TYNE AND WEAR BILL [H.L.] (Hansard, 19 February 1979)

§ Lord ABERDARE
My Lords, I beg to move that this Bill be now read a second time.

Lord CAMPBELL of CROY
My Lords, this Bill should not leave us on its passage to a Committee without attention being drawn to Clause 5. For the reasons I am about to advance, that clause should, I submit, be dropped from the Bill. It would give one county council, Tyne and Wear, a power which the Government have recently decided, following the recommendations of an independent committee, should not be granted to local authorities pending further experience and consideration. This Private Bill is seeking to go further in Clause 5 than Governments or Parliament have been prepared to go in Public Bills in granting powers to local authorities. The Clause would set a precedent which some other local 1587 authorities might later try to follow in other Private Bills. In this way Clause 5 would, if allowed to remain in the Bill, prejudge an issue which still needs careful consideration before a decision is taken in relation to local government in general. I suggest it would be inappropriate and wrong to allow this clause to be enacted in a Private Bill affecting one local authority only.
The clause deals with conditions to be imposed when planning permission is granted in connection with mineral workings and associated waste material in order to achieve restoration when all the work is completed; the aim is to avoid dereliction and to protect the environment. So far in what I have described there is nothing new or controversial. The objectionable addition, however, is the power to force an applicant to enter into a bond with the local planning authority involving a guarantee and a sum of money. The intention is to guard against a firm going bankrupt or in some other way becoming financially unable to carry out restoration when the mining, quarrying or similar operations have been completed on the site in question. This eventuality, and the methods of providing beforehand for coping with it, have been the subject of much deliberation in recent years. The device of imposing a performance bond, as proposed in Clause 5, is controversial, since it is not generally regarded as the most effective or relevant remedy.
I must make it clear that I am in favour of conditions for restoration. Indeed, I myself stipulated them when I was Secretary of State for Scotland and had to take decisions under the town and country planning legislation. In those instances I considered the possibilities, fortunately rare, of default for financial reasons. I therefore accept that there is a problem in a limited form; it does exist and the question is what is the best solution. A committee under the chairmanship of Sir Roger Stevens was set up in 1972 to consider these matters in relation to mineral workings, the subject of this clause. That committee reported in 1976. It rejected bonds as a method for the time being, recommending that further experience and consideration were needed.
1588 The Department of the Environment in its Circular 58/78, issued only last August, contained the Government's views on the Stevens Committee's Report and it endorsed the Stevens Committee's view in this respect. It may be best if I quoted a relevant section from that circular: While the results of changes need to be seen, we would prefer to leave open the possibility of applying some form of guarantee or fund should the developing situation show it to be expedient and accordingly to make arrangements to keep the situation under continuing review. It is our hope that the industry will demonstrate to everyone's satisfaction that statutory arrangements are not necessary to guarantee restoration of the fullest standard but if that expectation is not fulfilled it may not be right to suspend action until the end of a ten year term". Noble Lords will note that in that passage the Department of the Environment, besides speaking of a guarantee, also spoke of a fund, because there is another method, which has been under discussion, of a fund which would be available for dealing with situations where restoration could not be carried out. But both those methods mentioned are in suspense for the moment. I referred to the Department of the Environment's latest views because Tyne and Wear is in England; had it been in Scotland or Wales I should of course have been turning to the latest pronouncements from the Scottish or Welsh Offices.
I have been speaking of restoration. In this context it does not necessarily denote exact reinstatement to the original condition. That may not be feasible. Nor may it be the best legacy for the local authority, local community or general public from the work that has been carried out. Normally the operation of restoration includes removing any industrial scars—that is of first importance. After that, landscaping and the top soil being returned can also be part of the scheme. But to try to return to the previous contours and features may not be necessary or indeed desirable.
To give an example, where quarrying has taken place often a pond or lake is formed and it may be in the best interests of those in the area that it should then be used for sailing or fishing rather than be completely filled in again, and that could be arrived at by agreement. Taking a newer development, because it has dated since only 1971, planning permission has been given for the oil platform building 1589 sites on the sea shore. Here, enormous holes are excavated in the beach and it is important of course that planning permission should have in appropriate cases provisions for restoration when the work is finished, and that may be in eight, 10 or 15 years' time. I know of at least one such case in the North of Scotland where, rather than try to fill in the enormous dock that has been created, it would be much better to turn it into a marina for sailing boats and other craft, provided always that the clearing up on the other parts of the shore is properly carried out.
The present practice, which is to be encouraged, is that agreement is reached in each case, depending on the individual circumstances, and in some cases flexibility is needed in the agreement to enable the most suitable course to be adopted, because only at the end of the working, perhaps many years ahead, can the final state of the site be assessed and what will best conform with the surroundings be determined. For the surrounding land may have been built over or otherwise developed or changed in the meantime.
The Confederation of British Industry are greatly concerned about this clause. Many of their members engaged in mineral operations would be adversely affected if the clause were passed and the precedent allowed. The CBI are petitioners against this proposal in the Bill and will make their case to the Committee. I did not therefore table an Instruction for the House to consider today; the case will, I am sure, be well and fully explained in the Committee. My purpose is to draw attention at this stage to a clause which is contrary to national policy in relation to local government as a whole and is therefore an important point to be registered in your Lordships' House.
I strongly support the CBI in their objection to a power which would enable a single local authority to make a bond compulsory when planning permission is granted. Of course, there is no difficulty about voluntary arrangements; bonds are now entered into and are in use by the agreement of both parties in private transactions in particular and where the circumstances are accepted and relevant to both parties. In the case of agricultural land that is particularly so. As 1590 contemplated by the Stevens Committee and the Government in their circular, the whole question on a nationwide basis is to come up in the next few years. The system of a restoration fund will be considered as at least one other option to a performance bond. Some think that it is preferable, because there are disadvantages in bonds. For example, it is difficult to foresee the eventual costs where workings may continue for 40 or more years, and money is tied up which could be invested in industry. So, if and when a decision is reached, Parliament should be asked to consider the chosen method by the Government of the day in public legislation applying to all local authorities. The matter should not be prejudged in a Private Bill, dealing simply with a single local authority.

§ The Earl of SHANNON
My Lords, I am particularly grateful to the noble Lord, Lord Campbell of Croy, for what he has just said; he has said practically everything that I was going to say. However, I should like to draw your Lordships' attention a little closer to one or two of the aspects of the report to which the noble Lord referred. It is the report issued by a Department of the Environment committee under the chairmanship of Sir Roger Stevens, and it is entitled Planning Control over Mineral Working. The report came from an expert committee which was set up to consider, among other matters, the very aspects of Clause 5 of the Bill to which the noble Lord, Lord Campbell, has just drawn attention. A proposed bonding system does not per se refer to restitution of the land, but merely the finance for it. The committee investigated 145 cases in 13 different counties where the required restitution of the land was not complied with within the given time, and in only nine of the cases was financial failure of the operator a factor. I wish to draw your Lordships' attention to a quotation from paragraph 9.28 of the report: restoration could have been achieved by the proper and timely use of planning control measures which had not been applied". Later, in the same paragraph it is stated: The evidence of survey … does not support the generalised assertions made in evidence that a major cause of dereliction is the avoidance by operators of their liabilities by resort to bankruptcy liquidation". 1591 Thus, we can see that financial failure is only a very minor cause for lack of reinstatement of workings. However, as the noble Lord, Lord Campbell, mentioned, the committee looked into the possibility of bonding and into other possibilities. On bonding, the committee reported in paragraph 9.31 of the report: The first system that we considered in this way involved imposing a statutory requirement for the restoration of each mineral working (or separate waste heap) to be guaranteed by a performance bond. From our discussions in London and Washington with representatives of bond-issuing agencies and their organisations it was clear to us that the normal commercial market would not underwrite bonds with the degree of freedom and flexibility required; many operators would be unable to secure bonds matched to their needs, in terms particularly of the period of coverage, and would consequently be unable to continue in business". The other possibility referred to was the system of a fund which, it was suggested, could be provided by a levy on all operators in such a way that an operator who defaulted on his restoration liability, or who failed to meet a levy, would be removed from the list of operators in good standing with the fund and would be unable to continue mineral working. The committee considered such a scheme to be far preferable to bonding. The only way in which they saw bonding working at all would be as a kind of analogue to the Export Credits Guarantee Department, and if this were done, it would in the early stages be necessary to have access to public funds.
In its final recommendation, contained in paragraph 9.29 of the report, the committee said quite categorically: We therefore recommend that the situation should be kept under review during a period of five to 10 years following the full implementation of our other recommendations". It is interesting to note that the other main recommendation in this field related to the proper monitoring of workings by the local authority, when considering the major cause of lack of restitution—and not the fear of someone going bankrupt.
I wonder why this particular local authority is seeking powers to implement a scheme, the feasibility of which has been roundly condemned after exhaustive inquiries by an expert committee of the Department of the Environment—a committee which was set up to examine this very subject. I also wish to draw your 1592 Lordships' attention to the fact that especially in view of present and impending inflation, any bond which might possibly be put up—and that is very doubtful, as we have heard in the committee's report—could well be of little value if and when it came to be claimed, particularly in view of the very long time-scale, which the noble Lord, Lord Campbell, mentioned, of between 25 and 50 years in some industries. If your Lordships give the Bill a Second Reading it will go to Committee. I hope that the Members of the Committee will satisfy themselves of some very special and exceptional reasons as to why, in the face of both an expert report to the contrary and directions from the Department of the Environment, this local authority should seek this particular power. I, for one, will listen with great attention to any such reasons on Report stage, unless the sponsors seek to withdraw the provision from the Bill.

Baroness WARD of NORTH TYNESIDE
My Lords, I hope that your Lordships will allow me to say a few words on a Bill which, although it relates to Tyne and Wear, has been discussed by a very distinguished Scotsman followed by a very distinguished Irishman, and I want to know who is speaking for the Tyne and Wear authority? It seems to me that there is much difference both in the legal system and in terrain between Scotland and my part of the world, and so I should like to know at what stage the authorities of Tyne and Wear are to be consulted as to what they really want. They may have quite different ideas. They may not be in full agreement with what has been said by the two noble Lords. I have here a copy of the Bill; it is enormous. It seems to me extraordinarily odd that we have to have a distinguished Scotsman and a distinguished Irishman saying what they think ought to be done in Tyne and Wear.
Therefore, I hope that whoever is to reply for the Government will say whether the authorities of Tyne and Wear are to be consulted in order to find out whether they agree with the points of view put forward by the two noble Lords. I find the situation very interesting, and almost amusing, because I cannot imagine that Tyne and Wear will fall in exactly with 1593 all the points of view put forward by these two distinguished noble friends of mine.

§ Lord ABERDARE
My Lords, may I make it clear straight away that I am not speaking for the Government, although I am speaking from this Dispatch Box. But, to answer the noble Baroness's question, this Bill will go to a Select Committee, and the promoters, the Tyne and Wear County Council, will have every opportunity to put their case to the Select Committee. May I also thank the noble Lord, Lord Campbell of Croy, and the noble Earl, Lord Shannon, for the points they have made on Clause 5. I shall certainly see that what they have said is drawn to the attention of the Select Committee.