Review of Environmental Pollution Law and Commercial Transactions

Having read Vincent Brown’s book, it has to be said that the reference in the preface to JRR Tolkein’s epic The Lord of the Rings is particularly fitting. The author’s aim to cover comprehensively environmental pollution law in Scotland is ambitious enough. But he also endeavours to analyse in considerable depth the impact of environmental legislation on commercial transactions.

So does he succeed in his seemingly impossible quest? The answer is yes, albeit with a lot less drama than Frodo Baggins’ tale!

The book is divided into four parts. The first two deal with the substantive law relating to environmental protection and pollution control and regulation. Given the complexity of the legislation these chapters are surprisingly readable and go beyond the bare repetition of the statutory framework of which many environmental texts are so frequently guilty. The breadth of coverage is comprehensive, including European law, competition law, water pollution, IPPC and APC regimes, waste and statutory nuisance.

Some areas such as nature conservation, human rights, environmental impact assessments and environmental tax are covered in less depth. Many of these issues are certainly less relevant considerations for commercial transactions used in the case studies, but the legal practitioner should not overlook their impact in other commercial contexts.

By contrast the treatment of the contaminated land regime is rigorous and very user-friendly. With no case law yet produced, Vincent Brown draws out many of the uncertainties which the regime currently presents and draws useful speculative conclusions. The similarities and contrasts he makes with the water pollution regime are also helpful in reflecting the possible development of the contaminated land regime in the future.

Since the book has been published, regulations amending the pollution prevention and control, asbestos and waste management licensing regimes have come into force. The European Directive on Environmental Liability has now made its way through the European Parliament and will be adopted shortly. The author recognises the risk that the area of environmental protection is a fast evolving area of law, and where change is predictable he has anticipated that, providing an area of future-proofing.

If this book was solely a textbook on environmental pollution law, its shelf life might well have been shorter and criticism of the areas covered in less depth more justified. However, in the final two parts of the book (in excess of 200 pages) we are treated to an in-depth analysis of the impact of the foregoing legislation in the commercial context.

There are two case studies: one from the corporate perspective, the other a property transaction. For an active legal practitioner Brown has been very generous in sharing his commercial expertise, making this book a rarity amongst legal texts. As well as covering due diligence issues, informative commentary and specimen drafting are given in relation to a wide range of commercial contracts including sale and purchase agreements, remediation contracts, indemnities, conveyancing deeds, collateral warranties, funding arrangements, leases and insurance. The perspectives of the various parties to the transactions are thoroughly explored in a highly readable format.

For the conveyancer confronted with the Law Society’s guide to best practice on contaminated land, what this book offers is very useful. Where land in a transaction is likely to be contaminated, practitioners are advised to consider using contractual protections. This text offers an insightful and thorough review of the commercial contractual options available.

As the field of environmental pollution continues to grow in complexity and in its impact in the commercial sector, this is an area where solicitors will increasingly have to focus. With its commercial focus, readability and comprehensive legal overview this text is a must for the commercial legal practitioner confronting these issues for the first time.

Sarah Pirie, Burness, Edinburgh
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