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Liability

What is a contaminated site?

Who does what?

Why is it important?

What is risk management?

Risk assessment fundamentals

Risk assessment methods

Limitations of risk assessment

What are RA tiers?

Initiation 

Problem Identification

Receptor Characterisation

Exposure Assessment

Toxicity Assessment

Risk Characterisation

RM Decisions

Glossary

FAQ's

 

 

Introduction

This section provides an overview of the possible liabilities of landowners regarding contaminated sites. This is a very complex issue and we recommend that you seek the advice of specialists if you have any concerns over this matter.

At present the landowner is primarily responsible for land contamination, unless it can be proven that another person or company is (or was) responsible for the contamination.

Proof of this can be difficult to obtain, and even if a person or company were found, the existing landowner would still most likely be responsible (at least in part) for any discharges or adverse effects from the contaminated land.

In situations where the company that discharged the contaminants is no longer in existence (or the person cannot be found), the responsibility for the site would fall on the present landowner1.

At present (and in the absence of government policy) a landowner would need to rely on civil court proceedings to address issues of past land contamination. This requires a very high standard of proof about the contamination status of the site, the history of site contamination and the person(s) responsible for the contamination. In most cases this would probably be beyond the resources of a private landowner.

Purchase of Land

There is the potential for a purchaser to unwittingly become the owner of a contaminated site through a land purchase. There is some legal protection for private purchasers through the Fair Trading Act 1986, but again this relies on providing a very high standard of proof that information about the status of the site was withheld from the purchaser by the landowner or its agents (particular the landowner's real estate agent) prior to the purchase.

As a measure of protection, a purchaser should obtain a LIM report from the local territorial authority2 before making an offer on land for sale, and should ask the vendor or his agent to provide details about possible land contamination.

A LIM report will provide information about the land and land use history from council records. However, even with this system in place there may still be situations where a landowner may become responsible for land that has become contaminated by a past (unrecorded) site activity.

As a further step, a purchaser may engage a contaminated land specialist to conduct an assessment of a site prior to purchase. At a basic level this assessment may take the form of a desk-top assessment where council property and consent files, aerial photos, title searches and site inspections are undertaken to provide more detail than what might be available in a LIM report. A more complex assessment may include sampling of soil and water at the site to determine the contamination status of the site.

For some larger commercial property transactions, these further steps are becoming increasingly important and are sometimes required by banks and financial institutes prior to arranging finance.


1Government policy on the liability for contaminated land has not been established. This is expected however to be addressed by the Ministry for the Environment by the end of 2003.

2 The provision of information on or about contaminated land can potentially expose a council to issues of liability should incorrect information be made available to the public. Councils are conscious of this and have put in place systems and procedures to ensure that accurate information is held for each site and that the information is made available in an appropriate form.

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Page last updated: 01 May 2007

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