10 Things that Developers should know about Environmental Law

Originally published in February 2003

This short article cannot deal with every aspect of Environmental Law, however we have summarized below 10 key points which developers should be aware of:-


Prior to purchasing any land for development, it is very important that the developer establishes whether the site falls within the definition of 'contaminated land' in Part IIA of the Environmental Protection Act 1990 and, if so, obtain professional advice as to who will be liable for the site remediation. 'Contamination' depends on the physical characteristics of the site, its current use and the potential (end use) receptors that may suffer harm, for example, children in a residential area. The contaminant must either be causing harm to the receptor or there is a significant possibility of such harm being caused by the contaminant to that receptor. The Act, therefore, does not seek to impose strict liability just because the site contains a contaminant that exhibits harmful qualities, a link must be demonstrated between the source and the potential receptors. Furthermore, the Act does not impose uniform remediation standards.

Landfill Tax

Where contamination of a development site is a constraint and needs to be removed, the developer can avoid paying landfill tax on those materials that need to be transported to a landfill site. The Landfill Tax exemption must be applied for at least 30 days prior to the work being undertaken.

Flood risk

If flood alleviation measures are requested as a condition of the development, the developer may be expected to fund these measures in advance of construction of the development. In any event, insurance for the property could be difficult to obtain if these measures are not in place if the property would be subject to flood risk.

Environmental Impact Assessment ('EIA')

For many developments there is a legal obligation to provide an EIA to accompany the planning application (outline and detailed). There are three key statutory determination periods that a developer should be aware of when programming a project that requires an EIA:-

where a request for a screening opinion (to determine whether an EIA is required) has been submitted to the local planning authority or the Secretary of State, they are allowed up to three weeks to come to a decision regarding whether an EIA is required. It is prudent to confirm that the planning case officer has delegated powers to make the screening decision...

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