Poison in the park

Contaminated Land
March 6, 1998

In 1971, Lord Denning and his colleagues upheld an award of some £2,000 damages to Mrs Sadie Dutton against a local authority for its having allowed the house, which she subsequently bought, to be built on top of an old rubbish tip. The risk to her health which Lord Denning identified was not, however, derived from the contents of the tip, but its compressibility and the perceived threat of collapse of the building. The possible dangers from substances in a buried tip were not a significant issue at that time.

Around 1977, the public in the United States became aware of such dangers. Following reports of serious health problems among the residents of an estate built over the infilled Love Canal in Niagara City, New York, it was discovered that the canal had been used as a dump for chemicals and some of the drums had started to leak. The US government took steps to control future dumping of hazardous waste, but also realised that many existing or disused tips or industrial sites were likely to be already contaminated to some degree with substances which could pose a health hazard, and that substances could be present not just through deliberate dumping, but also through spillage or leakage, or even transportation by wind or water. The Comprehensive Environmental Response, Compensation and Liability Act was enacted in 1980 to deal with historic contamination. The US government adopted the "polluter pays" principle as the basis of the act, but itself accepted the role of "superfund" or insurer of last resort for remediation costs where no polluter could be identified or held liable, and the present owner was able to establish an "innocent purchaser" defence.

In the UK, the government established an Inderdepartmental Committee on the Redevelopment of Contaminated Land, which produced a series of reports from about 1978 onwards. It declined to take on the role of insurer of last resort, but has funded some remediation through specific grant schemes.

The UK business community was much slower to appreciate the significance of what was happening in either the US or at home. Lloyd's syndicates blindly took on the US environmental liabilities, and developers continued to redevelop old industrial sites. Lloyd's discovered painfully the effects of the US experience, but it was not until the Environmental Protection Act 1990, when the government included provisions in section 143 for local authorities to establish registers of potentially contaminated land, that the business community woke up to the implications at home. Section 143 was never brought into force but, as Paul Syms notes in this book, the act alerted property valuers to the fact that the possibility of contamination may have a serious effect on property values.

The problem of how to deal or come to terms with historically contaminated land has become increasingly accepted as a multi-disciplinary topic. The initial self-importance of a few individual specialisms has been overtaken by an appreciation that a very broad spectrum of expertise needs to be applied, and that many important decisions have to be made by non-specialists. All those involved need an adequate appreciation of the whole picture and the perspectives offered by the different specialists. Syms is a valuer in private practice, as well as being Incorporated Society of Valuers and Auctioneers' visiting professor of land and property at Sheffield Hallam University, and he addresses the topic from a valuer's perspective. His book will be of immediate application for valuers, surveyors and property developers, but it will also be relevant to the education of lawyers, engineers, architects, chemists, biologists, insurers, bankers, economists and politicians. It will help some to learn not just to ask the right questions, but how to do something with answers that are not plain black and white, or brown and green.

The usual response of the business community has been either to try to keep away from land with any suspicion of contamination, or to remediate contaminated sites by shifting all suspect material off site to elsewhere. Neither strategy is environmentally sustainable. Eventually we have to come to terms with knowingly using brownfield sites with some contamination remaining.

Syms has, according to the flyleaf, a commitment to seeing brownfield sites reused, and in this book he makes a significant, some might say courageous, contribution towards such reuse. By explaining the evolution of policy and legislation (particularly between 1990 and 1996), the available methods of investigation and remediation and the measurement of perceptions of risk, he develops a measured, rational and informed approach to valuing sites with some degree of contamination, before and after remediation, based on a risk or stigma assessment model, which he illustrates by a number of case studies. This enables not merely valuation of sites, but also sound business decisions on remediation. As he explains, inappropriate site treatment, regardless of cost, may not produce any improvement in site value.

On the down side, I was sorry to find the comparative survey of experience and responses in other countries so brief. The treatment of Part IIA of the Environmental Protection Act 1990 (inserted by the Environment Act 1995) is sketchy, and I was not wholly convinced by the approach on pages 188/9 to discounting remediation costs at the end of an existing use. But these are minor criticisms. Overall, this is a well-written, researched and referenced book. It is very good value from a valuer.

John Barber is lecturer in construction law, King's College London.

Contaminated Land: The Practice and Economics of Redevelopment

Author - Paul Syms
ISBN - 0 632 04134 X
Publisher - Blackwell Scientific Publications
Price - £39.50
Pages - 308

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