Keith Davidson
Keith is a Partner at Irwin Mitchell in Manchester specialising in environmental transaction advice.
Keith is dual qualified in England / Wales and N.Ireland and is a former Environment Commissioner for Greater Manchester.
His practice areas include contaminated land, brownfield development, environmental insurance, and carbon literacy training. He provides EHS transactional support to 20 other law firms.
Keith has been top ranked in Chambers and Legal 500 for the last 15 years.
“A leader at understanding and managing environmental liability” Chambers UK Guide
Practice Area
Panel
- Consulting Editorial Board
Qualified Year
- 1995
Experience
- Irwin Mitchell (2023 - Present)
- ELM Law (2014 - 2023)
Membership
- Chartered Institution of Water and Environmental Management (PFAS working group)
- LexisPSL Environment Consulting Editorial Board
- Law Society Climate Change Working Group (co-opted)
- United Kingdom Environmental Law Association
Qualifications
- Solicitor England & Wales (1995)
- Solicitor Northern Ireland (1994)
Education
- LLM Environmental Law SOAS (1995)
- LLB Queens University Belfast (1991)
16 Contributions by Keith Davidson
PRACTICE NOTES
Acting for sellers in property transactions: environmental liabilities, permit transfers, contaminated land and climate risk (England and Wales)
Types of environmental liabilities
Environmental liabilities arise in relation to land, buildings and fixtures. Under caveat emptor/buyer beware, such liabilities and any capital expenditure needs will generally pass to the buyer as the new owner. Whether the seller remains on the hook depends on the applicable regime and whether the deal is an asset or share sale. For instance, in an asset sale, non-compliance with an environmental permit, or causing or knowingly permitting pollution, can still attach to the seller company or individuals after completion. The principal types are outlined below.
Land
Contamination, asbestos in soil, water pollution, environmental damage, landfills, fly-tipped waste, flooding, ground subsidence, sinkholes, coal mining, unexploded ordnance, radon, Japanese knotweed, wildlife and habitat protection, riparian ownership, shale gas, energy projects, planning conditions, high speed 2, cross rail, compulsory purchase
Buildings
Asbestos in buildings, air conditioning inspections, energy management and reporting, energy performance certificates, minimum energy efficiency standards, display energy certificates, energy savings opportunity scheme, F-gases and ozone-depleting substances
Fixtures
Oil storage tanks, underground storage tanks, septic tanks and sewage treatment...
...
Environment
PRACTICE NOTES
Commercial lease negotiations on environmental liabilities: contaminated land, asbestos and MEES—key clauses, tactics and case law for landlords and tenants (England and Wales)
Who takes responsibility for contaminated land liabilities?
Where legacy land contamination is a concern, or the tenant’s operations involve polluting activities, the parties will need to address in the lease who assumes responsibility. That decision concerns any potential contaminated land liabilities.
Standard clauses in leases
If a lease is silent on environmental matters, several non-environmental provisions may still have implications for environmental liability. The points below flag common lease clauses to watch for.
Extent of the demise: Confirm whether the term ‘premises’ captures land (including surface water and groundwater), above-ground storage tanks, underground storage tanks and pipes.
Covenant to comply with statutory obligations: Where either the landlord or the tenant receives a statutory notice, or a regulator requires works (for example, the landlord is threatened with a remediation notice or works notice), the landlord may rely on this covenant to pass the costs contractually to the tenant, even if the tenant has not caused the pollution or the notice relates to historic contamination, waste or Japanese knotweed. When acting for a tenant, consider adding a tenant protection clause...
Environment
PRACTICE NOTES
Environmental risks and due diligence in commercial property transactions: contamination, permits, EPC/MEES, flooding, knotweed, asbestos, biodiversity and climate risk (England and Wales)
Environmental issues to consider
Because environmental liability concerns can slow or derail transactions, the parties should decide at the heads of terms stage whether any environmental points ought to be raised, including:
Will the seller supply any environmental reports?
Does the buyer need to arrange site investigations?
Has the seller shared asbestos documents, for example a recent survey, an updated register and an asbestos management plan?
Is there a requirement to transfer or obtain environmental permits?
What is the agreed stance on contaminated land liabilities—if the property is sold ‘with information’, will the buyer assume responsibility only under the contaminated land regime, or for all liabilities and losses under environmental law?
Is environmental insurance required?
For a general overview of environmental issues in property transactions, see Practice Notes and Checklist:
Environmental issues in property transactions—acting for a buyer
Environmental issues in property transactions—acting for a seller
Environmental issues in property transactions when acting for a seller—checklist
Land contamination and water pollution
Liability risks linked to land contamination and water pollution are summarised in the table below:
Regulatory action
Third party liabilities
Contractual liabilities...
Environment
PRECEDENTS
Asset purchase agreement: seller-friendly EHS warranties—permits, awareness-qualified compliance, no proceedings, exclusive EHS warranty scope
Definitions
Environment
any or all of these media: (a) air (including air inside buildings or other structures, whether either beneath or above ground) (b) land (including soil and sub-surface land); and (c) water (including surface water and groundwater), together with any ecological systems or living organisms (including humans) sustained by those media...
Environment
PRECEDENTS
Buyer-friendly Environmental, Health and Safety warranties for a Share Purchase Agreement: permits, compliance, hazardous substances, asbestos, producer responsibility, ESOS, reporting and insurance
Definitions
Environment • any of the following media: (a) air (including air inside buildings or other structures, whether below or above ground); (b) land (covering buildings and any other structures or erections on, in or beneath it, together with soil and all sub-surface features); and (c) water (both groundwater and surface water); plus any ecological systems or living organisms (humans included) sustained by those media.
EHS Laws • all relevant legal requirements—civil, criminal or administrative—comprising statutes, statutory instruments, directives, regulations, common law, codes of practice and guidance notes with legal effect, and any orders or decisions of any court or regulatory authority that concern EHS Matters.
EHS Matters • any issues connected with the Environment, energy efficiency, climate change or health and safety.
Environmental Permit • any permits, licences, authorisations, approvals, permissions, certificates, registrations, notifications, exemptions or consents required by the Company in respect of the use of Properties or the carrying on of the Business under EHS Law.
...
Environment
PRECEDENTS
Buyer‑friendly environmental, health and safety warranty schedule for asset purchase agreements: permits, compliance, hazardous substances, asbestos, producer responsibility, ESOS and insurance
Definitions
Environment – any or all of the following media: (a) air, including air inside buildings or other structures and at levels below or above ground; (b) land, covering buildings and any other structures or erections upon, in or beneath it, together with soil and anything beneath the land's surface; and (c) water, including groundwater and surface water, plus any ecological systems or living organisms (humans included) sustained by those media.
EHS Laws – all relevant legislation (whether civil, criminal or administrative), statutes, statutory instruments, directives, regulations, common law, codes of practice and guidance notes (having legal effect), and any instructions or decisions of any court or regulatory authority that concern EHS Matters.
EHS Matters – any issues connected with the Environment, energy efficiency, climate change, or health and safety...
Environment
PRECEDENTS
Lease clause excluding landlord liability for contamination and allocating risk to tenant (optional indemnity), referencing the Contaminated Land Statutory Guidance
1 Definitions
Contamination – the presence or build-up of any Hazardous Substances at, in, on, under or around the Premises.
Environment – all or any of the following media, namely air (including the air within buildings and the air within other natural or man-made structures above or below ground), land and water (including surface water and groundwater) and any ecological systems or living organisms (including humans) supported by those media.
Environmental Information – [ list any environmental reports that have been provided to the Tenant (eg desktops, phase one reports, phase two reports, validation reports, geotechnical)... ]
Environment
PRECEDENTS
Lease provisions on end-of-term environmental report, intrusive Phase 2 investigation, remediation of new contamination, tenant costs and indemnities, and expert determination
Definitions [ to be added at the start of the lease ]
End of Term Environmental Report - an invasive phase 2 investigation of soils and groundwater, with suitable sampling and testing, procured by the Tenant to determine if any New Contamination exists at, on, or beneath any portion of the Premises...
Environment
PRECEDENTS
Leases: allocation of environmental contamination liability and indemnities—landlord for existing; tenant for new/aggravated; regulatory allocation agreement under Defra/Welsh Statutory Guidance (England and Wales)
1 Definitions
Contamination: Hazardous Substances present at, in, on or beneath the Premises.
Aggravated Contamination: Existing Contamination worsened by the Tenant or those it controls.
Environment: air, land, water, and supported ecosystems or organisms, including humans.
Existing Contamination: contamination present by Lease start, and its escape, excluding Aggravated.
Hazardous Substances: any substance, alone or combined, able to harm the Environment or the health of organisms it supports.
Losses: all losses, liabilities, actions, proceedings, claims, judgments, penalties, damages, costs and expenses, including legal and other professional fees.
New Contamination: contamination (not Existing/Aggravated) first arising or migrating after Lease start.
Statutory Guidance: Defra 2012 and/or Welsh 2012 guidance, plus later regime guidance.
2 Contamination
The Tenant has no responsibility or liability for Existing Contamination; the Landlord must indemnify the Tenant.
The Tenant is liable for, and shall indemnify the Landlord against, Losses from New Contamination and Aggravated Contamination.
3 Agreement on liabilities
Clauses 2.1 and 2.2 comprise the liabilities agreement for paragraph 7.29 of the Statutory Guidance.
If a regulator (the Environment Agency, Natural Resources Wales, or the local authority) takes enforcement, remediation costs and liabilities must follow this agreement.
Neither party may challenge its application...
Environment
PRECEDENTS
Precedent clause: transfer of environmental permit on completion – buyer application, costs, compliance and indemnity
1 Definitions
Contamination – Hazardous Substances in soil/water at or beneath the Property, and/or their migration to/from it.
Environment – air; water (surface/ground/drains/sewers); land (sub‑surface/under water); and living organisms (incl. humans) and ecosystems.
Environmental Law – all applicable statutory/common law (civil/criminal/administrative), directives/regulations, codes of practice, guidance/instructions, and court/regulatory decisions on protecting the Environment or human health.
Environmental Liabilities – any fines/penalties/charges/actions/losses/costs/claims/expenses/demands/duties/obligations/damages or other liabilities (incl. reasonable Remedial Action costs) suffered or incurred after Completion by the Seller under or by reason of any Environmental Law.
Environmental Permit – permit [insert title] number [insert number] [insert date].
Hazardous Substances – any solid/liquid/gas capable, alone or with others, of harming human health or the Environment.
Remedial Action – reasonable measures to investigate/inspect/monitor/remove/remedy/abate/contain/control/treat or ameliorate Contamination.
2 Environmental Permits
As soon as possible after Completion, both shall use reasonable endeavours to obtain the Environmental Permit in the Buyer/newco’s name; the Buyer applies and both co‑operate in good faith, providing any documents/notifications required under Environmental Law.
The Buyer pays all application/filing/administrative/similar transfer fees.
From Completion, the Buyer complies with Environmental Law and Permit conditions.
The Buyer indemnifies and keeps the Seller indemnified against Environmental Liabilities arising from any breach of Clause 2...
Environment
PRECEDENTS
Precedent clauses: HM Land Registry restriction ensuring environmental obligations bind successors (England and Wales)
1 Sale contract—restriction on title
1.1 The Buyer undertakes to the Seller not to dispose of or otherwise deal in any way with the whole or any part or parts of the Property without first ensuring that the person then receiving the disposal has executed and delivered to the Seller a deed of covenant, in a form approved by the Seller in writing (such approval not to be unreasonably withheld or delayed), which contains the same obligations and provisions on the part of successors in title as those binding the Buyer under paragraphs [ insert number ] of this Agreement...
Environment
PRECEDENTS
Property sale clauses: seller retains contaminated land liabilities; indemnity and allocation under Part IIA EPA 1990 (England and Wales)
1 Definitions
Within this clause [ 1 ] the following meanings apply:
Contaminated Land Regime • Part IIA of the Environmental Protection Act 1990, as amended from time to time, and the Statutory Guidance
Contamination • the existence or build-up of any Hazardous Substances at, in, on or under the Property [ at or prior to the Completion Date ] [ at any time whether before or after the Completion Date ]
Environment • any or all of the following media, namely air, land, water (including surface water and groundwater) and any living organisms (including man) or systems sustained by those media
Environmental Law • all applicable laws, statutes, secondary legislation, common law, directives, regulations, codes of practice and guidance notes that have legal effect [ and are in force at the Completion Date ] in
...
Environment
PRECEDENTS
Seller-friendly environmental, health and safety warranties for share purchase agreements, with definitions and exclusive EHS warranty regime
Definitions Environment
Environment means any or all of the following media:
(a) air, including the air inside buildings or other structures, whether located below or above ground;
(b) land, comprising soil and sub‑surface land;
(c) water, covering surface water and groundwater;
and includes any ecological systems or living organisms, humans included, that are sustained by those media...
Environment
CHECKLISTS
Asset purchase post-completion environmental, health and safety (EHS) checklist: permit transfers, producer responsibility and carbon schemes, audit rectification, insurance, reliance agreements and collateral warranties
Under an asset purchase, the purchaser takes only the selected assets and assumes only the specific liabilities it opts to accept, as detailed in the asset purchase agreement. After completion, issues highlighted by due diligence may require the purchaser to address environmental, health and safety (EHS) matters. For example, the purchaser might need to transfer or apply for a permit, join a recognised packaging waste compliance scheme, or strengthen health & safety documentation following completion. Typical post-completion EHS actions in asset purchase transactions include the following:
transferring environmental permits
verifying whether the deal triggers any new duties under environmental regimes, such as producer responsibility, energy efficiency and carbon schemes
tackling points raised in environmental audits and reports, and any contractual conditions
advising on the scope of environmental insurance and other risk-mitigation strategies
putting in place reliance agreements or collateral warranties to allow reliance on environmental reports
Transfer of environmental permits
In an asset sale, the name of the operator/permit holder will be changed...
Environment
CHECKLISTS
Post-completion environmental and health and safety checklist for share purchases: regulator notifications, regime obligations, audit follow-ups, insurance, and report reliance
In a share sale, the purchaser acquires control of the company that operates the business (the target), along with all its assets, and by default steps into all of its obligations and both known and potential liabilities. Findings in legal due diligence and the share purchase agreement can identify particular environmental, health & safety (EHS) matters to be addressed after completion. These may range from an obligation to commission an environmental audit through to the preparation of an asbestos management plan...
Environment
CHECKLISTS
Seller-side environmental risk and due diligence checklist for property transactions: contamination disclosure, 'sold with information' liability transfer, reports and reliance, investigation licences, permits, insurance, asbestos and EPCs
Does a seller need to disclose land contamination to a buyer?
If the seller knows the land is contaminated, there is no obligation to reveal this to a purchaser; the principle of ‘buyer beware’ applies. However, when responding to CPSE enquiries, the seller must avoid any misleading statements.
16.4 Please provide (so far as the Seller is aware) details of: (a) historic and current uses of the Property and activities undertaken there; and (b) whether any hazardous substances, or contaminative or potentially contaminative materials, are in, on or beneath the Property, including asbestos or asbestos-containing materials, any known waste deposits, present or former storage areas for hazardous or radioactive substances, existing or previous storage tanks (above or below ground), and any parts of the Property that are or were landfill.
A seller will typically seek the benefit of the ‘sold with information’ statutory exclusion and authorise the buyer to carry out its own site investigations. A typical response would be: ‘the buyer may undertake its own investigations into the condition of the land. No representation or warranty is given in respect of contamination’. Any reliance should be on the buyer’s own investigations into the condition of the land For...
Environment
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