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A combination of legal and technical tools offers a new solution to developing brownfield land, say Stephen Sykes, Paul Connell, Paul Davies and Michael Green

The development of brownfield land provides opportunities and risks for everyone involved. By its very nature, brownfield land has risks (and potential upsides) but these risks, once understood, can be technically and legally managed. Therefore, the key to the sale, purchase or development of brownfield land is the understanding and minimisation of risk.

When it comes to buying or selling brownfield land or businesses with known contamination issues, the market has been stubbornly slow in embracing innovative solutions, choosing to rely on due diligence of limited usefulness to their client and standard contractual protection.

However, solutions that combine legal and technical tools and which can better address the needs of the client are now available. Liability buy-outs, originally developed in the US, aim to reduce concerns over the allocation of liabilities and provide purchasers/developers with increased operational flexibility and greater confidence to achieve their commercial objectives. A prime example is Active Transfer, a contamination liability buy-out solution designed by WSP Environmental and Energy (WSP) with legal assistance from Macfarlanes. Active Transfer has a global application and aims to evaluate, quantify and eliminate the risk to the parties concerned with the transaction.

In the UK the main liabilities that owners/developers of brownfield land face are:

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