Standard Directors’ and Officers’ (D&O) policies may cover a director for the
costs of defending criminal, regulatory and even civil proceedings arising
out of a pollution incident. This could be when the pollution incident results
from a director’s consent or connivance, or is attributable to any neglect. In
practical terms, since criminal fines are not insurable, it has only been
defence costs that have been covered by D&O policies to date.
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The Commercial Property Standard Enquiries contain comprehensive
environmental enquiries. Particularly relevant are those in ss8 (relating
to physical condition), 14 (statutory and other requirements), and 15
(environmental). However, it is worth noting that there are some aspects
that are not covered and accordingly buyers may want to raise additional
enquiries about:
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The Private Security Industry Act 2001 (in force since May 2005)
requires wheel-clampers to be licensed by the Securities Industries
Association. This applies to all wheel-clampers – not just the large
commercial organisations. Accordingly, a private property owner who
decides to do his own clamping or immobilising will need a licence.
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All the above entries come from the excellent ‘A Practical Guide to
Environmental Issues in Commercial Property Transactions’. In our opinion
it is by far the best guide for a commercial conveyancer in that it contains
detailed practical advice on what to do.
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The next stage up from a desktop search is to go for a Phase I or Phase
II investigation. Phase I is a site reconnaissance survey combined with
a desktop survey. In effect, it is a remote analysis of past uses (eg
current operations; site history; presence of storage tanks; condition of
waste areas; condition of site surface; any obvious risks of neighbouring
land use) plus a straightforward site walk-through.
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The modern view is that an environmental desktop survey will be
essential in most commercial property transactions. For instance, even
if the property is a short-term leasehold interest over the floor of a
building for use of an office, the service charge provisions may be
sufficiently wide to cover remediation costs in and around buildings.
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There are three main categories of environmental insurance policies for
commercial risks. The most important for practitioners will normally be
site-specific policies, of which there are seven main types:
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