The amended Environmental Protection Act 1994 (“EPA”) came into effect on 2 October 2015. Amongst other things, the EPA was amended in relation to the obligations (and consequences) with respect to the requirement of an owner of land on the Contaminated Land Register (“CLR”) or Environmental Management Register (“EMR”) to give notice of this fact to a prospective buyer of that land.
Previously the EPA required (at section 421) that an owner must provide a buyer with written notice if the land being purchased was on the CLR or EMR prior to a Contract of Sale being entered into.
If such notice was not given, then previously, the buyer would have a right to terminate the Contract at any time up to and including the Settlement Date.
The EPA (now at section 408(5)) allows an owner who has not given the required notice before agreeing to dispose (i.e. sell) of the land to the buyer, to give the notice after the agreement for sale is entered into.
The buyer then has a 21 day period after receiving the notice to terminate their agreement (without penalty). If a buyer does not do so, the Buyer is taken to have waived this right to termination.
The amended EPA has significantly narrowed the termination rights of the buyer (in that the buyer only has a limited period of time in which to terminate). This gives a Seller of land on the CLR or EMR more certainty where they have omitted to give a buyer the required notice.
NOTICE TO BE PROVIDED BY OWNER TO LESSEE OR PROPOSED LESSEE OF A LEASE
As with selling property, there are similar provisions regarding the giving of notice to prospective or existing tenants of land that is recorded on the Contaminated Land Register. The Environmental Protection Act 1994 (EPA) now at section 407 describes the circumstances in which notice is to be given.
If there is a lease in effect and the land on which the leased property is situated on is recorded on the CLR, then the owner of the land (i.e. the lessor) must within 20 business days after the land becomes recorded on the CLR give the lessee written notice of that recording .
If, on the other hand, an owner is purporting to enter into a new lease with a tenant and the land is already recorded on the register, then the owner must give written notice to the lessee regarding the recording on the register before the lease is entered into.
If the owner does not give the notice(s) as described above, then the lessee may give written notice terminating the lease to the owner within 10 days after they become aware that the land is recorded on the register.
If the lessee does not terminate this lease within the 10 days then the lessee has waived their termination right.
Whilst the effect of section 407 in regards to leasing has not changed, the termination rights in section 408 regarding disposing of land have been amended to the benefit of land owners proposing to sell land that is recorded on either the CLR or EMR.