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
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.