House on contaminated land. Do I need indemnity insurance or is old NHBC good enough?

Avalanche123

Hello, as the title says, the house we just bought is near/on a previous landfill site. Its a 15 years old property and we have NHBC certificate that expired. When I spoke to the council, they said that the area is still to be investigated so now I don't know if it would be better to get indemnity insurance.

I am a bit confused by all of this as I would imagine that if the council allowed the development, they would have ticked it off (or something to that effect).

The enviro passed after the sellers showed the NHBC so we have all that. 

Any tips?

davidmcn

What exactly did the council say? "Still to be investigated" seems an odd response, unless they just mean it's not on their current register of contaminated land (which almost nothing is, even the stuff which is clearly contaminated!).

If you want to know what was done about it at the planning stage, you'd need to dig out the planning papers - which are probably of an era which won't be readily available online, so may need a visit to the planning dept (or whatever the current distanced equivalent is).

How old is the landfill site? I'd be less concerned if all the search has picked up is a vague reference on a Victorian map.

daveyjp

Contaminated Land has a very precise definition, just because you live near a landfill doesn't mean it is contaminated.

You may be able to check the planning history on your local Council website and read the site investigation reports.

Avalanche123

I am not concerned about the landfill as such but any liabilities.

See here:

The introduction of legislation known as 'part 2A' of the Environmental Protection Act 1990 has resulted in an increased awareness amongst mortgage lenders regarding the possible financial liabilities associated with contaminated land. Land searches can help identify whether or not the land or property already is, or may be in the future, legally determined as contaminated land by the council under part 2A. As a result, it has become common for solicitors and conveyancers to request an environmental search when dealing with land or property transactions.

If, for example, a search reveals the presence of past industrial or landfill activity on the land about to be purchased, or in the vicinity of that land, then it is possible that a source of contamination may be present in the land and may be hazardous to human health and/or the environment.

It is possible that as an owner or occupier of land or property legally determined by the council as contaminated land, could result in the owner or occupier being liable for clean-up costs. There are however many liability exclusions for owners and occupiers who are not responsible for the pollution. Please note that the local authority has the responsibility for making decisions about what may constitute contaminated land, not the company or individual undertaking the environmental search.

Many properties and land within Salford which have had some former use that could have left land contamination, are still bought and sold. The final decision to purchase rests with the potential buyer and mortgage lender who need to be satisfied with the level of risk associated with the transaction.

A 'pass' certificate issued by an environmental search company is not a guarantee that the land or property will not meet the statutory definition of contaminated land. It is only a statement from the company undertaking the search that a review of the data examined did not identify a significant potential concern. Conversely, a 'fail' environmental search does not prove that there actually is a problem.

Search companies may offer to ask the local authority for information which may help reduce concerns and allow a pass certificate to be issued. Information could include more detail about the potential contamination sources or evidence that a site investigation or site remediation has taken place. Where further information is not available the search company may offer to undertake a detailed investigation at the site in order to confirm the presence or absence of significant contamination.

Until local authorities complete their inspections, they will not be in a position to inform you if your land or property could be legally determined as contaminated land. Also the council are unable to provide you with interpretation of the factual information discovered during environmental searches and cannot therefore provide you with a pass or a fail certificate.

Local authorities may charge for providing certain information so please check this directly with the relevant council departments.

The council's reply to my question:

Following our phone call earlier today, I write regarding the above site. 

 

No determinations have been made by this Service under the provisions of the Environmental Protection Act 1990 regarding the classification of contaminated land on this site or sites in the neighbouring vicinity.  

 

However, it is our intention to assess sites in accordance with Contaminated Land Strategy, but at this stage it is not possible to say when.  It is not possible to state at this moment whether or not the above property will be included in future investigations in relation to Part IIA of the Environmental Protection Act 1990.

 

The site of interest has been given a priority status score of 1 in accordance with the above-mentioned strategy. Sites that have been subject to the most contaminative industries and therefore potentially present the greatest risk appear in priority group 1.

So should I get the indemnity of will it be ok since I have the previous owner's NHBC?

davidmcn

What makes you think the (expired) NHBC warranty gives you any protection? If you want to be insured, get the indemnity. But it's a pretty obscure risk unless there's more to it you haven't told us.

Avalanche123

davidmcn said:

What makes you think the (expired) NHBC warranty gives you any protection? If you want to be insured, get the indemnity. But it's a pretty obscure risk unless there's more to it you haven't told us.

No, this is all info I have. The landfill was uncontaminated soil, bricks etc. The area was previously used to to make bricks so it a disused quarry. There was some mining activity in the area previously as well.

The reason I mentioned the NHBC is that the solicitors passed this on enviro search company and that meant the enviro searched were passed.

I don't really know how to asses the risks hence I am asking.

Avalanche123

Can anybody advise me?

Thrugelmir

In a similar position some years ago.  An indemnity policy was put in place to cover the cost of the demolition of the property and rebuilding , together with excavating the entire site to a given depth and replacing the soil.  

Avalanche123

Thrugelmir said:

In a similar position some years ago.  An indemnity policy was put in place to cover the cost of the demolition of the property and rebuilding , together with excavating the entire site to a given depth and replacing the soil.  

Thank you! Who would you recommend as a provider?

Did you also pass the environmental search?

Will need to look into this.

withaspritz

Avalanche123 what does planning say in terms of the remedial works done on the houses? There should be some info in there, although 15 years ago some data may be incomplete.  Do you know when the tip closed prior to the house being built 15 years ago? 

Avalanche123

withaspritz said:

Avalanche123 what does planning say in terms of the remedial works done on the houses? There should be some info in there, although 15 years ago some data may be incomplete.  Do you know when the tip closed prior to the house being built 15 years ago? 

I have contacted the Environmental Agency and received this answer:

The licence shows that the landfill was only permitted to take inert waste, specifically uncontaminated earth and excavation waste, bricks, stones, concrete, breeze blocks, building sand, gravel tiles, ceramics, slate and inert foundry sand.

According to our records, ownership of the site was transferred to the Council in the early 2000s and the site was restored through the import of inert soils and other material compliant with the licence during 2003-2004.

As the planning permission is from 2001( took some time to build), I think that was the soil for the new built.

It basically boils down to this question: With the Enviro searches passed (after the sellers provided the NHBC), what is the likelihood of any future issues?