Fitting the bill

One of the legacies of being the first nation in the world to industrialise is that the UK has inherited more than 100,000 sites contaminated with industrial pollutants (Environment Agency, 2002, 'Dealing with contaminated land in England'). This problem affects around two per cent of our land mass. The Environment Agency estimates up to 20,000 sites in England are currently posing unacceptable environmental risks (2005, 'Indicators for land contamination').

Brownfield sites

A brownfield site is one that has been previously developed; a contaminated site is one causing (or is likely to cause) harm to people, property or the environment because pollutants are mobile or mobilised. It is not every brownfield site that is contaminated, or every contaminated site that poses a risk of liability to owners, occupiers and developers.

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 https://spatial-economics.blogspot.com/2011/10/camerons-brownfied-plan.html).

Professionals at risk

All professionals involved with contaminated land development are potentially at risk if they are negligent or in breach of contract. Solicitors and clients should only work with experienced brownfield specialists at the outset so that the risks associated with sites are understood and mitigated cost effectively.

Contamination issues tend to loom largest in the course of the sale and purchase process. This is when a price may need to be set to address significant contamination issues '“ for example, so that the purchaser can negotiate a suitable price cut. Mistakes by solicitors in transactions include: failing to commission a suitable contaminated land report; failure to ascertain risks relating to properties formerly owned by companies whose shares are being acquired; and poor drafting of indemnities (for example, without regard to available environmental information or the input of scientific advisers).

Other parties and professionals can also incur liability: environmental consultants who fail to spot pollution problems; remediation contractors who exceed clean-up cost estimates in order to maximise their profit are also at risk; professional indemnity and other insurers who often 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.

Brownfield development risks

The diagram above shows how sources of contamination (pollution from a UST and contamination present in groundwater) can travel along 'pathways' and have deleterious impact on 'receptors' (people, rivers, groundwater, buildings, etc.):

Increasing cases

It is hard to gauge how much environmental litigation relates to contaminated sites because many cases are settled before they reach court. Anecdotal information suggests a steadily growing number of cases relating to contaminated sites.

There has been a steady increase in regulatory liability (cleaning sites so that they are safe) and common law claims (by neighbours for property damage, loss of value, bodily injury, etc.). We are also starting to see more insurance claims:

• Public liability policies '“ in certain circumstances where sites are impacted by pre-1990 contamination, with liability resulting, claims can be made against old public liability (PL) insurance policies. This is called insurance archaeology in the USA where it keeps plenty of attorneys and insurance recovery specialists busy. Some large claims (more than £10m) are being brought against insurers who wrote PL policies in the UK in the 1980s, for example where pollution has migrated from sites that have been remediated negligently.
• Environmental insurance policies '“ specialist policies are also being claimed against and creating work for environmental litigators. Cases such as these require input from underwriting and broking experts who can provide expert opinion about the breadth of coverage intended by these old policies.

Environmental laws continue to evolve. Part IIA is the main statute in England and Wales and its supporting guidance for regulatory authorities is currently being revised. DEFRA recently completed the first detailed review of part IIA since its introduction in April 2000. The review found that the primary legislation remains fit for purpose, but the accompanying detailed and complex statutory guidance needs to be simplified and changed because it has created considerable uncertainty for regulators (local authorities and the Environment Agency) and regulated alike. At the time of writing the new guidance has not been released but it is expected imminently. It is expected to encourage regulators to concentrate their resources upon those contaminated sites that pose significant risks to human health and the environment.

Industry best practice guidance is always developing for scientists. A decade ago, for instance, it would have been unusual to analyse soils for specific polycyclic aromatic hydrocarbons and asbestos. Today, this is considered standard practice and not to do this analysis would almost certainly be negligent.

The role of expert witnesses

Contaminated land is a complex and diverse subject requiring a multitude of skills to support clients. To be truly expert in this field, the following skills are required across a team (they will rarely be found in a single individual): toxicology: the impact of pollutants on human health; geology: the mobility of contaminants through underground strata; hydrogeology: the impact of contamination upon groundwater; ecology: the impact of contaminants on fauna and flora; and remediation: the treatment of contaminants using a growing number of in situ and offsite technologies.

Other skills that are necessary to understand the issues and support solicitors dealing with disputes relating to contaminated land include: biology, chemistry, engineering, risk communication and (as noted above) environmental insurance expertise.

The cause célèbre Corby case concerned the remediation of a former steelworks. In Corby Group Litigation v Corby District Council [2009] EWHC 1944, more than 60 people in the town and its surrounding areas suffered from limb reduction birth defects. The judge held the local council that remediated the site liable in public nuisance, negligence and breach of statutory duty.

The judge was highly critical of the expert contaminated land witnesses appointed by both sides in this area. He found some of the expert evidence difficult to comprehend, with inadequate site investigation and the application of inappropriate technical guidance. The judge observed that without adequate site and chemical investigation '“ of the presence, location and levels of a particular contaminant '“ a competent landowner would be 'proceeding to a large extent in the dark'.

Other experts deployed in Corby included: epidemiological: science addressing epidemics/ cluster; toxicology: science relating to poisons and contaminants (cadmium in Corby), how to detect whether these are harming people; foetal medicine and neonatal: diagnosing and managing abnormalities in the unborn child; and air pollution and safety risk management: how polluted dust could reach the residents of Corby.

Hence, appointing an expert witness team with the right skill set that fits the specific and often complex issues involved in the case is of paramount importance.