations, renewals
  • Assist/check remediation contractors’ permits fit remediation demands

Application of waste law and definitions:

  • Part of the ‘permits’ role
  • Excavated contaminated soils and groundwater = hazardous waste in law
  • Advice to maximise regulatory permission to treat on site and reinstate treated soils
  • Advice to minimise expensive offsite hazardous landfill or other disposal routes
  • Advice to client and contractor team on UK waste definition/recovery laws

Remediation/Construction Phase Contracts:

  • Professional team contracts: scope of services and warranties
  • Remediation tenders and contracts
  • Civil engineering earthworks contracts
  • Piling contracts – especially avoiding pollution pathway creation/indemnities
  • Design responsibility drafting
  • Concrete supply contracts
  • Warranties for investors and end users of development
  • Short-term Pollution Liability Insurance contracts (remediation/construction phases)

Monitoring and regulatory validation:

  • Guidance on pitfalls of inadequate monitoring
  • Advice on execution of sound monitoring and data recovery
  • Regular engagement with critical regulators to ensure early sign-off
  • Co-ordination of remediation works validation reports and regulator sign-off

Project Data Room and External Sales Data Room:

  • Provide client with correct template for data rooms
  • Avoid fatal error of not building data room from day 1 of site investigation phase
  • Structure investor-friendly data room
  • Monitor upload and organisation of key data throughout site investigation/remediation/construction phases

Sales Contracts specialist input:

  • Contracts of Sale to Investors
  • Contracts of Sale and Lease to long term users
  • Management of Data Room to ensure ‘clean break’ for developer from historic contamination liability

Guidance and specialist drafting can be provided to any one of the different ‘players’ in these contractual scenarios – sellers of contaminated land, purchasers, developers, funders and other investors, contractors, professional teams and end user-occupiers under long leases or FRI occupational leases.