NOTICE REQUIRING OWNER OF DISUSED TIP TO CARRY OUT REMEDIAL OPERATIONS (Hansard, 21 January 1969)

§ Mr. Freeson
I beg to move Amendment No. 14, in page 12, line 5, at end insert: 'and any other person who, to the knowledge of the local authority, has an estate or interest, otherwise than as a mortgagee, in that land'. Under the provisions as at present drafted, occupiers, but not owners, of neighbouring land receive notices of remedial operations to be carried out by the owner of the disused tip on that neighbouring land. The purpose of this Amendment is to provide that in such a case the owner of the neighbouring land and others with an interest in it also receive a copy of the notice served on the owner of the disused tip. By this Amendment, everyone who could reasonably expect to be informed when remedial operations are to be carried out will be so informed and will be told of the nature and extent of these operations. In the light of the discussion we had in Committee there need be no discussion or controversy on what I am offering the House tonight.

§ Mr. Emery
I beg to move Amendment No. 15, in page 12, line 13, after 'tip' insert: 'or within six years before the passage of this Act whichever is the shorter'.

§ Mr. Deputy Speaker (Mr. Harry Gourlay)
With this Amendment we will discuss Amendment No. 18, in Clause 19, page 17, line 36, at end insert: 'or within six years before the passage of this Act whichever is the shorter'.

§ Mr. Emery
This is one of the most important Amendments we are to consider tonight, because it deals almost entirely with retrospection in the Bill. It is always the case that Oppositions, whether Socialist or Conservative, speak long and with much passion when they see retrospection creeping into legislation. At this late hour, I do not intend to delay the House with the traditional arguments heard so many times from this Despatch Box, but we on this side take very unkindly to the fact that as the Bill stands, retrospection is for 12 years back from any specific action being taken to obtain compensation or damages from a previous owner or anybody concerned in the ownership of a tip.
I argued in Committee with considerable force, I hope, that an owner may six years ago have taken every reasonable and proper course to ensure that the tip at that time was kept stable, and yet if the ownership of the tip is changed—perhaps the owner has died and the tip has gone to his estate or to his daughter who has had nothing to do with the tip at all—six years after this occurrence the owner can be called into court and asked to make a contribution to remedial action. That seems quite wrong to me.
In Committee we suggested that while we accepted that responsibility should be carried for 12 years once the Bill became law, we did not see why it was right and proper to take this course of retrospection at this stage purely for the sake of the Bill. Our Amendment was therefore to do away with retrospection altogether. This was defeated. We now come to the House to urge the Government to carry retrospection back for only six years, the normal time of legal limitation. We realise that there are instances in which limitation has been carried further, but we believe in this case that six years is as long as is necessary.
The Parliamentary Secretary said in Committee: The retrospection which concerns us is implicit in the nature of the situation with which we are trying to deal. I took the Parliamentary Secretary up on this matter and suggested that nothing was implicit in the situation about retrospection other than the retrospection which was being introduced by the Bill. In other words, the Bill was defining the 429 need for retrospection where no retrospection existed previously. At that point the hon. Gentleman became somewhat annoyed with me and said: I should not have my words played around with. I did not say that retrospection was implicit in the situation.—[OFFICIAL REPORT, Standing Committee B, 26th November, 1968; c. 121–5.] That is what the Parliamentary Secretary said, [interruption.] I am explaining the position. Earlier on that occasion I said that we could refer to HANSARD later to see precisely what the hon. Gentleman had said, and I apologised to him if I had misinterpreted what he had said.
It must be apparent that retrospection does not exist except by the passage of the Bill. While we can understand the Government wanting to find means of recouping money that might have to be spent, we do not necessarily believe that it is correct for them to do that purely by means of retrospective legislation. I will analyse the four reasons that the Parliamentary Secretary gave in favour of this course and why he felt that 12 years was necessary. He said: First, the results of work on tips are often slow to appear. … We accept that, but why 12 years? His argument could be applied to any period and there seems to be nothing to favour 12 years. He went on: … secondly, it is a reasonable assumption that if a tip has been stable for 12 years or so the causes of instability are likely to be of recent origin. … I have asked a number of persons concerned with coalmining about this and they have told me that that might be true, but that it is just as likely to be untrue. One can fairly say of that argument that it is just as likely not to be the case. The hon. Gentleman continued: … thirdly, it is desirable to limit liabilities which would otherwise continue indefinitely.… It could be argued in common law that if a person was in grave negligence in carrying out any action to ensure stability in the past, before this legislation, he could be held liable. I therefore do not see the need for retrospection if there is proof of gross negligence. Under the Bill gross negligence does not have to be proved; only ownership. There seems to be no advantage in limiting gross negligence to 12 years. Thus, that 430 argument of the Parliamentary Secretary falls. He went on: … fourthly, the 12-year period follows in line with previous legislation. The Limitation Act of 1939, which applies in England and Wales, lays down a similar period ".—[OFFICIAL REPORT, Standing Committee B, 26th November, 1968; c. 125–6.] The hon. Gentleman's final argument—that the Limitation Act allows a period of 12 years to be applied—is the weakest of all. Because something has been done in the past does not mean that it should be continued. Why carry forward the errors of the past, with extended retrospection, merely for the benefit of the Bill?
I do not believe that many such cases will arise or that the courts will be calling on past owners to a great extent. However, the type of case which worries me is the one where ownership of a tip has passed—has perhaps been inherited, changed or even sold—and where the present owners have had no part in the management of the tip; yet they can still be held liable under the Bill until 1981. That seems a strange situation, which the House should deplore.
I am not particularly happy about our Amendment, which limits the period only to six years, but it is more reasonable and falls in with current practice. If the Government are set on having some form of retrospection, six years would cover all the points the Minister argued. As a matter of grace it would be good sense for the Government to accept our Amendment. That would do the Government no harm—indeed, it would do them some good by showing that the arguments used by the Parliamentary Secretary in Committee, when he said that we were all opposed to retrospection—[Interruption.] I could quote them. It would show that he was carrying out part of the desire by cutting the period from 12 years to six.

§ Mr. Freeson
When we discussed this question in Committee, Opposition Members, as well as criticising retrospection, which has been the main burden of the speech by the hon. Member for Honiton (Mr. Emery) tonight, were also concerned that an owner of a tip, innocent of responsibility for its unsafe condition, might find he was liable for the 431 cost of remedial operations. This is precisely why the Bill gives powers to the courts to make an order requiring a contribution by a previous owner and anyone who has deposited refuse or caused or contributed to instability within a 12-year period.
It is important not to overlook, as the hon. Member completely overlooked, subsection (4) of Clause 19. This requires a court to have regard to all the circumstances of the case before it, and in particular to certain criteria. If a tip has changed hands six years previously, the cost of remedial work will not be automatically equally shared by the present and former owners. The subsection clearly points out the need for the court to assess culpability. The hon. Member argued as if this was not a matter for the court to decide, but the subsection clearly requires the court to establish that an owner within the previous 12 years was culpable, either wholly or partly responsible for the instability with which the Bill is concerned.

§ Mr. Emery
Of course I realise that and I have read with great care the whole of Clause 19. The culpability point is made in subsection (4)(a), but that does not stop the courts deciding that someone who is not absolutely culpable but who has had some benefit—perhaps out of the sale or by obtaining the pit—should bear the cost, perhaps not the complete cost or perhaps a shared burden, but a cost. That is not precluded.

§ Mr. Freeson
The hon. Member has misinterpreted the Bill. Culpability is considered in regard to serving the notice to appear in court. It is the whole purpose of a court action to establish that a person has contributed to the instability of the tip, thereby endangering lives. The subsection clearly specifies that it must be taken alongside the question of the twelve-year period of retrospection, the object being to obtain in whole or in part from people who have been proved to be culpable a contribution towards the cost of the remedial operations required.
The effect of the Amendment would be to restrict present owners' claims before the court on those past owners who have been wholly or partly responsible for the very circumstances which 432 have brought the matter to court. It is for those reasons, although I may have put them in short terms—I hope I have put them in clear terms—that we stand by the position as at present stated in the Bill.

§ Mr. Emery
By leave of the House—

§ Mr. Speaker
Order. We are on Report. It is not usual to have the leave of the House in these circumstances. But, by leave of the House, Mr. Emery.

§ Mr. Emery
Thank you, Mr. Speaker. I shall be short. You will realise that this is one of the most important of the Amendments—

§ Mr. Speaker
That may be so, but we are on Report. This is not the Committee stage.

§ Mr. Emery
This is one of the most important Amendments with which we are dealing. I find that the answer that has been given adds nothing to that which we received in Committee. I am most concerned that, while the culpability point is listed, this still does not—we are in disagreement about this—ensure that any person who has been in part ownership over 12 years cannot be held liable to make a contribution. I cannot see how on any reading Clause 19 can be interpreted to exclude that. It is specifically because of that that we find that we cannot agree, and I find myself unable to withdraw the Amendment.