What are Practice Notes?

Over the years the Law Society of England and Wales has issued more than 100 Practice Notes to its 160,000 members. They are designed to describe good practice and, whilst we are not strictly obliged to follow them, it makes sense for us to do so. In case of complaints by clients and / or the involvement of our oversight bodies (e.g., the Solicitors Regulation Authority), it is much easier to account for our actions if we follow the helpful steps set out in the relevant practice notes.

To date, however, only two of the Law Society’s Practice Notes relate to environmental matters – namely, the Contaminated Land Practice Note and The Flood Practice Note. Even though these Practice Notes have been updated, most recently in 2020, as we will see, there is a convincing case for revisiting them again.

Updating the Contaminated Land Practice Note

Climate change is all embracing. It will impact all of us to varying degrees. The Met Office[1] lists the following impacts:

• Risk to water supplies
• Conflict and climate migrants
• Localised flooding
• Flooding of coastal regions
• Damage to marine ecosystems
• Fisheries failing
• Loss of biodiversity
• Change in seasonality
• Heat stress
• Habitable region of pests expands
• Forest mortality and increased risk of fires
• Damage to infrastructure
• Food insecurity

In relation to UK real estate, climate change will have a material and negative impact on many hundreds of thousands of homes and commercial properties over the coming decades. Some of these properties will be located on or near to brownfield (formerly developed) or contaminated land, so the impacts of climate change need to be considered.

The crucial point is that this Practice Note is that it makes no mention of climate change.

If we bear in mind that almost half of the U.K.’s carbon emissions relate to the heating, cooling and construction of homes and other properties[2], the importance of having low carbon impacts across the property market is apparent. This very much includes property development on brownfield or contaminated land.

There are number of ways in which contaminated sites can be remediated – a common one over the years has been “dig and dump“ or ex situ remediation: the removal of contamination from the development site to a licensed landfill, often many miles away and necessitating lots of lorry movements to remove the material. This process can be highly carbon intensive.

Support has been growing in the UK’s land remediation sector –- for low carbon remediation: keeping the contaminated soil is on site and containing them or treating them so that they are safe. CLAIRE and the Remediation Society deserve credit for championing this innovative approach. There is a good case for saying that the Contaminated Land Practice Note should have something to say about how contaminated sites are remediated, especially when they are being repurposed for residential, commercial or mixed-use development.

Climate change is already giving rise to extreme weather events in the UK such as very intense rainstorms – just think of the increasing number of winter storms that we have been experiencing in recent years. These events can have the effect of mobilising contaminants which would otherwise have been contained. By way of example, the UK has over 12,000 closed landfill sites, some capped off with a layer of clay. Extreme weather has been known to wash away landfill caps and hence to mobilise the waste materials beneath. Properties in close proximity to such sites will be exposed in the future if contamination is mobilised as result of climate change.

Climate change is not only increasing land-based temperatures, but also water temperatures too, including groundwater temperatures. One consequence of such warming is that groundwater flows may change direction as a result. If the groundwater contains contamination – e.g., a plume of solvents – a change in direction may mean that the groundwater starts to flow towards a sensitive target, such as a water abstraction point. This in turn may signify that a source of pollution which was not previously a “problem“ – or one which was thought to have been remediated – could become a significant problem in the future as a result of climate change.

There are several other reasons why this Practice Note would benefit from a major rewrite:

• It explains what a solicitor involved in all conveyancing transactions (in all purchases, leases or mortgages) should do if contaminated land is “an issue“. However, it does not say when contamination is/is not an issue. This is not always obvious. I have recently been involved in commercial property transactions where desktop reports have either miscategorised sites as ‘high risk’ where that was plainly not the case or as ‘low risk’ when in truth they are clearly high risk.

• It focuses too much on Part IIA of the Environmental Protection Act 1990. Part IIA has failed to deliver across-the-board remediation of the U.K.’s contaminated sites so its importance, though not insignificant, is overstated in the Practice Note. Solicitors should be alerted about other laws which relate to contamination – the use of planning conditions to remediate contaminated land, and the other environmental statutes, regulations and the common law which allocate liability for making land and buildings safe to use.

• It provides overly simplistic comments about the use of environmental insurance. The City of London’s Environmental Insurance Market can provide long-term (up to 25 years), broad cover for the aforementioned suite of liabilities, together with diminution in land value, and first party business interruption losses. These are not mentioned.

Updating the Flood Risk Practice Note

This Practice Note was updated in January 2020 due to increasing concern about flood risk for properties in England and Wales because of climate change[3]. It now:

• Helps solicitors to better understand the prevalence of flood risk – approximately 1:5 UK homes and 1:3 UK commercial properties have a 1:100-year risk of a flood event. These ratios are worsening because of climate change.
• Provides detailed information about flood insurance for residential and commercial properties, and how to set flood alerts from the Environment Agency in England and NRW in Wales.

The case for updating this Practice Note is less compelling than it is for the contaminated land practice note. Even so, the Flood Risk Practice Note will also require an update because of the widespread availability of climate risk data/ reports from commercial data providers. This is a very new development. Climate data for specific properties became available to solicitors during the first half of 2022.

The question for us is how best to respond to this new source of climate information. In all likelihood we owe our clients a duty of care to advise about climate risks, so one way in which this can be discharged is by reviewing this climate data, passing it on to the client and including a commentary on it in our Report on Title.

The Law Society’s Climate Resolution and a New Practice Note?

Just prior to the Conference of the Parties (COP) 26 in Glasgow last year, the Law Society issued its remarkable and ambitious Climate Change Resolution[4].

It resolved to provide guidance to solicitors on how, when approaching any matter arising in the course of legal practice, to consider the impact of that matter upon the climate crisis.

It also resolved to develop, disseminate, and publicise educational tools and resources to support solicitors to incorporate into their daily practice advice on the impact of climate change.

There is also a compelling case for an overarching new Practice Note on climate risk to give all practitioners guidance on how best to advise clients about the significant impact the climate crisis is having and will increasingly have on UK land and buildings, and across other areas of legal practice (corporate transactions, construction and pensions to name but a few).

The Law Society’s Planning and Environment Committee is actively considering this in concert with other Committees. Watch this space!

[1] https://www.metoffice.gov.uk/weather/climate-change/effects-of-climate-change

[2] https://www.castledebates.org.uk/storage/events/1358485667a_Science%20%20Jon%20Lovell%20Head%20of%20Sustainablilty%20at%20Drivers%20Jonas%20Deloitte.pdf

[3] https://www.lawsociety.org.uk/Topics/Property/News/Flood-risk-practice-note-updated

[4] https://www.lawsociety.org.uk/topics/climate-change/creating-a-climate-conscious-approach-to-legal-practice#download-the-resolution