- Investments involving construction works in industrial areas are particularly exposed to environmental damages.
- According to the “polluter pays” principle, the entity responsible for pollution must incur all the expenses necessary to restore the environment to the condition prior to the damage.
- The investor is responsible for a thorough check of what is hidden in the ground already at the time of purchasing the land.
There is a group of industries which, due to the specificity of their activities, are especially exposed to the risk of environmental damages. These include: waste management, petrochemical and energy industry or transport of hazardous substances. Before deciding to launch a construction investment in an industrial area, the investor should carefully verify what type of activity was conducted in the area and if the ground does not hide any hazardous materials. Non-compliance with this obligation may have serious consequences.
The predecessor caused damage but it is the investor to pay
Investors operating in Poland are obliged to comply, among others, with the Act on Preventing Environmental Damage and Its Redress of 2007, harmonized with the Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004, whose primary objective is to restore equilibrium to the environment after a damage is caused. It is important that, according to the “polluter pays” principle, the entity responsible for the pollution of or damage to the environment must cover all expenses necessary to restore the environment to the condition preceding the damage. It does not matter that the detriment was caused as a result of actions of the previous entrepreneur. This provision has very profound consequences for construction investments. Liability for the damage attaches to the entity owning the land when the damage becomes apparent. In the light of the above, it is very important to detect potential threats already at the time of purchasing the plot.
– Investments carried out predominantly in industrial areas may involve a risk to the investor of damages becoming apparent during the construction works, caused, among others, by hazardous materials and pipes in the ground. If, at the time of purchasing the land, the investor fails to check what is hidden in the ground, and the damage becomes apparent only at a later time, the investor will be liable for its remedy. Sometimes restoration of the environmental condition preceding the damage may be so expensive that it leads to financial difficulties and a need to refrain from further work on the investment – says Jacek Kosiński, managing partner in the law firm Jacek Kosiński Advocates and Legal Advisers.
How to check a plot before buying the land?
The most important thing the investor should start with before making the decision to purchase land is to verify who its previous owner was and what activities were conducted on the plot. To this end, one should inspect the entry in the land register and determine the identity of the previous owner. If it proves impossible to contact such previous owner, the solution might be to access the documents kept, for example, in the municipal office or to address competent nature conservation authorities. If the activities previously pursued in a given area raised doubts as to care for the environment, these are appropriate institutions that may provide the investor with the relevant information. Where the investor is still uncertain about the condition of the land or accesses data which indicate that there might have been problems in the area in question, there remain precise chemical analyses of soil and water.
– However, the investor may protect itself against the effects of any environmental damage at the time of signing the agreement. It is possible to make a stipulation in the purchase contract which guarantees that, in the event of occurrence of such damage, the costs of the process of restoring the previous environmental condition will be borne by the seller of the plot. It must be also remembered that damages which occurred before the entry into force of the Act, i.e. before 30 April 2007, will be governed by other provisions. In consequence, it may prove essential in such cases to determine when the prejudice to the environment took place – says Jacek Kosiński.