The Department of the Environment has issued the first formal draft guidance notes to accompany the contaminated land provisions of the Environment Act 1995.

They are intended to set out how local authorities and the Environment Agency should interpret and implement the complex new contaminated land provisions.

They are aimed at ensuring that 'the polluter pays' for any contamination.They fail in the sense that current landowners and buyers can still be caught by the provisions, even though they had nothing to do with the original polluting incident.

Also, sellers of contaminated sites benefit from certain exempting provisions; for instance, if they concede price reductions in favour of a buyer, or if they sell land having afforded inspection facilities to a buyer, whether or not the buyer took up the offer of a site survey and regardless of any price concessions.These points are fully discussed in the second edition of the Law Society's Environmental Law Handbook, and they have some potentially serious consequences for practitioners who are unaware of their import.How can a buyer be the 'original polluter' of a site? First, it is crucial to appreciate the definition of 'original polluter' or, in the words of the guidance notes, the 'class A appropriate person'.

The person is defined as 'any of the persons who [caused or] knowingly permitted the [contaminating substances] to be in, on or under the land'.

This includes anyone who knew the substances were present on the land, regardless of how they got there.Knowing can amount to actual knowledge, turning a blind eye to the obvious or refraining from enquiry for fear of the truth -- so if a buyer should have known or realised or could have found out that there was a possibility of contamination on the site, they may be caught.The longer it remains on site without anything being done about it, the more guilty the buyers become in the eyes of the regulators.

Therefore buyers can be class A appropriate persons, or original polluters.

The same is true of lenders, insurers, contractors and advisers, because they can be taken to have known about the activities of the client on-site, and assisted in the conduct of them.

Who pays -- seller or buyer? Let us assume, for example, that the seller of a site is the person who originally caused the contamination.

As between the seller and the buyer of the site (two class A persons), the guidance exempts from liability anyone making a contractually specific 'sufficient payment for particular remediation'.

Such a payment may come in the form of a price reduction by the seller.

This removes the seller from class A, leaving the buyer as the only class A 'original polluter', left to be served with a clean-up notice.Similarly, the guidance exempts any seller who sold land on 'arm's length terms', where the buyer had enough information available regarding on-site contamination to decide how to proceed.The guidance specifically provides that 'in transactions since 1990 between large commercial organisations, permission from the seller for the buyer to carry out his own survey should normally be taken as sufficient indication that the buyer had the necessary information'.

Thus, as between seller and buyer, any offer of inspection facilities will take the seller out of the picture, leaving the buyer as the only class A polluter left to be served with a clean-up notice.It follows that in most comm ercial cases the liability for contamination runs with the land and, as a buyer is likely to end up with the liability, it is better to investigate beforehand and make any relevant price reductions in the contract.

They should be accurately assessed and not guessed at in a rudimentary way.The key phrase is 'knowledge is power' -- knowledge of the actual state of contamination in the ground equips a buyer to negotiate a full and accurate price adjustment from a position of power.

Because of the advantage to the seller in making a full disclosure, an inspection at joint expense may be negotiable.This and other points arising from the new guidance notes are fully discussed in the Law Society's Environmental Law Handbook, (2nd edition) by Trevor Hellawell, published by the Law Society, price £17.95.