By Richard Hepburn, Managing Director, Millar & Bryce
IN the aftermath of the recent “blue water” school scandal in Coatbridge, and reports that potentially contaminated sites in Scotland may be going unrecorded by the authorities, the level of political interest focusing on this important area has been encouraging.
The discussion, however, provides a timely reminder about how inadequate the current process is, in terms of recording, monitoring and giving easy access to information on potentially contaminated land, in way that gives certainty to buyers and sellers.
In 2009, The Scottish Environment Protection Agency (Sepa) published the State of Contaminated Land in Scotland Report. It estimated that around 67,000 sites in Scotland could potentially be impacted by land contamination. It also recommended that each site be inspected by each local authority.
However, in the past five years only 18 of these sites have been reported to Sepa as being contaminated. Can there really be so few contaminated sites of concern in Scotland despite its huge post-industrial legacy? What is more likely is that financial pressures on local authorities since 2008 have been significant, and this area looks like one that hasn’t been the highest priority.
It is telling, for example, that Dumfries and Galloway, hardly an industrial heartland, has eight sites registered as contaminated (out of a total of only 21 on the register across the whole of Scotland) whilst Glasgow has none. Little wonder it’s attracting political attention.
For a property transaction, if it is one of the 21 registered sites, then the current legal process will identify this. However, at Millar & Bryce, a leading search provider, we support more than30,000 residential transactions a year across Scotland and we have yet to come across one of these sites.
With so few sites on this register how can you be sure your prospective property isn’t in a location which could be designated as contaminated in the future? If this does happen, as the property owner, you could be financially liable under the legislation for clean-up if the original polluter can’t be found.
England and Wales previously faced very similar issues. Local authorities were unable to survey all of the at-risk sites and this placed a risk on property transactions. The Law Society for England and Wales recognised this and advised solicitors not to take the contaminated land register at face value – as it could mean that the site hasn’t been inspected, or that no conclusion about the site reached.
As a result, solicitors in England and Wales are using a number of insurance-backed diligence reports, now common in more than 75 per cent of residential transactions, which use a wide range of public and private data sources to give an assessment of a specific property or site detailing if it is at risk of contamination, alongside other issues such as flooding.
Such diligence is widely used in commercial property transactions in Scotland but very rarely in residential – that needs to change. Homeowners need to be protected and Scotland’s public bodies should be working in partnership with industry to make that happen.
In England and Wales the Environment Agency has been proactive in sharing data, allowing the detailed reports to be compiled to support residential property transactions. The same should be happening in Scotland, where Sepa should open up access to its datasets.
The blue water scandal has shone a light on contaminated land. It’s high time we all worked together to ensure that the general public have available, accessible information that gives genuine protection to the homebuyer. Scotland cannot any longer provide second-class assurance over land that may hold hidden risks from our industrial past.
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