Irwin Mitchell

This Practice Note highlights environmental, energy performance certificate (EPC), minimum energy efficiency requirements (MEES), planning and health and safety issues that solicitors should look out for when reviewing Commercial Property Standard Enquiries (CPSEs) and provides additional enquiries that can be raised. It highlights the key CPSEs which raise environmental and health and safety issues, such as adverse rights, environmental insurance, access to neighbouring land, physical condition, utilities, asbestos, Green Deal, environmental reports, environmental permitting, Community Infrastructure Levy (CIL) etc.

This precedent contains clauses that can be added to a share purchase agreement or asset purchase agreement when a seller has agreed to pay for environmental rectification work or an environmental audit post completion.

This Precedent places the risk of environmental liability arising from existing contamination, new contamination and offsite or onsite migration of contamination onto the tenant. It was produced in partnership with Keith Davidson of Irwin Mitchell. The Precedent includes an agreement on liabilities under the contaminated land regime and the option of an indemnity from the tenant.

This Precedent can be used in leases when the landlord is to be responsible for existing contamination and the tenant is to take on responsibility for new contamination and mobilising existing contamination. This is to avoid the situation where a lease is silent on environmental issues and the landlord could pass clean-up costs for contamination, existing before the commencement of the lease, under lease covenants such as the compliance with statutory requirements covenant, repair covenant or outgoings covenant. It was produced in partnership with Keith Davidson at Irwin Mitchell.

This Precedent can be used in leases to protect landlords if a tenant’s business involves potentially polluting activities, such as manufacturing, oil storage, waste operations, construction, water abstraction, discharges of pollutants to sewers or waters or the storage of hazardous materials. It has been produced in partnership with Keith Davidson at Irwin Mitchell.

This tenant protection clause should be used in leases to ensure that the tenant has no responsibility for existing contamination at the property— ie contamination existing before the commencement of the lease. If the lease is silent on environmental issues, the landlord could potentially pass clean up costs for existing contamination onto the tenant through obligations in the lease. There is a wide definition of existing contaminants to include hazardous substances, waste and Japanese knotweed. The clause includes an agreement on liabilities under the contaminated land regime and the option of an indemnity from the landlord. It was produced in partnership with Keith Davidson at Irwin Mitchell.

This Precedent, produced in partnership with Kunal Gadhvi of Irwin Mitchell LLP, is a restructuring plan for use by small to medium enterprises (SMEs).

This Precedent provides a clause to be used in sale contracts where the seller retains environmental liability for contamination. In most sale contracts liability for pre-existing contamination is passed to the buyer from the completion date under the sold with information exclusion test, set out in the statutory guidance issued under the Environmental Protection Act 1990 (EPA 1990), Pt IIA. This alternative precedent can be used when the seller retains environmental liability for pre-existing contamination, for example when the buyer is in a strong negotiating position. In sale and leaseback situations the provisions can be widened so that the seller/tenant is responsible for pre-existing and new contamination. It was produced in partnership with Keith Davidson at Irwin Mitchell.

This Precedent contains environmental provisions in the form of a schedule that can be added to a sale of land contract when acting for a seller to transfer environmental liabilities to the buyer. It was produced in partnership with Keith Davidson at Irwin Mitchell. It includes the sold with information and payments for remediation statutory exclusion tests, a release of seller’s liability clause, an environmental indemnity and an agreement on liabilities, along with comprehensive drafting notes.