Spring 2012 Expert Witness Supplement SJ 25 www.solicitorsjournal.com

environment

One of the legacies of being the first nation in the world to industri-alise 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 Environ-ment 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 table on page 27 shows the contaminants most commonly encountered at UK sites, their impact and how they are generally remediated.

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

contract. Solicitors and clients should only work with experienced brownfield special-ists 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 below 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 casesIt 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

Expert evidence is key in contaminated land disputes, but the complex and lengthy nature of such cases means practitioners must ensure they choose a witness team with the right skill set, say Stephen Sykes and Owen Williams

Fitting the bill

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26 SJ Expert Witness Supplement Spring 2012 www.solicitorsjournal.com

environment

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 environ-mental 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 witnessesContaminated 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

Future trends suggest more litigation involving claims against warranties and indemnities as well as general and specialist insurers.

More sites are being designated as contaminated land and the potential for disputes is increasing (Environment Agency, 2009, ‘Dealing with contaminated land in England and Wales’. By the end of March 2007, 781 sites had been determined as contaminated land under part 2A).

Solicitors have been sued for exposing clients to contaminated land liability in conveyancing and other transactions.

Land contamination disputes tend to be highly complicated and drawn out.

Solicitors need to take extra care when selecting expert contaminated land witnesses – they are few and far between and many are still learning their craft.

Risks are best avoided at the outset. By selecting an experienced team of environmental specialists to help clients with their due diligence on site acquisition, planning and development, complex litigation can be avoided.

Contaminated land: key points

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Spring 2012 Expert Witness Supplement SJ 27 www.solicitorsjournal.com

using a growing number of in situ and offsite technologies.

Other skills that are necessary to under-stand the issues and support solicitors deal-ing with disputes relating to contaminated land include: biology, chemistry, engineer-ing, 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 Coun-cil [2009] EWHC 1944, more than 60 people

in the town and its surrounding areas suf-fered 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 guid-ance. The judge observed that

without adequate site and chemical investi-gation – 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 in-cluded: epidemiological: science addressing epidemics/ cluster; toxicology: science relat-ing to poisons and contaminants (cadmium in Corby), how to detect whether these are harming people; foetal medicine and neona-tal: 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.

Stephen Sykes is a non-practising solicitor and chairman of Ashfield Solutions and Owen Williams (pictured) is regional manager at Ashfield Solutions (www.ashfieldsolutions.com)

Common contaminants

Heavy metals and polycyclic aromatic hydrocarbons

Asbestos in buildings and soils

Petroleum products in groundwater

Ground gas

Impacts

Detrimental to human health, associated with cancer-related illnesses

Mesothelioma cancers

Vapours that if inhaled are detrimental to human health and can render water supplies unusable

Risk of asphyxiation and explosion, damaging property and threatening life

Clean-up techniques

Removal or physical encapsulation of impacted soils

Appropriate removal from buildings, soil removal or encapsulation

Pump to surface for disposal and/or treatment

Ensure new builds incorporate gas protection measures (such as venting)

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