ENVIRONMENTAL LAW ADVICE IS NO LONGER REGARDED AS AN ADD-ON, BUT AS INTEGRAL TO COMMERCIAL DEALS, WRITES ROBERT VERKAIKEnvironmental lawyers have never quite commanded the same kudos as their corporate colleagues.

A move to an environmental law department has sometimes been regarded as being a decision to gear down a lawyer's career.

And if an environmental lawyer was asked to join the firm's top mergers and acquisitions team it was to project a greener, more sensitive image, rather than to provide any added value to the client.But today, law firms cannot afford to ignore the environmental aspects of a deal.

Senior partners know that failure to advise on this area will lay the firm open to a claim.

And Tony Blair's commitment to green politics at the United Nations Earth Summit in New York last month is a reminder that we can expect more environmental legislation.Brian Greenwood, chairman of the Law Society's environment law committee and head of the environmental services unit at Norton Rose, acknowledges that while most City law firms have had an environmental practice for the last five years, they have been significantly under-used.

Mr Greenwood says: 'During the recession the environment came almost at the bottom of the client list.

If you were doing an acquisition and you wanted to save money you left out the environment aspect.'Like many environmental lawyers, Mr Greenwood is a planning lawyer who has branched out into environmental law.

Now he heads a seven-lawyer department encompassing both practices.

For Mr Greenwood, the combination of the green influence from Brussels and the growth of the international environment awareness movement has led to a qaudrupling of work.This is something that environmental lawyers working in the public sector have also noticed.

Michael Brainsby has been legal director of English Heritage since 1991, and has now been asked to set up the legal department at Millennium Central, the organisation managing the construction operation of the Millennium Exhibition.

He explains: 'Very few property deals are now done without regard to environmental considerations.'English Heritage sends much of its legal work to priv ate firms and Mr Brainsby said that practice has grown: 'We have undertaken two tendering programmes in the last six years, and there is no shortage of firms which have the technical competence to deal with the planning and conservation issues.

And more are getting that expertise.'Environmental law departments, considered niche practices when they were first set up, have now spawned their own specialisms within the environment arena.

Stephen Tromans, the first chairman of the Law Society's environmental law committee, set up the Simmons & Simmons practice as one of the first law firms to offer an environment capacity in 1990.

It now totals two partners, six assistants and a back-up team, including a research and information lawyer and several paralegals.

Unlike some of the City's other leading practices, Mr Troman's department does not include planning.He says that despite the growth in environment law there are still few law firms which have a 'genuine capability'.

He explains: 'There are a lot that will put out literature and say they have got [an environmental law department].

But it's a question of whether you can distinguish between the substance and the show.' Mr Tromans has gone on to develop one of the leading practices in nuclear law, a specialism only five of the big City firms can claim to have.He first encountered such work advising the Ministry of Defence in relation to the atomic weapons establishment at Aldermaston in 1991 and the sale of the nuclear-submarine base at Devonport Royal Naval Dockyard earlier this year.

Last month Mr Tromans and fellow Simmons & Simmons lawyer, James Fitzgerald, published the first modern text book on the subject of nuclear law, and have now been asked to advise the Department of Environment on a special research project for an underground waste repository.

Unsurprisingly, Mr Tromans says the work is 'highly complicated'.

He first took an academic interest in the subject when he lectured on the management of radioactive waste at Cambridge University.

Indicative of the changing role of the environmental lawyer, nuclear law now has a real commercial application.

'We advised a leading bank on the comparative risks of lending to the nuclear sector in five or six different jurisdictions,' he says.The Environmental Protection Act 1990 and the Environment Act 1995 established a new approach to the purchase of property.

City lawyers with little environmental practice experience suddenly found themselves having to carry out environmental due diligence which required the investigation of the uses and history of a site.

Norton Rose fulfilled this role in BMW's purchase of Rover.

When the nuclear industry was sold off Mr Greenwood and his team, like the Simmons environmental department, advised the banks, which were lending money to the new owners, on any environmental liabilities.

'These were questions that people just weren't thinking about,' says Mr Greenwood.

The creation of the Environment Agency led to more rights and duties being placed upon developers and local authorities.

This proliferation of environmental law and red tape has in some situations, he says, led to 'regulations getting out of control'.

More and more, the agency is being caught in the middle where it is criticised by business for over-regulation and attacked by the public for not regulating enough.

'The agency is in a no-win situation,' Mr Greenwood adds.

'The regulation is now beginning to interfere with the best environmental/commercial interest of industry.'Mr Tromans says that because the heart of the City law f irm is its corporation practice, the environment department in many practices tends to be an adjunct to the mergers and acquisitions deal-making teams.

However, he predicts that the modern environmental law practice will be a more rounded operation including criminal prosecutions, litigation and regulatory work.

The Simmons department has already worked for the government, the Countryside Commission, English Nature and action groups such as the Tidy Britain Group, the Royal Society for the Protection of Birds and the National Federation of Badger Groups.But it is not just the prospect of a whole range of potential new clients brought into the firm which makes an environmental law department an invaluable asset to the modern legal practice.

Law firms which do not ask the right environmental questions could end up defending their lack of action in court.

This is a message the Law Society is keen to get across.STEPHEN WARD TALKS TO SOLICITORS WORKING PRO BONO FOR ECO-WARRIERS WHO HAVE BEEN DENIED LEGAL AIDSwampy and his friends, living in trees or tunnels trying to block bypasses and runways, seem unlikely allies for high-flying solicitors.Yet while protesters increase the complexity of the physical barriers erected in front of bulldozers, equally resourceful solicitors are devising legal impediments to block developments.Martin Polden, a partner in City firm Ross & Craig, bemoans the fact that lawyers often come on the scene too late to fight a case effectively.In 1992 Mr Polden was a founder of the Environmental Law Foundation (ELF), of which he is now the president.

It is an organisation dedicated to linking residents' groups with more than 300 sympathetic solicitors and barristers.'By the time solicitors are instructed, the best chances will often already have been missed,' he says.

Another environmental law expert, Liz Loughran of Clyde & Co, says that often non-expert solicitors will have handled the early stages of environmental litigation.

They may have missed some of the more creative possible defences.

'Environmental law is specialised like any other branch, but you probably have to be more prepared to think laterally than in other areas,' she suggests.Mr Polden points out that funding is seldom as straightforward for environmental cases as for other areas of law.'The bulk of our casework turns on issues based on land-use, principally in terms of local plans, and of course for that there is no legal aid,' he says.

'Our difficulty is that unless we can actually convert the issue to one where torts are involved, it's very rare that we get get legal aid.'However, Mr Polden adds that there are exceptions.

'We have managed legal aid on judicial reviews which can relate to land use and we have got legal aid on nuisance cases, but it's not often,' he explains.

The ELF policy is to give a free initial consultation, and to be prepared to negotiate reduced rates afterwards for clients who may be pressure groups like the Worldwide Fund for Nature, or residents' associations, or a coalition of such groups.The payback for the solicitors apart from the virtuous feeling, comes from the publicity, the experience and the pro-file-building.Legal aid for a judicial review of the decision to grant permission for a new runway at Manchester Airport was refused last month to the annoyance of Ms Loughran, the objectors' solicitor.

She says: 'The Board very rarely grants legal aid in environmental cases.

As a result, the case was taken to the High Court by litigants in person, faced with a full team of barristers, and they lost.

'One environmental case, which Mr Polden sees as seminal, did receive legal aid, although the outcome demonstrated the difficulties inherent in fighting on environmental grounds.In the late 1980s, residents in some of the poorest districts of the East End of London began seeking damages for the nuisance caused to the local people by the Canary Wharf tower.

The weaker legal grounds of the asthma and eczema suffered by many residents had to be dropped as these are illnesses where the cause is always difficult to prove.The cases cited alleged physical damage caused by the dust from building the Limehouse road link, and the loss of television reception when the Canary Wharf tower blocked their signal.'I regret that the facts of the case have never been heard by a court,' Sally Moore of Leigh Day & Co says.

'It seemed wise to argue the law first, but I think now it might have been better for the extent of the suffering to be heard.'The case finally reached the Lords last year, where the ruling constituted two blows to the environmentalists' cause.

The loss of television reception caused by a building could not constitute an actionable nuisance.And more seriously, the Lords ruled that only those with a legal interest in property could sue for nuisance.

'This means anybody without a legal interest in the property, such as children, has no right to sue,' says Ms Moore, 'I was bitterly disappointed.'She is deciding whether the case would still be viable for the small number of residents who do have a proprietary interest in their properties.Often lawyers find they are having to call on non-environmental laws to get anywhere.

On the Manchester Airport extension, for example, last month Ms Loughran persuaded the European Commission to investigate the case on competition grounds, alleging the airport is in breach of the Treaty of Rome because it is subsidised by Manchester City Council.

Her clients, Mobberley Parish Council, and a nominal elector from Manchester, submit there is prima facie evidence of unlawful state aid of more than £200 million.But what she finds frustrating as an environment lawyer is that even if she wins it will make case law which will be important for competition law, but probably not applicable to other environmental cases.At the other end of the scale, groups are fighting to save hedges by using the Enclosure Act from the 18th Century.The first such case was successfully argued without a lawyer by a villager in Flamborough, North Yorkshire, in order to prevent his parish council grubbing up a hedge to build a bowling green.Since then, Richard Smith, a partner at Oxford firm Dallas Brett, has begun acting in a similar case for the parish council in Steeple Aston, Oxfordshire, against a developer, and is about to start a third case, representing a residents' association against a developer.To some environment lawyers, the direct action of Swamp et al, represents something of a distraction.

By the time police and cherry-pickers start pulling people out of trees, issues of criminal damage and civil liberties, have taken over from the issue of damage to nature.But others argue that protecting protesters' rights against unlawful action by the authorities is a legitimate part of the coalition to protect the environment.Swampy, whose real name is Daniel Hooper, has, like other protesters, used local general practice solicitors when facing public order offences and criminal damage charges.

But for the protesters' civil actions -- mostly for unlawful arrest, false imprisonment and personal injury -- they usually go to Sheffield-based Irwin Mitchell.

The road protesters apparently networked with animal rights activists who had used the firm in the past, and each new development site and conflict with the authorities brings new clients.Irwin Mitchell partner John Davis says Hampshire Police, who policed the M3 extension across Twyford Down in 1993, have paid £400,000 in compensation to protesters so far, coming from settlements made both in and out of court.Protesters are not rule-followers in their everyday lives, but this changes when they go to law, according to Mr Davis.

They particularly appreciate the value of the statement and apology in open court.

'As clients, they are intelligent, and they take advice,' he insists.JOHN HUNTER EXPLAINS WHY CONVEYANCERS WHO DO NOT CHECK WHETHER PROPERTY IS ON CONTAMINATED LAND COULD SOON BE SUEDConveyancing solicitors who turn a blind eye to environmental issues generally, and contaminated land in particular, will do so at their peril.

When the provisions in the Environment Act 1995 relating to contaminated land come into force -- no date has been set for this yet -- conveyancers may face a raft of negligence claims.The 1995 Act will take contaminated land out of the statutory nuisance regime of the Environmental Protection Act 1990.

Local authorities will be able to serve remediation notices on polluters.

Generally, the polluter will be the person who caused the pollution or knowingly permitted it (class A polluters), but if class A polluters cannot be found, then the owner or occupier of the land (class B polluters) can be served with a notice.

Draft guidance has been issued, although ministers in the new government have yet to decide whether they intend to press on and implement the legislation, or whether to revise it.There may be a temptation to assume that the risk of a purchaser of contaminated land being called upon to pay for the cost of remediation is low.

There are, however, circumstances when an original polluter can be excluded from liability.

These include a case where a class A polluter has sold on arm's length terms to a purchaser who has sufficient information to be aware of the pollution risk.

In such circumstances, the purchaser may well be the person solely liable for the cost of remediation.If people buy contaminated land and are faced with the cost of remediation, they may well wish to pursue a claim against their professional advisers.

Even if the legislation is not brought into force, we may still see claims being brought in respect of blight, or in respect of reduced land values.Surveyors certainly seem to be taking this advise to heart.

A client recently gave me a home purchaser survey and valuation report, which he had commissioned in connection with a house built in the 1980s.

The report contained the following statement: 'We have not investigated whether the site has or may have been put to contaminative uses in the past and your legal adviser should ascertain whether the subject property is built on land which has a history of contaminative use before you enter into any legal commitment to purchase.

Our report is on the assumption that the land has not been put to contaminative use and would not be placed on a Register of Land which may have been put to contaminative use should such a Register be compiled in the future.'Solicitors should be aware that surveyors probably will not have professional indemnity insurance to cover them against this risk, and there is evidence to suggest that some of them may be deliberately attempting to transfer r esponsibility to solicitors.

If we are the only professionals with insurance cover, then claims may be inevitable in any event.What action should solicitors be taking? The ability to spot previous contamination is limited, particularly if the source of the contamination is on land some distance away.

While some local authorities did collect information in anticipation that they may have to compile registers of contaminated land, not all did so.

Moreover, searches will usually be in respect of the land being bought and not in respect of neighbouring land from which substances may be leaking.

The Environment Agency will provide certain information on request, but this is at an additional cost.

It is, of course, possible to raise specific enquiries before contact relating to possible contamination, but enquiries before contact are often not raised in respect of domestic properties, particularly if the Law Society's protocol is being followed.

Old deeds may given clues, but these may not be available if the title to the land has been registered.

Specialist desk studies can be commissioned if the client is prepared to incur the cost.

Site inspections may give clues to previous activity on land.

Conveyances may soon, as a matter of course, have to advise their clients that solicitors do not normally investigate whether property has been put to contaminative uses in the past, and that such work would only be undertaken for them at an additional cost.

But will this be enough to protect practitioners from claims of professional negligence?