Development Checklist Jaefoo-Blog: Development Checklist No 14 - Contamination of Lan...

Development Checklist Jaefoo-Blog: Development Checklist No 14 - Contamination of Lan...: Once a site has been found its suitability regarding contamination may have to be ascertained. [ Please Note: This is a first-stab post on a...

Development Checklist No 14 - Contamination of Land and Buildings

Once a site has been found its suitability regarding contamination may have to be ascertained. [Please Note: This is a first-stab post on a complex topic involving:   desk and site investigations, liability under a duty of care, statutory remediation processes etc.]

The post identifies some of the  pointers  on contamination which may affect the site's efficacy for the developer's / owner's objectives.

Check 1: Contamination Desk Study: Has any  desk study been done? If affirmed, did it reveal any evidence that suggests the land or buildings are contaminated?. Such evidence may include:

• documents suggesting a history of previous contaminative uses;  
• reports of previous works to combat pollution on the site:
• invoices etc showing contractors were used to remedy contamination;
• a local authority remediation notice.

Check 2: Contamination Site Survey:  Has any site survey been done? If affirmed did it reveal evidence that suggests the land or buildings are contaminated? Such evidence may include:

• discolouration of surface materials;
• dead or dying flora or fauna or unnatural absence of the any natural growth etc;
• sampling or boring cores which show the presence of pollutants;
• evidence of works to remedy contamination.

Check 3: Pollutant's Path:  Ascertain whether any contamination's pollutant's pathway  has been determined from the evidence and whether there is the prospect that any receptor(s) will be harmed.

Check 4: Polluter Pays:  Ascertain whether any polluter, eg owner / occupier of adjoining land,  has been found and whether liability to pay  for remediation has been agreed.

Check 5: Insurer Pays:  If the polluter has been discovered, ascertain whether their insurer is liable under a valid insurance policy. 

Check 6 Owner Pays:  If no historic polluter has been discovered, the landowner is liable unless liabilty can be transfer to the owner's insurer under a valid indemnity policy

Check 7: Remediation Notice: See whether any issued remediation notice has been complied with and, if necessary, confirm that the works are sound.

Development Checklist No12 Waste Management

Waste is endemic in demolition, construction and building but good site management can make improvements happen.  There is good potential for recycling of demolition debris and other waste from site operations during the building process. Statutory Checks include the following:

Checklist 12.1:    Asbestos Removal Plan: Hazardous waste  which is asbestos should be removed under safe conditions in accord with the owner's / occupier's, etc asbestos removal plan (ARP). Matters to be covered include:

• Check 1: An awareness is created of the duty of care to protect members of the public, employees and contractor's employees;
• Check 2:  Safe working and conditions are managed, including:  a) protective clothing for workers; b) works of removal; b) storage; c) transporation: and, d) disposal destination; and,
• Check 3:  Carriers, disposal site operators, and scrap metal dealers have licences to operate.

Check 12.2: Hazardous waste: Waste which is hazardous should be handled, removed and finally disposed of in accord with the Hazardous Waste Regulations 2005 SI No 894 (as amended).

Check 12.3: Scrap Metal: Follow the progress of the Scrap Metal Dealers (Amendment) Bill (2011-2012).  If Royal Assent is granted scrap metal must not be bought for cash by scrap metal dealers.

Check 12.4:  SWMPs:    If the project is worth the prescribed amount ensure compliance with the Site Waste Management Plans 2008 SI 2008 No 341.

Development Checklist No11 - Practical Building and Construction Pointers (Update No 2 - 21 October 2011)

This post makes a modest start on what is likely to be a long list of Checks required of the participants in many types of building and construction jobs.
As yet no comprehensive attempt has been made to categorise them or go into detail - they appear in alphabetical order but this may be altered shortly.  The intention is to offer a series of pointers to investigation or action. Some cross references are given to other Checklists where more detail is given.

Access to Adoining Land: Check for any need to have access to one or more neighbours' adjoining land for maintemance, building or construction purposes - the following may be noted:

• rights of access under some existing Deed or Agreement may be available;
• for maintenance, the provisions of the Access to Neighbouring Land Act 1996 may apply; and,
• it may be possible to negotiate for access to enable.

Archaeological

• Human Remains (see below)
• Remains:
• Survey:

Asbestos:

• Check 1  (in respect of an existing commercial, etc building or structure), for an asbestos management plan drawn up by the owner / occupier.
• Check 2 that the plan has been maintained or updated.
• Check 3 ensure employees and managers are aware of the plan and have protective clothing etc;
• Check 4 Site waste management plan (SWMP) cover asbestos waste carying and disposal otherwise ensure compliance with statutory and other official requirements

Building controls:   Check standards, procedures and practice under the Building Act, building regulations, approved documents, etc.

Cables, pipes and other utilities: The site owner may need to supply a plan showing the location of electricity cables and any overground support installations, gas pipes, telephone cables and other like service or utility apparatus. Where appropriate such infrastructure should be

• indicated as switched off, "live" or "dead"; and,
• appropriately protected and made safe.

Commencement: Check where certain kinds of building, construction, demolition and other operations trigger the commencement of "development" - for which prior planning permission and possibly other consents etc are required.

• See Checklists No 10 and 8 for CIL

Completion: Check for "completion" of the construction. Formal completion will trigger the following:

• local taxation - council tax and / or business rates (see Checklist No 6 Local Taxation) ;
• commissioning and hence occupation of the building, etc.

Demolition: Check prior to entering into any demolition contract whether:

• for issues like a) listed building, b) conservation area, c) etc;
• prior planning permission is needed before commencement;
• a cables etc plan has been prepared;
• an asbestos management plan is to hand;
• a site waste management plan (SWMP) is needed.

Disability discrimination:  

Drains and sewers: Check the procedure for notification of any intended building over sewers or drains. 

Environmental impact: Check whether the projects will require an environmental impact statement.

Fire certification: 

Human remains: The discovery  of human on a site will require notifications to the police, coroner and, possibly, the local archaeological service.

Light: Check at the design stage of the project that any neighbour's right to light is not breached.

Natural rights:

Party walls: Building on or near a wall to adjoining property may require compliance with the Party Wall Act 2004.

Possession of land and buildings:  Where a property is occupied developer-landlords will need to obtain possession of the property from tenants / lessees. The approaches are:

• Statutory possession  In many if not most instances compliance with relevant statutory requirements for achieving vacant possession must be followed.
• Agreement:  Where a statutory approach is not available or is likely to be abortive, it may be possible to agree financial terms to buy out the tenant or lessee.

Radon: The naturally occuring but dangerous gas, radon, may seep into basements or other enclosed rooms, precautions should be taken to seal, or build in ventilation to new projects. 

Restrictive Covenants: May impact on scope of, or prevent development unless removed or modified

Servitudes etc: Check (preferably prior to contracting to buy land and buildings) that neighbours do not hold rights which might affected, cause delay or cause the project to be aborted at a later stage. Pointers include:

• Easements:
• Natural rights:
• Restrictive covenants:

Sewers:  see Drains and sewers:

Treasure: 

• Check 1 The local office is notified of any finds during site works of "treasure" (as defined in the Treasure Act 1996).

Waste:

• Check 1  Where required ensure site waste management plan (SWMP) is in place: otherwise plan to minimise on-site waste.
• Check 2  Ensure that waste carriers are licensed.
• Check 3 Ensure compliance with asbestos and other hazardous waste regulations.

Development Checklist No 10 - Community Infrastructure Levy and Section 106 Agreements

Check 10.1: Adoption: Check whether the local authority has adopted community infrastructure levy (CIL) or is likely to have done so by the time your project is due to commence after obtaining planning permission.

Check 10.2: Rates of charge:  If it has or will, find the rate(s) of charge that apply to one or more of the different type(s) of development within your project.

Check 10.3: Commencement of Project: If CIL is not yet operational in the area, check whether it is possible to reduce or avoid  CIL by starting the project or a phase of it before the tax commences to operate.

Check 10.4:  Budget:  Where CIL will be chargeable, account for its payment(s) in the cash flow budget etc.

Check 10.5: Section 106 Agreement:   Where CIL is not adopted by the local authority, check whether any payment or other obligation will arise under a Section 106 Agreement. 

[Please note: Even where CIL has been adopted, site-specific planning obligations may arise under a Section 106 Agreement.]  

Check 10.6:  London Levy: Check for a project in London whether the Mayor's "CIL tariff"  will apply.

Check 10.7: Other Tariffs:   Where CIL does not yet apply check whether any other kind of tariff or levy applies to your project.

Check 10.8:  Exemptions:  Check whether your project is eligible for any CIL exemptions and reliefs.

Exemptions and Reliefs:

• Rebuild of Premises: A project which is a rebuilding of equal or less size than the original should not result in a charge to CIL. Following planning permission the commencement of a rebuild which is more than 110 percent of the original premises may give rise to a charge.

Development Checklist No9 - Trees, Plants, Vegetation and etc

Check 9.1: Check the site and buildings for harmful vegetation and other natural growth.

Check 9.2: Review the above findings in terms of statutory requirements and other management policies.

Check 9.3: Develop a management action plan to deal with issues arising from the above. 

1. High Hedgerows:    Certain overgrown evergreen hedgerows may be designated by the local authority as high hedgerows and the developer/occupier/owner of the dwelling must reduce their height to 2 metres.
2. Japanese Knotweed:  Japanese knotweed is a vigorous invasive plant capable of growing through concrete and other hard surfaces. Prior to development of land every trace must be removed. It is a notifiable under the XXXX and removal from land is strictly controlled.
3. Important Hedgerows:    Certain hedgerows are described as important hedgerows and must not be uprooted by the developer/owner/occupier without the consent of the local authority.
4. Trees:   Trees at a boundary may be the cause of problems with neighbours. Developers might usefully consider the impact on neighbours of existing trees or of planned new planting. Issues include:  a) damage to boundary markers by branches or roots, b) overhanging or falling branches. c) damage to buildings  and drains by roots.   
   
5. Weeds: Certain weeds are controlled under the Weeds Act 1959.


6. Tree Preservation - Planning legislation enables the local planning authority (LPA)to protect certain trees by a tree preservation order. Any  works to a preserved tree must be formally authorised by the consent of the LPA.

Development Checklist No 8 - Insurances (Update 1 - 19 October 2011)

Check 8.1:  Identify the risks that the project faces and how they should be eliminated or 
mitigated by management policy or insurance.

Check 8.2: Review the need for insurances, particularly statutory and contractural, and develop management action policies for meeting risks . 

Check 8.3: Identify statutory insurances and ensure compliance by each party concerned and that the cover is adequate.

Check 8.4: Identify contractural insurances and ensure each party complies with the terms and conditiona and has adequate cover.

Check 8.5: Review Checklist 10 for the exemption from community infrastructure levy (CIL) where on a rebuild after damage or destruction there is a modest increase in size of a building.

Typical insurances found in development works include:

Statutory Insurances

       General:

• Employer's Liability:
• Motoring:

        Property:

• Airports: Owners or operators require cover to protect the customers, staff and third parties against loss or injury which is due to a failure in the owner’s or operator’s duty of care.
• Horse Riding Establishment: A duty to insure under the Riding Establishments Acts 1964 s 1 (4A), is required of the licence holder to cover customers, eg hirers or persons learning, and third parties (suffering injury from the proprietor or a customer).
• Nuclear Installations - Nuclear Installations Act 1965 s19 requires insurance or compensation cover of the licence holder of a nuclear installation, eg a power station generating electricity by a nuclear reactor.

Contractual:

• Land and buildings etc, exchange of contracts: The purchaser of land and buildings is advised to insure from the date of contract.
• Goods:
• Professional services:
• Trade services: Contacts for demolition, building, fencing, security, etc works will normally cover such matters as contractor's all risks, public liability, etc.

Other:

• Keyman:
• Membership of a profession or trade body: Professional bodies such as the RIBA, RICSand the RTPI require its members to carry cover for professional indemnity insurance (PII).