As part of the contractual division of risks between the parties, the purchasers did indeed take upon themselves the risk of discovering contamination in the land, but they also knew that a soil survey would be conducted that would be able to present a more accurate, albeit not complete, picture of the condition of the land. The defendant was the one who took upon himself the risk that the agreement would not enter into force if he did not fulfill any of the conditions of the approval in principle.
Although the defendant did not undertake to bear the consequences of the discovery of the contamination of the land, he undertook to fulfill the conditions set out in the approval in principle, and only after their completion would the agreement come into effect. One of the conditions stated in it is to obtain the opinion of the Regional Environmental Protection Unit.
These conditions were not merely a formal demand. The land was used in the past as a leather processing plant, an activity with a high potential for soil pollution, and the requested purpose was the construction of a gas station, which is also an environmentally sensitive use. A soil survey and environmental opinion are intended to provide a true picture of the extent of the existing pollution, if any, and to enable appropriate planning of rehabilitation solutions if necessary. This is all the more reinforced in light of the demand of the Regional Environmental Protection Unit of April 27, 2015, which determined that "new construction on the lot should not begin until the completion of the land survey and the approval of the Ministry of Environmental Protection that there are no additional requirements relating to the contamination of the land in the lot." This is especially true when, as will be further detailed below, the process of obtaining the approval of the Ministry of Environmental Protection is a long and lengthy process.
In accordance with the provision of clause 3 of the agreement, the defendant undertook to "act continuously and with due diligence in order to fulfill all the conditions specified in the approval in principle". The condition for receiving the opinion of the Regional Environmental Protection Unit is one of these conditions. If this condition is not properly completed, it means that the plaintiffs were given a different property than the one agreed upon and that they were deprived of the right to enter into the agreement after an environmental survey was conducted, in which case the "land picture" is clearer as well as the actions to be taken in the case of contaminated land.
- In summary, as part of the agreement, the defendant undertook to act to ensure that all the conditions of the approval in principle are met. One of these conditions is the acceptance of the opinion. Therefore, it is necessary to examine whether the defendant has fulfilled this undertaking.
The Defendant's Conduct
- After signing the agreement, the defendant acted to complete the conditions of the approval in principle. On March 12, 2015, ESD submitted the land survey to the Ministry of Environmental Protection. In section 5 of the survey - the sampling plan - it was determined that the soil tests would not be carried out in the area of the factory itself, which is used for storage, and in the areas where an active business is conducted, and that "the land investigation will be carried out after the removal of an existing upper structure. The aforementioned was in coordination with Mr. Oren Tavor, a regional unit for environmental protection." About a month later, on April 27, 2015, Mr. Oren Tavor informed the Building Licensing Department of the Kfar Saba Municipality that there was no impediment to approving the building permit, subject to a number of conditions. One of them, which relates to our case, states that it is not possible to begin new construction on the lot "before the completion of the land survey and the receipt of the approval of the Ministry of Environmental Protection that there are no additional requirements regarding the contamination of the land in the lot." A copy of this letter was sent to the defendant. Idan confirmed in his testimony that he had coordinated with Oren Tavor that the investigation of the land under the factory building would be carried out only after the demolition of the structure, but he claimed that he did not remember receiving the letter of April 27, 2015 (p. 153 of the minutes of November 18, 2024).
I will note that I am not convinced that the letter did not reach the defendant and even if it was in this version, it is sufficient that Idan took part in the inquiries to Mr. Oren Tavor and knew of the existence of the agreement according to which he would postpone the execution of soil sampling tests under the factory area, until after the demolition of the factory, requirements that were required as part of the land survey that the defendant undertook to complete.