§ 6.35 p.m.
§ LORD STONHAM
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Stonham.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD STRANG in the Chair.]
§ Clauses 1 to 3 agreed to.
§ Clause 4 [Notification of beginning and ending of tipping operations]:
LORD ABERDARE moved Amendment No. 1:
Page 4, line 20, after ("days") insert ("or such shorter period as the Inspector may exceptionally permit").
§ The noble Lord said: Under this clause the owner of a mine or a quarry is required to give not less than 30 days' notice before beginning new tipping operations. This in general is a welcome provision, and indeed was inserted on Report stage in another place as a result of suggestions made by the Opposition there. But there remains one worry which this Amendment seeks to overcome. That is the case where, for some unforeseen reason, it suddenly becomes impracticable or dangerous to continue tipping on the normal site. Somewhere some alternative site has to be found to tip the rubbish unless the whole plant is to be brought to a standstill while 30 days' notice is given to find a new site. I realise, of course, that if a closed tip is available—that is, a tip formerly used by the mine or quarry and still in its ownership—the inspector may allow a lesser period of notice under subsection (3). But it may well be that no closed tip is available. What is the owner to do then? He cannot use the present tip because for some reason it has become impracticable or dangerous. He has no alternative closed tip on which to dump the rubbish, and he has to give 30 days' notice before he can dump the rubbish on a new site. The object of this Amendment is to introduce a little 768 flexibility into the procedure and to allow the inspector the discretion to allow a shorter period of notice in certain exceptional circumstances. I beg to move.
§ LORD STONHAM
As the noble Lord pointed out, this Amendment, if it were accepted, would apply to those areas where tipping operations are begun on a virgin site. It does not apply to where an existing tip is re-used or brought into use again, because there the inspector can act in less than 30 days. Normally this Amendment would be unnecessary because, as the Aberfan tribunal pointed out, tips should be treated as civil engineering structures and the normal procedure of preliminary site investigation would be applied. These requirements will be laid down in regulations which will be made under subsection (2) of Clause 1, and they will have to be complied with before tipping operations begin. Planning permission will probably have to be obtained, and both of these actions will take up a considerable time.
We are anxious to ensure as far as possible that prudent mine and quarry owners will make all the necessary arrangements for new tipping sites well before they expect to use them. The National Coal Board already plan ahead in this way, and there is nothing whatever to prevent a mine owner from making all the necessary arrangements well in advance so that he has a tip or an area for tipping available if it should be required at short notice. But we recognise that, as the noble Lord, Lord Aberdare, said, there may be exceptional circumstances, and there may well be cases where the inspector knows the site quite well and would be in a position to say "Yes" in less than 30 days. I should be prepared in principle to recommend the Committee to accept the Amendment, but it requires some redrafting. Therefore, if the noble Lord is prepared to withdraw the Amendment, I will give an assurance that I will table an Amendment on Report to meet the point.
§ LORD ABERDARE
I am grateful to the noble Lord and am immensely encouraged that I have achieved such success at the very first try. I accept his assurance with great gratitude. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.769
§ Clause 4 agreed to.
§ Clauses 5 to 8 agreed to.
§ Clause 9 [Penalty for offences relating to tips to which Part I applies]:
LORD ABERDARE moved Amendment No. 2:
Page 7, line 47, leave out from beginning to end of line 3 on page 8 and insert ("and the court by which that person is convicted is satisfied that the contravention in respect of which he is convicted was likely to cause the death of, or serious bodily injury to, any person, or was likely to endanger the safety of any person, the court may impose upon the person convicted either in addition to or in substitution for any fine authorised by section 155(1) of the principal Act imprisonment for a term not exceeding three months.").
§ The noble Lord said: This is a matter which we discussed shortly on Second Reading, and it relates to the penalties for offences committed under Part I of the Bill. I have no quarrel at all with the fact that all tips are potentially dangerous, and in certain circumstances it is quite right that the courts should be able to impose a penalty of imprisonment. But as the clause stands at present, it is possible for a penalty of imprisonment to be imposed for any contravention of any provision of Part I of the Bill and this, to my mind, introduces certain anomalies. For example, it would apply to an offence under Clause 3(1) of failing to secure adequate information, or to an offence under Clause 5 of making inappropriate tipping rules.
§ Of course, as the noble Lord, Lord Stonham, said on Second Reading, no court would impose such a penalty for such an offence, but while we are drafting an Act of Parliament I suggest that we should if possible he precise. Therefore, the Amendment follows exactly the wording of the principal Act—the Mines and Quarries Act 1954, Section 155(2). It seems to me that if the principal Act specifically reserves imprisonment for offences endangering the safety of persons, it is equally right that this Bill should follow that precedent. On Second Reading the noble Lord suggested that to do so might introduce an element of chance, according to the particular time that any offence was committed. This would no doubt be so if the offence depended on actual injury or danger to persons, but it does not. The Amendment merely relates to an offence which 770 is likely to cause injury or danger, and in doing so it follows exactly what has hitherto been perfectly satisfactory in the principal Act. I suggest that this Amendment would be an improvement to this Bill. I beg to move.
§ LORD STONHAM
Subsection (1)(b) of Clause 9 is not now in its original form. It was amended to its present form by the Government in another place precisely in order to meet the Opposition's case, that the penalty of imprisonment should be available only for offences which were likely to endanger persons, not property. The penalty which originally applied to all contraventions can now only be inflicted for an offence,of such a nature that it impaired, or might in the opinion of the court have been expected to impair, the security of the tip".In our view, the present wording, made after full consideration and amendment, is the right wording and should not be further amended. The Aberfan Tribunal said that tipsshould all be regarded as potentially dangerousbut thatsuch dangers as arise are almost invariably in respect of active working tips".It is in order to prevent danger arising that subsection (1) of Clause 1 of the Bill requires every tip to which Part I applies to be made and kept secure. Any offence which impairs the security of a tip makes it dangerous, because people will be on or in the immediate vicinity of a Part I tip—that is, an active tip. For example, they will be performing tipping operations or carrying out inspections which will be required by Regulations. They are likely, therefore, to be in danger if a Part I tip becomes insecure.
In our view, the Amendment of the noble Lord, Lord Aberdare, to add a provision to the effect that the court must be satisfied that the offence was likely to endanger the safety of any person, is thus unnecessary, and in our view its acceptance would at best make the clause more complicated to no useful purpose. At worst it might enable an offender to avoid imprisonment, if he could show that in the particular circumstances of his case, and perhaps through pure chance, no person was likely to be in danger at that particular time; for example, if the mine was closed down for a 771 holiday, or if the people living in houses close to it were not in their houses because they were on holiday, and were therefore away from them. Although this might be the position at the time of the hearing, the offence might nevertheless have consequences which were slow to develop and which could result in persons being injured or killed at a later date, or when circumstances changed.
We think that it is of the utmost importance to bear in mind all the time that the object of the Bill is to ensure that tips are so constructed and maintained as to prevent another Aberfan, and that an offence under Part I which prejudices the security of a tip is one which could have very serious consequences, because it is liable to create a danger to workmen or the possibility of a tip slide. In our view, the clause as drafted, after amendment in another place, already makes it clear that minor offences of a technical nature do not attract the penalty of imprisonment and are punishable only by a fine.
I agree with the noble Lord, Lord Aberdare, that it is very nice to start off by getting a winner at the first shy, and I should have liked to keep up the record. But I hope I have satisfied him that the Bill is better and safer as it is and more likely to ensure our object, than with his Amendment. I hope he will feel able to withdraw it.
§ LORD ARWYN
I should like to put myself, a coalmining engineer, in the position of the manager and the owner. I would draw your Lordships' attention to Clause 3 of the Bill, which states, in effect, that it shall be the duty of the owner and of the manager of every mine and quarry to take steps so as to be at all times in possession of all information relevant for determining the nature and extent of any steps which it is requisite for them to take in order to discharge their duties efficiently. It seems that under Clause 9 such an owner or manager is liable to imprisonment for failing to secure the requisite information. Some clarification of Clause 3 is therefore necessary, and it might help if the Bill defined under which headings the requisite information was required. The manager could then take steps to see that he had taken every precaution to ensure that he was not liable to imprisonment, 772 and to see that he was able to satisfy the authority by answering every question within his power. What is more important, he could inform them of any inability on his part to supply highly specialised knowledge until such time as a survey had been made by specialists.
§ LORD ABERDARE
I am grateful to the noble Lord, Lord Stonham, although I am not sure that I am completely convinced by what he said. He gave an example of a mining community where people might be on holiday and away from their homes. But I should have thought that that, quite clearly, would not arise where the court was required to say that the offence was likely to cause death or serious bodily injury. You could not really say that, because people were not in their homes at the time, just for that reason the offence which had been committed was not likely to cause bodily injury. All I was trying to do was to make sure that we were specific in the Bill and that, rather than leaving it to the discretion of the court to impose a penalty of imprisonment only for serious offences, we should spell it out in the Bill, and spell it out in exactly the same way as in the principal Act. I should have thought that what was good enough for the principal Act was good enough for this Bill, too. But I should like to look at it again, so I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 9 agreed to.
§ Clause 10 agreed to.
§ Clause 11 [Local authorities having functions under Part II]:
§ 6.50 p.m.
LORD MILVERTON moved Amendment No. 3:
Page 9, line 10, leave out ("subject to sub-section (4)").
§ The noble Lord said: With the permission of the Committee, I will deal with Amendments Nos. 3, 4 and 5 together. The reason for these Amendments is that under Part II of the Bill county boroughs, London boroughs and county councils are given powers to ensure that disused tips of refuse from a mine or quarry do not, by reason of instability, constitute a danger to members of the public. Non-county boroughs and 773 urban and rural district councils will not have these powers, though county councils may delegate to them any of these functions. There seems to be no reason why county councils should be thought better qualified to carry out this work than the other local authorities in their areas. The town hall is surely the place to which the public would most likely go in a matter within the scope of this Bill, and it is closer to the problem than the county hall. Non-county boroughs and district councils are, of course, the public health authorities, and they are accustomed to taking action in the public interest to abate nuisances, to which this legislation is closely related.
§ It is difficult to accept the view expressed by the Minister on Second Reading in this House on January 28, that restricting the powers to county councils would mean that the technical staffs would be available. All authorities, irrespective of size, may need special expertise, such as that possessed by the Inspectorate of Mines and Quarries, to help them to exercise their powers; and, though the Minister has given assurance that the advice of the Inspectorate will be available on request, it would surely be better to provide specifically to this effect in the Bill, as well as to define the extent of the help which will he given. We are proposing two Amendments for this purpose to Clause 12 and Clause 17. Given, however, the Minister's intention that the fullest help will in fact be available from the Inspectorate, there seems to be every reason why local authorities —that is, non-county boroughs and district councils—should have these powers directly conferred on them.
§ At an earlier stage a suggestion was made that concurrent powers should be given to county councils and county district councils. The Minister, however, I understand, thinks it undesirable that concurrent powers should be exercised at two local authority levels, since, as he said, there is always the possibility that one would fail to take action believing that the other would do so. To meet that criticism, and for the reasons advanced, the Amendments suggested seek to give the functions to the local authority instead of to the county council. I beg to move Amendment No. 3.
§ LORD BURDEN
I should like to support, quite briefly, what has been said by 774 the noble Lord, Lord Milverton. The Amendment comes to us from the Association of Municipal Corporations, arid is meant in no way to reflect on the work of the county councils. It is put down because the district and other councils are in the nature of things more closely in touch with the problems than the county councils are.
In a general way I should like to submit for the consideration of the Committee that more and more land—arable land, and land under cultivation—is being taken for roads, schools, airports and public amenities of that kind. Yet there are many thousands of acres in this country covered and derelict because of the waste from pits, quarries and so on, in bygone days. Very little, if anything, is being done to bring that land into public use, though it call be done. I remember that, when I was a member of a local authority, we had a fairly large area covered by waste. That was cleared, and was turned into very useful playing fields.
We are warned by authorities almost every month that the population explosion is bringing the world nearer to starvation, yet on the very doorsteps of local authorities there are acres and acres of land that are not being utilised because nobody gets down to the problem. It is because we believe that, with the incentives given in this Bill, we can get some of this land under cultivation fairly quickly that we urge the Minister to let the local authorities, who are those closest in touch with the problem, to use their powers. I repeat that this Amendment is in no way a reflection on the good work that county councils have done and are still doing. It is because of the urgency of the problem, and because the local authorities are nearest and are more aware of the problems than the county council can be, that we urge the Minister to accept this Amendment and the following Amendments, which I think are consequential.
§ LORD ILFORD
These three Amendments deal with a subject which he s been discussed on a number of occasions during the last few years. Whenever new powers are conferred on local authorities the Bill always restricts the authorities affected to the county councils and the county borough councils. Then the Departments turn round later on and say 775 that the district councils have no powers and can be disregarded. It really is time that the Government seriously considered whether some of these new powers which are being given to local authorities ought not to be given to the district authorities.
In the case of this Bill, the power of inspection is precisely the sort of power which the district councils are accustomed to exercise under the Public Health Acts and other Acts, and which they can exercise just as readily as the county councils—indeed, more readily. At present neither the county councils nor the district councils possess the necessary technical staff to carry out the requirements of this Bill; they will have to rely on the Inspectorate of Mines and Quarries. Both authorities are in exactly the same position so far as their technical advice is concerned. I say to the Government that this continued policy of refraining from extending new powers to district councils really ought to be reconsidered. Where new powers are given to local authorities which are powers suitable for administration by the district councils, the district councils should be given the opportunity of accepting them.
§ LORD BRECON
I am sorry that I cannot support my noble friend Lord Milverton and my other noble friends. I believe that the responsibilities of inspection of these tips under Part II of the Bill should remain with the county councils. There are some very small local authorities which are district councils. Each will need to appoint staff who are qualified in soil mechanics in order to carry out their functions. It will be a costly business for the ratepayers of each of those areas. I think that the county councils with their county surveyors can look after this. They are making roads already, they have some knowledge and they have staff who know something about soil mechanics. Even then, the county council do not want to spend a great deal of money on this type of staff if the Inspectorate already have it and will supply the service. Rather, I would ask the Government to see to it that the Inspectorate have the proper staff—because if the local authority ask an outside firm to survey even a small tip it can cost £10,000.
776 Another factor is that a county council is not generally a water authority. Those of us who know Aberfan and the tragedy that happened there will recall that its primary cause was the sliding of the tip. But there was a secondary cause which contributed greatly to the damage: the fracturing of two 30-inch water mains that were laid in the bed of the old canal. This added to the extent of the tragedy. I do not think it would have been so great a catastrophe if these pipes had not been there. The mains carried water from the reservoirs six miles away. When they fractured the water ran for two hours. At the moment there is a tip at Cilfynydd which has slipped in the past. They have just laid another 30-inch water main along the bottom of the tip. If that tip slides and breaks the main, all the water, right back to the reservoirs, or at least back to any safety valve or automatic valve, is going to rush out into the area.
I think the county council is the authority to look after this matter. Incidentally, it is assumed here that no local authority will do anything to cause any damage or sliding on a tip. I do not accept that. I think the local authorities can cause extra danger and hazard in their work on these tips. In any case, we may be going to see before long from the Government vast changes in local government. We are going to see fewer small authorities and more large authorities. Those changes might make a difference; but, for the time being, I hope that this authority, this inspection, will stay with the county councils.
§ LORD BURDEN
I should like to call the noble Lord's attention to the Preamble to this Bill, which points out that since 1966 only one tip has been dealt with and a little remedial work has been done. With the problem on their doorsteps—and I know that the local authorities are aware of the problem—nothing has been done. It is because we want to break up the problem and give it to all the local authorities that we are pressing this Amendment.
§ LORD ENERGLYN
I should like to echo the comments of the noble Lord, Lord Brecon, regarding the size of the bodies that are to administer many of the clauses of this Bill. As the noble Lord rightly pointed out, the cost of 777 surveying alone for any tip is a very sizeable sum of money. You need experts in soil mechanics, geologists and expert surveyors. I should like to place on record the difficulties of surveying the surface of a tip. It is not like surveying the surface of a solid mountain, because the surface is constantly on the move. There are many different techniques that can be used but they are all expensive, and therefore I should like to keep the area of responsibility to the largest possible scale. Many of the clauses in this Bill will have to be implemented quickly if we are to achieve the main purpose of the Bill, to render every tip safe. At present there are not the personnel available to do this job in toto. We must think of this in the short-term and the long-term view and therefore I should have thought myself that the largest authority ought to be selected for this purpose.
As far as cost is concerned, I might point out that there are already sources of information in this country which are rendered as a public service. Let me take them one by one. First, there are the geological maps that are necessary. This country boasts of having the oldest geological survey in the world. I am proud to say that it is the mother of all geological services of the world; they are all patterned on it. Thanks to this fact, there are deposited in the Institute of Geological Sciences adequate geological maps, which are there "almost for the asking". These sources of information are readily available. Secondly, I should like to mention the splendid work done in the training schemes of the R.A.F. in aerial photography. I must declare an interest here because I originated the use of aerial photographs in the study of coal seams and tips in South Wales in the early 1940s. But photogrammetry has grown enormously. To-day we have a technique which could produce maps which will supplement specific geological maps.
This could not only speed the implementation of many clauses of this Bill but also render several different kinds of services. The first is that it could provide the site manager (who is the most important person at the moment of catastrophe) with an intelligible map. A geological map normally requires an expert to interpret it and use it; but an aerial 778 photograph suitably inscribed with the geology can be used immediately. It will tell the site manager several important things, such as the volume of material on slide, where the slide is likely to take place, where it will ultimately end up. These are important in an emergency.
The second, rather curious, outcome of this technique is that in suggesting the use of aerial photographs for the control and inspection of sites on a national basis —and I am suggesting this—we should be contributing to an area of endeavour which is quite important from the point of view, oddly enough, of invisible exports. We have outstanding firms in this country who work abroad surveying uncharted areas of the earth. They earn for us considerable sums of money as invisible exports. if they had a home-based contract to survey such tips as at tragic Aberfan (and let us not forget that there are equally dangerous tips in places like North Wales; slate tips are dangerous and difficult to maintain) they could keep down their overheads, improve techniques and so win bigger and better contracts abroad. This may appear an odd outcome of my suggestion but it is nevertheless an important one. Briefly, I support Lord Brecon's suggestion that we do not reduce the size of the authority controlling inspection and the ultimate remedial measures concerning the tips.
§ 7.10 p.m.
§ Lotto STONHAM
I was beginning to believe that before the end of this Committee stage my limited knowledge of this subject would be utterly blinded by science. It makes a nice change from Home Office business and lotteries, which we discussed earlier. We are here considering three Amendments together. Amendment No. 3 is a paving Amendment to No. 4 which is the substantive Amendment, and No. 5 is consequential upon No. 4. I must congratulate the Association of Municipal Corporations on its stalwarts. When I heard the three speeches I began to wonder whether I should stand alone in putting the case for the county councils and I was the more relieved therefore, to hear the noble Lord, Lord Brecon, speak up in respect of size. In many parts of the country I do not think that it is only a question of size; it is also a question of population and resources. I believe that the 779 entire population of the county of Merioneth, or at least the electorate, is not more than 29,000.
§ LORD STONHAM
It underlines how small some of the local authorities must be in areas like that. Clause 11 at present provides that the local authorities which have functions provided in Part II of the Bill are the county council or the county borough council; and in subsection (4) the county council is given power to delegate some of or all of the functions to a county district council by agreement. The Amendment we are considering is not a technical one. It is not one which depends, as it were, on technical knowledge. It proposes, bluntly, to take the Part II powers in the Bill away from the county councils and give them to the county district councils. To me it seems an extraordinary proposal to take away from the county council authorities all the Part II powers under the Bill.
We have the Bill in its present form because we seek flexibility. We want to draw everybody into taking action. My noble friend Lord Burden spoke of the need in so many areas to reclaim land, and to get into useful use land which is at present disused. I am in entire agreement with that. However, I cannot see how county councils are any less anxious to do that than other local authorities. I would remind my noble friend that grants are available to local authorities under the Local Government Act 1966, and under the Industrial Development Act, for the reclamation of derelict land The point is not of direct and immediate concern to the one that we are discussing but as my noble friend raised the matter I thought I would mention that point to him.
Everybody cannot be drawn into taking action, as we would wish, if in this Bill we restrict the technical officers of the authorities who are unable to participate. The object of subsection (4) of the clause is to ensure that whereas county councils will normally have the technical staff on a greater scale to enable them to undertake this kind of work than the local district councils (which almost by definition 780 will be smaller and have less resources) it is the district councils which have the local knowledge; and it is important to get the optimum mix of technical forces and staff and local knowledge to get the job done as soon as possible wherever the problem has to be faced.
I hope that the noble Lord who moved the Amendment and his supporters will not take it amiss if I say that it seems to me that there is something parochial about the thinking behind the Amendment. Surely the one object we all have in mind is to get the best equipped and the most knowledgeable organisation available in any given area. Surely the most promising way to achieve that is co give the power to the larger local authorities, which virtually, by definition, will have the most resources, and to say to them, "You can delegate part or all of your powers if in your area there are authorities with local knowledge and with more resources". As my noble friend Lord Energlyn underlined very much, in many cases this is a big job which requires a great deal of expertise and knowledge which will not in all cases be available immediately to every county council.
§ LORD ILFORD
May I interrupt the noble Lord? Neither the district councils nor the county councils possess the expert knowledge needed to carry out this duty. Both authorities will have to rely on the Inspectorate of Mines and Quarries for what they do.
§ LORD STONHAM
I heard the noble Lord make that point, and what he said is quite true. But I would remind him that we have now reached Part II of the Bill and it is in Part I that most of the responsibilities of the Inspectorate lie.
Another reason for the later Amendment to which the noble Lord, Lord Milverton, referred is the consciousness of district councils that not only have they not the necessary resources, in means and men, available, but they have them to a lesser degree than the county councils are likely to have them, and therefore they seek, as it were (we shall be considering this later), to put these responsibilities on to the Inspectorate. As I shall have to point out later, the powers, and even the knowledge and 781 responsibilities, of the Inspectorate in these matters are strictly limited. It will be imperative for the county councils, the authorities with these responsibilities, to employ outside experts and consultants for many of the jobs and consultations which will have to take place.
The noble Lord, Lord Milverton, referred to the Second Reading debate. May I remind noble Lords what I said then on this point:The Bill provides that the powers shall reside with the county councils but that they shall be able to delegate these powers under the Act. My Lords, it is possible to think in terms of the powers being restricted to the county council level or to the county district council level, or of giving powers to both; but to give overlapping powers to two tiers in the local authority structure seems the worst of all worlds. The function of two authorities can only too easily become the function of neither; and restricting the powers to authorities at county council level would, I think, ensure that they are exercised by an authority large and powerful enough to have the technical staff."—[OFFICIAL REPORT, 28/1/69, col. 1150.]We want to place the responsibility, as we do in the Bill, on an authority which is likely to have the best resources for discharging that responsibility but at the same time will be able to delegate its powers, if advisable and desirable.
There is not much that I can add. Some district councils, although I think it would be a minority, could do just as well as the county councils, and they would have the additional advantage of detailed local knowledge but those district councils who could do the job will not be bypassed because under the clause as dratted we expect the county councils to delegate some of their functions under Part II to district councils that are willing and able to exercise them. Surely that is the way it should be. With respect, it seems to me absurd to suggest, as this Amendment does, that the county council, the major authority, should have no power under Part II of the Bill. I hope that noble Lords will see the force of this argument and withdraw the Amendment.
§ LORD MILVERTON
In view of the arguments that have been adduced against this Amendment, I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ Clause 11 agreed to.782
§ Clause 12 [Information relating to disused tips]:
§ 7.22 p.m.
§ LORD MILVERTON moved Amendment No. 6:
Page 9, line 42, at end insert—
("() A local authority may, by notice served as aforesaid, require the said owner or other person, to investigate within such reasonable time as the notice may specify, the existing conditions of the tip and furnish the local authority with such information about these conditions as the investigation reveals.")
§ The noble Lord said: Clause 12 empowers a local authority to call on a tip owner, or any other person who may be able to assist, for such documents in his possession or control as he may have about the tip. This seems to imply that the information which may be required from owners and others is restricted to information which they already have in their possession, presumably from earlier investigations. But, of course, it may be completely out of date. It was therefore suggested to the Minister that an Amendment should be made requiring the owner of a tip or other appropriate person to investigate the existing conditions of the tip and supply current information.
§ In reply, the Minister felt that it would be unreasonable to put the owner of a disused tip to the expense of doing this unless there was evidence that his tip was unstable and likely to endanger members of the public. It was assumed that usually he would keep his tip safe. However, the whole basis of Part II of the Bill is that the normal responsibility is placed firmly on the local authorities to see that disused tips do not become a public danger. The Government, having chosen local authorities as the instrument for so securing, ought in our view to give them the powers they reasonably feel to be necessary in order to carry out their duties. There cannot be many closed tips which are a potential danger and where there is reason to think that such a tip exists it is reasonable that local authorities should be able to require the owner to investigate existing conditions instead of having to do it themselves. I beg to move.
§ LORD ARWYN
I should like to see an opportunity given to each tip owner to register as soon as possible after the 783 Act is passed the lack of any information required by local or county authorities. Such documents or records as may be required under this clause may have been destroyed so that they will not be available within 14 days. Perhaps they never existed, especially in the case of old mines, started by the mineral owners and subsequently sold to a company after reserving the mineral rights. That happened several times in my own family. The ownership of the surface is retained by the original owners—that means the ownership of the tips. Alternatively, the documents in the possession of a tip owner may be inadequate. We must remember that the initiators of these tips were controlled by the economics of the enterprise, and in those days the lack of geological knowledge, and certainly of soil mechanics, prohibited them from choosing a site as carefully as could be done to-day. I should like to support the Amendment.
§ LORD STONHAM
The noble Lord, Lord Milverton, by his Amendment, proposes to empower a local authority to require the owner of a disused tip to investigate the conditions of the tip and furnish the local authority with the results of the investigation. This power is not needed to enable a local authority to discharge effectively the functions conferred on it by Part II of the Bill. The authority can already, under Clause 12(1), require the production of any documents bearing on the stability of a disused tip, including the reports of any tests carried out on behalf of an owner, and, under Clause 13(1), enter on to land to determine whether such a tip is unstable. I never make heavy weather of technical deficiencies but I think that I should say to the noble Lord that his Amendment is invalid because it is far too imprecise to have any real meaning.
Perhaps I may deal with some of the serious objections to the Amendment. First, it would tend to encourage local authorities to cut down the inspection of tips which might constitute a danger to members of the public and to rely on reports from owners. Safety would be bound to suffer. Few owners, other than the National Coal Board, have the expertise and resources to do a worthwhile inspection themselves. Secondly, it could impose a heavy and in some cases quite 784 intolerable financial burden on the owner of a tip by requiring him to carry out operations which may not be necessary to protect the public. Not all landowners, particularly owners of land of this kind, are rich. It would therefore be necessary further to complicate the Bill by including provision for appeals against unreasonable demands. This again would take time, and again safety would suffer.
Thirdly, the Amendment offends against the general approach of the Bill and of the Public Health Act 1936, in relation to statutory nuisances; namely, that an owner who keeps his property in good order should not be put to needless expense. Under the Bill a local authority can recover the cost of exploratory tests only when they result in remedial operations—that is, when a tip is unstable and by reason of its instability constitutes a danger to members of the public. Another objection is that tests take time and the reports furnished by an owner might well prove inconclusive. In that event the local authority would be obliged to institute its own tests under Clause 13. Once again time and money would be wasted and safety would suffer.
Some of these disadvantages could perhaps be reduced by further complicating the Bill which is already complex enough; but, given that only a very small proportion of tips is likely to give trouble, the complications and other disadvantages of the Amendment far outweigh the only advantage I can see; that is, to relieve a local authority of some financial liability. I hope that for these reasons, and because technically it is invalid, the noble Lord will feel ready to withdraw his Amendment.
§ Amendment, by leave, withdrawn.
§ 7.30 p.m.
§ LORD MILVERTON moved Amendment No. 7:
Page 10, line 10, at end insert—
("() An inspector shall, on request, furnish to a local authority such reports as they may reasonably require to enable them to determine whether a disused tip is, or is likely to constitute, a danger as aforesaid.")
§ The noble Lord said: With the permission of your Lordships, I should like to speak to Amendment No. 11 in 785 moving Amendment No. 7, as the two are connected. The reason for suggesting these Amendments is that they seek to write into the Bill a provision bringing Her Majesty's Inspectorate of Mines and Quarries into the picture under Part II. In earlier approaches emphasis was laid on the difficult position in which local authorities would be placed by being given discretionary powers to establish whether disused tips constituted a public danger (which powers they will undoubtedly be expected to use), yet not necessarily possessing the expert knowledge necessary to decide whether to use them. Her Majesty's Inspectorate are obviously the appropriately qualified body, with expert knowledge in this field. They are named in Part I of the Bill, but nowhere in Part II. The Minister has assured the Association of Municipal Corporations that their help will be available to local authorities, but the Association wish to see specific provision made to this effect in the Bill itself, and the extent of the help to be clearly defined.
§ The two Amendments suggested would enable a local authority to call on an inspector to report on the condition of a disused tip, on which report the authority would then decide whether to act and to call upon an inspector to assist where the authority decide that they themselves must do remedial works, making his expert knowledge available to them. In correspondence with the Ministry of Power, they have said that the inspectors will be able to advise only on the basis of a visual inspection of the tip and all available records, but will not be able to carry out engineering operations or to supervise remedial operations. This does not seem to be good enough. This is the expert, qualified body, and their help, if needed, must surely be available as of right to local authorities engaged in this work which demands specialist knowledge. Local authorities did not seek this responsibility, but they will readily accept it provided that they can have the necessary skilled assistance when they feel they need it. There may be only a limited number of inspectors, but equally there can be only a limited number of tips requiring inspection at any one time, and this specialist body of experts ought to be on call by local authorities for any 786 help that they can reasonably give. I beg to move.
§ LORD ILFORD
This Bill places on local authorities substantial new responsibilities, and, indeed, they are responsibilities which, if they were neglected or not properly performed, might result in serious disaster. It is essential that your Lordships should be satisfied that the necessary technical assistance should be available to local authorities in discharging these new duties. I do not think my noble friend is asking for too much when he asks that the local authorities should be able to call upon the Inspectorate to furnish them with reports upon any tips which appear to them to be in need of some action to ensure their safety.
The noble Lord, Lord Stonham, dealt with this in the Second Reading debate, and he said:ֵ the local authority associations have been told that the advice of the Inspectorate on tips wilt be available to them and to all local authorities."—[OFFICIAL REPORT, 28/1/69, col. 1151.]We were very glad to have that assurance, but I think it ought to go a little further, and something should be introduced into the Bill to ensure that if the local authorities require this highly technical advice they should be entitled to receive it from the Inspectorate of Mines and Quarries.
§ LORD BRECON
I should like to support my noble friends on this Amendment. I think that the Mines Department are going to have to set up (they probably have done so now) a substantial department to deal with this particular problem. If their services were made available to the local authorities, it would save a great deal of proliferation of staff. Having got this information, the responsibility of the local authorities would come in to carry out the remedial works.
§ LORD STONHAM
This is one of those occasions reminiscent of:The boy stood on the burning deck Whence all but he had fled.But, like the boy who stood on the burning deck, I am undaunted, and I hope I shall be able to satisfy your Lordships. Amendment No. 7, which refers to reports that may reasonably be required, with Amendment No. 11, which 787 was mentioned by the noble Lord, Lord Milverton, and which purports to assist in carrying out remedial operations and works of reinstatement, are virtually both arguments for skilled assistance being given to local authorities, and I am glad to have the opportunity of dealing with them together. Indeed, Amendment No. 7 is related also to Amendment No. 4, which was designed to give Part II powers direct to district councils.
In this Amendment noble Lords are proposing to place obligations on owners of tips and on Her Majesty's inspectors, as I understand it, in order that county districts would be in a position to exercise the functions conferred on local authorities by Part II of the Bill without the need to employ and pay specialist staff or consultants to deal with tip problems; and they would then be able to take shelter, as it were, behind the advice of Her Majesty's inspectors in the event of a tip failure. That is the position as we see it. It is true that recommendation No. 21 of the Aberfan Tribunal says:Tips (active or disused) should be regularly inspected by Her Majesty's Inspectorate of Mines and Quarries. Their Reports should be available to local authorities.I submit, however, that these Amendments are unacceptable for several reasons, which I regard as good reasons. First, Part II of the Bill (and we are now dealing with Part II) is concerned with disused tips; that is, tips which no longer form part of the mining and quarrying industry, and are, so to speak, now part of the landscape.
§ LORD BRECON
Perhaps I may ask the noble Lord a question. The Bill defines what is an active tip, and also what is a closed tip. The noble Lord used the expression "disused tip". Could we have a provision in the Bill to show what a disused tip is?
§ LORD STONHAM I would say off-hand that it is one that is no longer used.
§ LORD STONHAM
I will deal with that point in a moment. If the noble Lord will allow me, I want to deal now with this Amendment. The fact is that 788 Part II of the Bill is concerned with disused tips, and, as I have said, it is Part II with which we are now dealing, tips which no longer form part of the mining and quarrying industries and are part of the landscape. The problems that are likely to arise, therefore, are not mining or quarrying problems, but problems, as indeed the noble Lord, Lord Brecon, said at an earlier date, of soil mechanics, in which field, as I said earlier, there is plenty of expertise. Many local authorities, and also the National Coal Board, employ consultants, and do so with every confidence. But the important thing is (and this is why I keep mentioning that we are now on Part II of the Bill) that Her Majesty's Inspectors of mines and quarries are recruited, trained and organised to enforce the Mines and Quarries Act 1954, and their powers and those of the Minister of Power are limited to operating mines and quarries.
The inspectors are not equipped to carry out exploratory tests or to supervise the carrying out of remedial operations. The help they can give is therefore strictly limited. We must get this clearly in our minds. It is no use county councils thinking that they can get virtually all the technical help they need in this matter from Her Majesty's inspectors. We have on many occasions made it clear that the inspectors will give local authorities all the help they can; and these assurances stand. But this is a very different matter from writing provisions into the Bill which would virtually give local authorities carte blanche to call on the Inspectorate for help even where the local authorities are well able to do the job themselves or to employ consultants to act on their behalf.
The provisions which are proposed in this Amendment are undesirable from a number of standpoints, first, because they would tend to detract from the responsibility of the local authorities in their traditional role as the guardians of public safety to make up their own minds about the need for remedial operations. They would formally involve the Minister of Power and Her Majesty's inspectors in fields—that is, Part II fields—in which they have neither power nor responsibilities. Moreover, they would also deflect the inspectors from their duties under the Mines and Quarries Act 1954, 789 which include the inspection of active tips where, as the Aberfan Tribunal made it clear, the dangers almost invariably arise, and where their skills are most usefully employed.
The noble Lord, Lord Brecon, asked me about a disused tip. A "tip" is defined in Clause 2(1), and "active" and "closed" tips are defined in Clause 2(2). A disused tip is defined in subsection (2) of Clause II as a tip which is neither active nor closed, which I think is a very lucid definition.
The noble Lord, Lord Ilford, asked me about assurances. As noble Lords know, I would never do or say anything which I thought was unfair, or try to walk away from any obligation. I give your Lordships an unqualified assurance that Her Majesty's inspectors will make available any relevant information. I would point out that Clause 7 of the Bill, which deals with the preservation of plans et cetera of tips when mines and quarries are abandoned, has been inserted to ensure that such information is kept for future use. Inspectors will give help which is within their power and which comes within their remit. Their experiences and their responsibilities relate to the Mines and Quarries Act. In relation to Part II powers and responsibilities, local authorities, while being able to ask inspectors for such help as they are able to give, must have it in mind that other responsibilities and help which the inspectors cannot give will have to be met either by members of their own staff or by consultants and others whom they will have to call in for specific projects. It is for these reasons, and all else I have said, that we cannot accept this Amendment.
§ LORD MILVERTON
In view of the specific assurances which the noble Lord has given, I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12 agreed to.
§ Clause 13 agreed to.790
§ Clause 14 [Notice requiring owner of disused tip to carry out remedial operations]:
§ 7.45 p.m.
§ LORD ABERDARE moved Amendment No. 8:
Page 11, line 33, at end insert—
("Provided however that the Inspector of Mines and Quarries for the district has previously been consulted on the extent of the remedial operations so specified.")
§ The noble Lord said: This is the first time that I have spoken on Part II of the Bill, and I should like to declare again, as I did on Second Reading, my own personal interest in this Part as I am the owner of some of these unfortunate tips in South Wales. Some of the points appropriate to this Amendment have already been discussed under the previous Amendment, and indeed under Amendments to Clause 11; but this Amendment covers a slightly different point from that which has just been dealt with by the noble Lord, Lord Milverton. This clause, Clause 14, is the one that enables a local authority to serve notice on an owner of a disused tip, so clearly defined by the noble Lord, Lord Stonham, requiring him to carry out remedial operations. The Amendment suggests that, before doing so, the local authority should be obliged to consult the local inspector of mines and quarries on the extent of the required operations. This is not in any sense the carte blanche that the noble Lord, Lord Stonham, described the last Amendment as being. There is no question of the local authority being able to throw the whole responsibility on the local inspector. But it does, I suggest, give a further reassurance to the owner that no unnecessarily expensive operations are going to be required.
During the Second Reading debate, the noble Lord stated:
local authorities will normally prefer to proceed under Clause 14 where the owner is in a position to do the work."—[OFFICIAL REPORT, 28/1/69, col. 1148.]
Taking this as a starting point, and taking into account what appears in the Explanatory Memorandum (which makes clear that these are extremely expensive operations: the figures mentioned in the Memorandum are £30,000 to £100,000)
I am only concerned that the best available professional advice should be sought before notice is served on an owner. I agree, as the noble Lord, Lord Stonham, said, that normally a local authority will take professional advice from civil engineers or/and surveyors, if not those on its own staff then maybe by calling in outside consultants. But many of the factors which affect a disused tip will be best known to a mining expert. I know that it is a question of soil mechanics to some degree, but those who are skilled in soil mechanics may not necessarily also be skilled in the mechanics of mining and the mechanics of tipping.
§ I would suggest, as my noble friend Lord Brecon has continually suggested in the Committee, that the local inspector is a man whose knowledge and experience of active tips would be extremely appropriate also in the case of disused tips. I do not believe there would be any difficulty about his availability; he would normally be readily available in mining areas. And, after all, it would be, I hope, only on very rare occasions that his advice would be called for. I suggest that it is essential that he is brought in before the owner is required to undertake what may otherwise be extremely expensive remedial operations. I suggest that as these inspectors play such a key role in Part I of the Bill we should ensure that their experience and technical knowledge are available also under Part II. I beg to move.
§ LORD ARWYN
This Amendment is worth very serious consideration. No authority should serve such a notice without previous consultation with this Inspectorate. That is my very firm opinion. I have been a colliery manager and I know what goes with that job. When an inspector calls on a colliery manager he expects the colliery manager to understand his vocabulary, and the inspector should understand the colliery manager's vocabularly, so that there is a proper interchange of information. Without that one cannot get very far. The members of the staff of a local authority may have greater, or equivalent, local knowledge, I but in my view this Amendment would reduce the possibility of local prejudices or charges of victimisation by the action 792 of serving such a notice without consultation with the Inspectorate.
I am told that the Chief Inspector's Annual Report for 1967 states that specialist civil engineers are to be recruited, and training courses are already arranged. I take it that under ideal conditions of inspection at a disused pit these specialist civil engineers would be accompanied by the local mines inspectors. Therefore we can assume that if sufficient technical knowledge is available from the Inspectorate the local authorities should have this consultation before they serve a notice under this clause.
§ LORD STONHAM
My noble friend Lord Arwyn spoke about an inspector calling on the colliery manager. That has nothing to do with this Amendment, which seeks a totally different situation.
§ LORD ARWYN
May I interrupt my noble friend, in order to make myself clear? A disused pit is more dangerous than a pit that is in operation, and the inspector, who has passed his colliery certificate, knows the mixtures of shale, fireclay and the various other things which one gets underground, and their dangers. So the vocabulary which he will use is one which he has been trained to use, and he will be better understood by the National Coal Board, for instance, and certainly he should be understood by the local authorities.
§ LORD STONHAM
Yes, but we are dealing with a clause entitled:Notice requiring owner of disused tip to carry out remedial operations".We are talking about disused tips, and we are also talking about an Amendment to provide that before a notice served by the local authority becomes operative the inspector of mines and quarries for the district has previously been consulted on the extent of remedial operations as specified. I know that the noble Lord, Lord Aberdare, said that this is somewhat different from the Amendment we have been considering previously—and I agree that it is on a slightly different point. Nevertheless, I am afraid that the arguments are very much the same.
793 I notice that the noble Lord has not put down a similar Amendment to Clause 17, which suggests to me that he is, understandably, anxious to ensure that local authorities do not make unreasonable demands on owners. But the Bill already contains what we regard as being adequate safeguards. If the noble Lord will look at Clause 15, he will see that it says:A person on whom is served a notice or a copy of a notice under section 14 may, within the period of 21 days beginning with the date of service of the notice on the owner, apply to the court for an order varying or cancelling the notice on any one or more of the following grounds. …There are six grounds, of which the first two are:
The safeguards are there, and in another place my honourable friend gave an undertaking that the Inspectorate would be available to give local authorities what help they can. As I have already indicated to-night, this undertaking stands, but we regard it as being undesirable to mention the Inspectorate specifically in Part II of the Bill because, as I have said, the Inspectorate belongs to Part I and their responsibilities arise under the Mines and Quarries Act. We think that consultation with Her Majesty's Inspectors, or indeed any outside body, is unnecessary in all cases, because some local authorities already have adequate expertise among their own staffs, or can obtain it, and the job of the Mines Inspectorate is to supervise the operations of the mining and quarrying industry in the interests of safety. They are trained for that purpose, and if they were required by Statute to play a role under Part II of the Bill, inspectors would be needlessly involved in litigation, to the detriment of their other duties.
- "(a) that there is no reasonable ground for believing that the tip is unstable or that, by reason of instability, the tip constitutes or is likely to constitute a danger to members of the public;
- (b) that the remedial operations specified in the notice are more extensive than is necessary to secure the safety of members of the public.…
The Bill places on the shoulders of local authorities the responsibility for requiring remedial operations in the interests of public safety, and since the Minister of Power (whom on this Bill I am representing) has no powers under 794 Part II of the Bill, to mention the Mines Inspectorate in that Part would involve him in matters for which he has no responsibility. I would also point out that if consultation is to be limited to the case of Clause 14 notices, as the Amendment requires, local authorities might be encouraged to proceed under Clause 17, a step which I understand the noble Lord would be anxious to avoid. I cannot see how it can be held that the inspectors should be brought into the Statute in Part II of the Bill. Apart from the assurance which I have already given, more than once, I am afraid that I cannot do anything else; and I cannot accept this Amendment.
§ LORD ABERDARE
Perhaps I may correct one impression straight away. I prefer Clause 17 procedure to Clause 14 procedure because there are various safeguards under Clause 17, such as grounds. However, I take the noble Lord's point. I think that all of us who have supported this Amendment and the previous Amendments feel that it is just because the inspector is involved in Part I that we want him to be involved in Part II. It is because of the expert knowledge he has of mining operations. The noble Lord, Lord Arwyn, made the point that what constitutes the tip are the shale and other constituent parts, a matter which is particularly within his realm of knowledge. We felt it important, therefore, that the expert advice of the inspector should be available for disused tips as well. However, it is something to know that the noble Lord has given me an assurance that the advice of the Inspectorate will be readily available if called upon, and one can only hope that it will be called upon. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 14 agreed to.
§ Clause 15 [Appeals against Notices under section 14]:
§ 7.59 p.m.
LORD ABERDARE moved Amendment No. 9:
Page 13, line 11, after ("14") insert ("or section 17(2)").
§ The noble Lord said: This clause, as it stands, gives an owner a right of appeal against a notice issued under Clause 14. 795 I have no quarrel with the clause, but I think it should also apply to a notice under Clause 17(2) where the local authority decides to take action itself. It is perfectly true, as the noble Lord pointed out on Second Reading, that once a local authority has taken action under Clause 17(2), and the notice is presented to the owner, there is a provision in Clause 24 for him to appeal. But by then the work has been done and it is very much more difficult to argue that too much has been spent or that unnecessary work been done.
§ It seems to me that when a local authority decide to put work in hand on a disused tip and notify the owner that they intend to do so and recover the cost from him, at that stage the owner should have a right of appeal, just as he does under Clause 14 if the local authority require him to do the work. This seems to me only elementary justice. What I am proposing in no way interferes with the right of the local authority under Clause 17(3) to take immediate action if there is immediate danger. It would apply only in the normal, if I may call it, routine way in which the local authority act under Clause 17(2).
§ In the course of the Second Reading the noble Lord, Lord Stonham, gave two reasons against writing in this appeal procedure. First of all, he said that local authorities will normally prefer to proceed under Clause 14. Well, that may be so, but it is not really relevant to an appeal procedure under Clause 17(2). He further said that local authorities will proceed under Clause 17 in three cases: first of all, where urgent action is needed—and, as I have explained, this Amendment in no way trespasses on their powers in an emergency which are contained in subsection (3); secondly, where an owner is unwilling or unable to carry out the work himself—but I would point out that he is still expected to pay; and, thirdly, where a question of grant is involved—and here again the owner is not relieved of making some contribution, and it could be a substantial one.
§ I should like to make one further point. It may not often occur but it is possible that a local authority will choose to issue a notice under Clause 17(2) on, say, a quarrying company who 796 own a disused tip, and it is quite possible that the company will prefer to do the work itself and pay for it rather than have an outside contractor enter the site and then have to foot the Bill. As the Bill stands at present, such a company would have no appeal. If the Amendment were accepted, the company could appeal under Clause 15(1)(c) and perhaps establish its right to do the work itself, and I cannot see that there could be any objection to that. For all those reasons I believe it is important that the same right of appeal should apply against notices issued by a local authority, whether they fall under Clause 14 or Clause 17(2). I beg to move.
§ LORD STONHAM
As the noble Lord, Lord Aberdare, has made clear, his Amendment proposes that there should be provision for an appeal to the court where a local authority decide to carry out remedial operations themselves and give three weeks' notice of their intention under subsection (2) of Clause 17. It can be argued, and indeed the noble Lord did argue, that this was a perfectly reasonable procedure, because the procedure would be adopted only when there was immediate urgency and that the procedure under subsection (3) of Clause 17, where there is such urgency, is unaffected. First of all—and I always dislike saying this—technically the Amendment is defective. It would need to be accompanied by an Amendment to Clause 24 to ensure that matter which could already have been the subject of an appeal under Clause 15 was not raised again at the stage when a local authority who had carried out remedial operations sought to recover the costs. Without such an Amendment the same issue could be tried twice.
But, leaving that aside and dealing with the question of the principle of the noble Lord's proposal, we find it objectionable, first, because the proposal is inconsistent with the whole structure of the Bill, which is drafted on the basis that the power to deal with disused tips which might constitute a danger to members of the public belongs to the local authority, who have the choice of proceeding either under Clause 14 by requiring the owner to carry out any necessary remedial works or by doing the work themselves under Clause 17.
797 The provisions of the Bill are so drawn that the local authority have every incentive to proceed under Clause 14 if the owner of the tip is able to do the work. If they proceed under Clause 17, they have to pay for the remedial operations and attempt to recover the costs later, and at the recovery stage justify their action to the court. It follows that a local authority will not normally have recourse to Section 17 without good reason, and clearly where they are acting with good reason they should be able to get on with the job immediately in the interests of public safety, without having first to justify their action before a court. After all, it is the local authority's responsibility, not that of the court, to use the powers conferred by the Bill to ensure that the public is properly protected against a tip failure. The function of the court is to establish who should pay. If the authority are over-zealous, they will have to bear the cost themselves, since the rights of owners and potential contributors are adequately protected by the comprehensive grounds of appeal set out in Clause 24.
If noble Lords will look at the provisions of Clause 16, they will see how a local authority's responsibilities to their constituents are recognised and how inconsistent it would be to permit an appeal against a notice served under Clause 17. Clause 16 enables the local authority at any time, subject to the payment of compensation, to cancel a notice served on an owner under Clause 14, even when that notice has been the subject of an appeal under Clause 15. They can then get on with the work themselves under Clause 17 and make the tip safe. Clearly it would be objectionable, as well as a waste of time and money, that issues which had already been before the court under Clause 15 should again be the subject of litigation under Clause 17 before anything was done, and for a third time at the recovery stage. Of course, in such circumstances the condition of a tip would probably deteriorate further and the ultimate cost of the operations increase.
All in all, we are convinced that the Bill provides the cleanest and most sensible solution. It gives an owner and others the opportunity to challenge the need for and extent of remedial operations in the ordinary case and before 798 the work starts. It gives a local authority power to do the work first on their own responsibility, when they think that course justified, and defend their action later. It both prevents the same issues coming before the court more than once and provides adequate safeguards at all stages. Both in the practical sense and in the technical sense I think the Amendment is wrong and therefore unacceptable.
§ LORD ABERDARE
I am grateful to the noble Lord. I beg leave to withdraw the Amendment for the moment and to study what he said more carefully.
§ Amendment, by leave, withdrawn.
§ 8.10 p.m.
§ LORD ABERDARE moved Amendment No. 10:
Page 13, line 26, at end insert—
("() That the owner is prepared to undertake such operations as are necessary to remove the tip but has been refused planning permission to carry out those operations;")
§ The noble Lord said: This deals with another matter to which the noble Lord was kind enough to pay some attention at Second Reading. If I may briefly recapitulate my argument, it is that many of these disused tips contain small coal, and this makes it possible in certain circumstances to recover the cost of moving the entire tip by the sale of the coal. However, an owner has to obtain planning permission before he can do so and, not infrequently, that permission is refused on grounds of amenity. A judgment is made by the planning authority that to move the tip would cause unnecessary nuisance to people living in the neighbourhood. My argument is that in such a case an owner should not be held solely responsible for the cost of remedial operations in the future. After all, he has offered to make the tip safe once and for all by removing it, but he is told that the local community prefer to keep it. It seems to me only right that if it becomes unstable in the future the local community should share in the cost of remedial works.
§ In the course of the Second Reading debate the noble Lord tried to appease me by pointing out that there was an appeal to the Minister in any case of an application for planning permission That does not cover my point. The Minister, 799 like the local community, may feel that it would cause too much nuisance to remove the tip in particular circumstances. I am not contesting the justice of the planning decisions; all I am saying is that where the local amenity is preferable to complete removal of danger, the local community that enjoys that amenity should share in the risks of future danger. The choice is theirs between the removal of the danger once and for all, and the discomfort of the process of removal.
§ The owner would by no means be entirely rid of his responsibilities, but if he were called upon to carry out remedial works under Clause 14 and this Amendment were accepted, then he would have the right to appeal on the grounds that previously he had been refused planning permission; and if that appeal were successful then, presumably, the local authority would proceed under Clause 17 and in due course the owner's contribution would be decided by the Minister under Clause 25. Briefly, what I am trying to ensure is that where several parties are interested in a disused tip they should all share in the risks attaching to it. I beg to move.
§ LORD ARWYN
So far as I understand it, I think that this Amendment indicates a conflict of interest between departments. It is my contention that the removal of a tip should have complete precedence over any other interest. If planning permission is refused, then the local authority should take over full responsibility for the tip and its safety.
§ 8.14 p.m.
§ LORD STONHAM
I recall our exchanges on this matter on Second Reading, and I am sorry that the noble Lord feels that the appeal to the Minister is not much of a help to him. I feel that there are circumstances in which this could ensure that the matter he raised was fully ventilated and the Minister would be able to take account of both amenity and safety considerations. I saw particularly the noble Lord's point at the time and I said I would look into it, because it would be a pity if there were a case where an owner could forestall a slip, as it were, by removing a disused tip and extracting small coal, and so 800 reducing the cost, but were then refused permission, only to find later on that he was faced with an emergency, leaving no time to wash the usable coal. I know the cases he has in mind, where perhaps with hindsight another course might have been pursued. But, for all that and for all my sympathies and, I hope, understanding of this particular point, I really cannot recommend the Committee to accept the Amendment.
May I say a word about planning permission in this context? The Bill is silent on this subject because it is thought that remedial operations made necessary by Statutory notice under Clauses 14 or 17 will not constitute development requiring permission. Leaving aside the situation in which action has to be taken under the Bill, planning permission may not be required to remove a tip or to remove material from it. When deposited material remains "unabsorbed" into the terrain, it may well be regarded as chattels which can be removed as a follow up to mining operations. But when the tip has become naturalised, the extraction of coal will normally need permission. As Part II of the Bill is concerned with disused tips, it may be fair to generalise and say that any disturbance constituting engineering or mining operations will need permission, except when being done in pursuance of a notice under the Bill.
The noble Lord's Amendment refers to "such operations as are necessary to remove a tip". But what are those operations? The noble Lord has the washing of coal very much in mind, but if a planning application were necessary in any particular case it could have been made for a purpose which bore no obvious and direct relation to removal and could legitimately have been turned down on amenity, transport or other grounds. So it is possible to envisage a case in which the refusal of planning permission was due entirely to the owner's desire to carry out a profitable operation without safety coming into the matter at all. He might or might not have reason to think he was anticipating —or preventing—action under the Bill.
Under the noble Lord's Amendment there would be no time limit linking the refusal of permission and the action of the local council under the Bill. But the need to take action to make the tip 801 safe may have been brought about by some event since the refusal of permission—either by unforeseeable natural causes, or perhaps through some interference with the tip without permission. We do not think that that should be a reason why the owner should be relieved of obligations under the Bill. If we agreed with this Amendment, what would there be to stop the owner of every tip from applying for permission to remove his tip in the hope of getting a refusal which would enable him to appeal under Clause 15 if anything later went wrong?
Clearly, permission could not be given for wholesale removal of tips because all the material removed, except saleable coal, has to be put somewhere else. There are bound to be amenity considerations in proposals to remove tips, and they may be strong enough to justify refusal of permission except when safety is at issue. A local planning authority must feel free to turn down a planning application on planning grounds without their, or any other local authority, having to take over financial liability at some future time if remedial operations become necessary. Moreover, it is possible that the potential revenue from the sale of washed coal would abate only slightly the cost of making a tip safe. It is also possible that the cost of remedial operations required by the local authority would be much less even than the net cost of the complete removal of the tip contemplated in the Amendment. This seems altogether too easy a way of avoiding the responsibility which the Bill places on owners.
I would return to the point that an owner has a right of appeal to the Minister or the Secretary of State on a planning application—a point which the Amendment fails to cover. This will ensure that no planning application is dealt with on a parochial basis and that the Minister can take a wide view of the question, including any safety considerations. But to remove potential liability for future safety measures when a planning application is turned down almost smacks of hidden compensation for a planning refusal.
I am sure the noble Lord did not envisage any of these things arising out of his Amendment, but now that I have 802 gone into the ramifications—and I hope he will forgive me for giving a rather long explanation—I hope he will feel that it is right that we should refuse this Amendment.
§ LORD ABERDARE
I am grateful to the noble Lord. I agree that the Amendment is defective if it has the consequences which he has explained. I am still a little concerned about the owner's position in certain cases, but meanwhile I should like to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 15 agreed to.
§ Clauses 16 to 20 agreed to.
§ 8.22 p.m.
§ LORD MILVERTON moved Amendment No. 12:
§ After Clause 20 insert the following new clause:
§ Liability for damage and injury
§ ". Where damage or injury is caused by the instability of a disused tip the fact that the tip was accumulated under statutory power shall not exonerate the undertakers from any indictment, action or other proceedings to which they would otherwise have been liable."
§ The noble Lord said: I do not propose to take up the time of the Committee with any lengthy exposition of this Amendment because I propose, after having had correspondence with the noble Lord, Lord Stonham, to ask leave to withdraw it. I would just say that a similar clause was moved in another place when the Minister replied that if, as he believed, only the National Coal Board had statutory powers, the position is covered by the Coal Nationalisation Act 1946, which says that the function of the Board shall not entitle them to disregard any enactment or authorise any act or omission unlawful on any other ground.
The Amendment was withdrawn on that assurance, but subsequently the legal advisers of the Association of Municipal Corporations were in some doubt about whether that was a correct piece of advice, and they seemed to think that it was possible that that meaning merely limited the wide powers given to the Board by other parts of the Act, and that it had no effect on the statutory defence which the Board could claim. But, as the noble Lord, Lord Stonham, was kind enough
to point out to me in a very courteous letter which he sent me:
The question of statutory undertakers and the National Coal Board being able to plead statutory authority as a defence against common law claims for damages if negligence cannot be proved is, of course, a large question and not one confined to tips.
I am prepared to accept that and, as the noble Lord, Lord Stonham, pointed out, even if there is any foundation to our view of the position, an Amendment to this Bill is not the right place, as it has a much wider context. It would apply to many other things than tips. Therefore, subject to anything the noble Lord has to say I shall beg leave to withdraw this Amendment. I beg to move.
§ LORD STONHAM
I am most grateful to the noble Lord. Indeed, the Committee has even greater reason for being grateful to him because I have a formidable brief here consisting of at least 1,000 words and quoting every possible authority under the sun from Lord Dunedin onwards. I know that the Association of Municipal Corporations disagreed with us at one point—at least they were still in disagreement with us at the time of the Second Reading, but I hope that this is no longer the case. There is not going to be any difficulty about this at all, but if the A.M.C. is still doubtful then I shall be very pleased to write to them and quote all our authorities for thinking that we are absolutely on the right lines here. On this particular point they have nothing to fear at all.
§ Amendment, by leave, withdrawn.
§ Clauses 21 to 24 agreed to.
§ 8.26 p.m.
§ LORD ABERDARE moved Amendment No. 13:
§ After Clause 24, insert the following new clause
Grants towards Owners' Expenditure.
.—(l) Where remedial operations are being or have been carried out in relation to a disused tin by the owner of the tip, the appropriate Minister may, with the approval of the Treasury, make grants towards the expenditure incurred by the owner in or in connection with the carrying out of the remedial operations and any consequential works of reinstatement.
(2) Grants made by the appropriate Minister under this section shall be of such amounts and payable at such times and subject to such conditions as he may from time to time determine.
§ The noble Lord said: The noble Lord got off to a good start by accepting my first Amendment, and I hope that he will look with favour on my last, because it raises a very important point. Again it is one that was covered on Second Reading, and my argument can be quite briefly put. If a local authority proceeds under Clause 17 and carries out the work itself, it can apply for grant to the Minister, and in making that grant the Minister may limit the contribution of the owner. But if the local authority proceeds under Clause 14 the owner has to carry out the work and foot the entire bill, and he has no right to apply for grant.
§ I would remind the Committee that the noble Lord, Lord Stonham, throughout this Committee stage has told us that the whole object of the Bill is to encourage local authorities to act under Clause 14. It is to safeguard the owner's position, if that is so, that I am moving this Amendment to give him an equal right to apply for grant. It seems to me only right that he should have this right, in view of the fact that the landowner who owns the disused tip may well have had no responsibility whatever for making the tip, and certainly no say on the safety aspect at the time the tip was made. This new clause, if it were to be agreed to, would give him the right of applying to the Minister for grant. I have never suggested that this should be a grant as of right any more than the grant made to a local authority is of right; but it would give the owner a chance to apply to the Minister.
§ The noble Lord was good enough to spend some time on this matter in the course of the Second Reading debate. It is of course a difficult point, because so much depends on the particular circumstances. He spoke of the owner perhaps being what he described as a "lightweight" financially, but when we are talking in terms of sums of £30,000 to £100,000 even a heavyweight is likely to be daunted. I appreciate that in a great many cases—I hope in most cases—the situation will be resolved by agreement between the owner and the local authority and, if necessary, the Minister. The noble Lord made this point; but, of course, if we depended entirely on good will we should not have a need for this Bill at all. I should like to insert in it something to cover the possible awkward 805 case which might arise if the owner had notice served on him under Clause 14 and had no right to apply for a grant.
§ I was impressed by what the noble Lord said on Second Reading about fair play. I say frankly that I have no fears about there being fair play under Clause 17 procedure. In my own experience certainly that has been so. I had experience as the noble Lord knows, of a tip that slipped, and I certainly received the very fairest of play from the Welsh Office, from the local authority, and from everybody involved. It is just to ensure that that same fair play is exercised under Clause 14 procedure that I move this Amendment.
§ LORD STONHAM
As the noble Lord, Lord Aberdare, has said, this is a very important matter and a somewhat difficult one. Since Second Reading I have given it a considerable amount of thought. I hope that the Committee will hear with me while I follow out those thought processes. Under the Bill as at present drafted, no grant can be paid directly to an owner who complies with a notice under Clause 14 requiring him to carry out remedial operations; the Exchequer can become involved only where the local authority themselves take responsibility for the work under Clause 17. The Bill is based on the principle that owners have an obligation to keep tips in a stable condition and to avoid creating a danger to the public. And it takes account of the owner's potential liability at Common Law if damage or injury is caused by the failure of a tip. It is not the Government's intention to give owners the impression that they can look to Exchequer grants as of right, to relieve them of their moral and Common Law obligations.
A wealthy owner or large corporation which is capable of carrying out remedial operations is unlikely to need, let alone deserve, financial help. It seems unlikely that someone with no resources would want to or would be asked to undertake operations of any size, and in such a case the local authority would step in under Clause 17. The grant is not directed at people of substance. It is primarily intended to assist local authorities who find themselves or who expect to find themselves left with expenses which they cannot recover from the owner or from contributories. If the 806 owner is genuinely in no position to do the work and responsibility for the costs is unlikely to be attached to a contributory, the local authority will almost certainly find this out at an early stage and decide to carry out the work themselves under Clause 17. But there is nothing to stop them from making an arrangement with the owner to do any work of which he is capable as the authority's agent and reimburse him. Indeed, in some cases this might be an obvious and sensible way to proceed.
But from an administrative aspect, the payment of grants direct to owners would be highly undesirable. The Ministers responsible for the grants under Clause 25 are experienced in paying grants to local authorities. All the machinery exists to enable them to pay any grants which are found necessary, without additional, new arrangements. The audit of local authority accounts is by no means the least important element in ensuring that Exchequer moneys are properly used. And in determining what percentage of grant to pay, Ministers are fully informed of the resources of local authorities.
It should be remembered that there is always a possibility of a contribution order being sought under Clause 19(4) on the grounds that some part of the cost should fall on a person or body other than the present owner. The local authority are best placed to know whether any potential contributories exist (if they take action under Clause 17 they can apply to the court themselves for a contribution order) and the Ministers could hardly be expected to have the necessary local knowledge or to institute first hand investigations into local circumstances.
Finally, we think it fitting that there should normally be some element of local financial responsibility for remedying local problems—in so far as the cost cannot be recovered from the owner and contributories. It is therefore essential to pay any grant to the local authority, basing it on net residual expenditure.
The appropriate Minister—that is, the Minister of Housing or the Secretary of State for Scotland or Wales—has no locus under the Bill unless the local authority do the work and ask for a grant. But in fact any scheme of size is bound to be considered and discussed between the Minister, the owner and the local authority. That will be the opportunity 807 for the Minister to assess the merits of an Exchequer subvention, and if it seems to him that an owner—though not entirely without resources—should not be expected to bear the whole cost, it will be open to the Minister to persuade the local authority to take formal responsibility for the remedial work—perhaps with the owner as agent—and so enable a grant to be paid.
The Bill is necessarily drawn up in terms of formal actions. Experience in the Welsh Office shows that in practice there is ample opportunity for ad hoc consideration of the best way to proceed and how costs should be shared. That is why the grant provision is so flexible as to amount and why no conditions have been specified. Every case will be dealt with on its merits. The Committee may be sure that the planning Ministers will keep an eye on how Part II of the Bill is working and will not hesitate to arrange meetings with interested parties to ascertain all the facts of a particular case before deciding what should be done.
I thought it right to re-state clearly the Government's position and at some length and, in so doing, to indicate that I could not accept the noble Lord's new clause. But, despite all I have said, and because the Government wish to be completely fair and, I hope, to meet the essence of the point which has been made by the noble Lord, I am prepared on Report stage to move an Amendment designed to enable the owner of a tip required to do work under Clause 14 to oblige the local authority to carry out remedial operations themselves under Clause 17. This would automatically ensure that the grant provisions of the Bill in Clause 25 could be applied and, secondly, that the owner would be relieved of the responsibility for doing the work and of currently financing it and that the job of obtaining a contribution order under Clause 19 and recovering the money from contributories would be one for the local authority.
Having said that, and having made that offer, I must make it clear that this procedure would not necessarily mean that a grant would be made. That is a question which, in the event, could be decided only on all the facts of a particular case. It would, however, mean that 808 the proportion of the total costs of remedial operations which the owner would have to meet would not exceed the amount which the court had determined was properly his when it made a contribution order under Clause 19. In the other place Ministers said that the grant position needed to be left completely flexible in order that a reasonable approach could be made to the circumstances in each case. This is still the Government's attitude. Clearly, if a local authority have carried out remedial work, either voluntarily or in response to a notice by an owner (under the modification I have now suggested), and have exhausted every possibility of recovering the expenses, this would obviously be a matter to which full regard would be paid. But, as I indicated, it would be wrong to give your Lordships the impression that under these arrangements the Exchequer is to be regarded as anything more than a safety net. Nor should any owner think he can avoid financial liability simply by requiring the local authority to do the work; the authority's right to recover their expenses under Clause 23 remains unchanged.
I believe—and I hope the noble Lord will agree because we have tried very hard in this matter—that this will meet the essence of the point he made and will still retain the flexibility which we must have in the Bill. I hope that he will feel that he has achieved what he seeks and will be able to withdraw the present Amendment in favour of the one which I will introduce on Report.
§ LORD ABERDARE
I am most grateful to the noble Lord. I know that he has fought very hard on this matter, and I am delighted that he has fully met my point. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 25 agreed to.
§ 8.40 p.m.
§ LORD ILFORD moved Amendment No. 14:
§ After Clause 25 insert the following new clause:
§ New tips and extensions to tips
§ ". An application to the local planning authority for permission to develop land by the accumulation or deposit thereon of a new tip, or the extension of an existing tip, shall 809 be of no effect unless accompanied by a certificate from an inspector certifying that the proposed tip or extension can be established consistently with the requirements of this Act as to security and stability."
§ The noble Lord said: The purpose of this Amendment is to prevent a town planning consent from being given for the creation of a new tip or the extension of an existing tip upon land which subsequently proves to be unsuitable. Town planning consent does not, of course, in any way authorise the creation of a new tip, except from the point of view of amenity. It is concerned with amenity, and the inspector's certificate is concerned with safety. In spite of that, I think it is desirable that town planning consent should not be given in respect of sites which subsequently prove to be unsuitable. People misunderstand their rights. They get town planning consent and they think that authorises them to proceed.
The Amendment proposes that the application should be accompanied by a certificate from the inspector
certifying that the proposed tip or extension can be established consistently with the requirements of this Act as to security and stability.
I understand that the Government rely on the obligation in Clause 4 to give 30 days' notice of the commencement of working of a new tip. That, of course, prevents the work on the tip proceeding until the certificate has been given. But the town planning consent may already have been obtained before the certificate was asked for, and it is to prevent that situation arising that this new clause has been prepared. It is a very simple clause and, I should have thought, a very obvious one. I hope that the noble Lord will be able to tell us that this clause, or something of the same sort, will be inserted in the Bill. I beg to move.
§ LORD STONHAM
When this point was made on Second Reading, I indicated that I was not attracted by the idea and, indeed, I remain quite unconvinced of the need to amend planning law in this way. I know there are precedents for submitting certificates with planning applications, but both the Industrial Development Act 1966 and the Control of Office and Industrial Development Act 1965 are concerned with the location of particular development, in accordance 810 with Government policy in relation to resources and employment, and the provision of certificates gives the local planning authority the green light so far as the building of offices and factories is concerned.
This is surely quite a different question from the security of a tip. Part I of the Bill and the regulations to be made under it, will do all that is required to ensure that a tip is not started or extended in unsafe conditions. Regulations to be made under Clause 1(2) will ensure that proper site investigations are carried out to prove that the land is suitable for tipping, and under Clause 4 30 days' notice will have to be given of intention to start or resume tipping so that the Mines inspectors can check that any necessary tests have been made. I know we are going to make exceptions in both subsections (1) and (3) in certain circumstances to allow permission to be given in less than 30 days. But they will be only under conditions when no longer period is necessary, because the inspector so well knows that the tip is already safe and that one can proceed. I think it is important that we should not create an overlap of two entirely different procedures—safety and planning. We do not need two bites at this.
It is essential to remember that safety will often be affected by how a tip is built up. I agree that a site may be inherently risky for tipping, and in that case the provisions of Part I will ensure that such tipping does not take place or only takes place subject to appropriate safeguards. But often it may be a question of how rather than where a tip is constructed, so far as safety goes. And this is a matter for Her Majesty's inspectors. From a planning aspect, the important thing is where rather than how a tip is allowed. There is sometimes a temptation to use the Planning Acts as a universal "aunt". I suggest that where safety is concerned the Bill does all that is needed to prevent trouble, and that the insertion of a new piece of mechanics into planning procedure is not only unnecessary but also undesirable.
I am rather surprised that this has been put forward, unless the Association of Municipal Corporations are desirous of getting some sort of assurance. If so, I can give an assurance that if in a particular case a local planning authority 811 wishes to satisfy itself that a site is satisfactory for tipping on from the safety point of view, Her Majesty's inspectors will, on request, provide a statement. This assurance stands, but the procedure is administrative to help a planning authority on whom the decision will rest. We do not think that it will often be needed. In view of my explanation, and indeed of that assurance, which is of value, I hope that the noble Lord will withdraw his Amendment.
§ LORD ILFORD
The assurance which the noble Lord has given me is not substantially different from the effect of my clause. That being so, I am very grateful to him. It is a small point, but one of some substance, and I am very grateful to the noble Lord for the way in which it has been dealt with. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Remaining clauses and Schedules agreed to.
§ House resumed: Bill reported without amendment.