HL Deb 13 October 1993 vol 549 cc230-50

5.22 p.m.

Viscount St. Davids

My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.

Moved, That the House do now resolve itself into Committee (on Recommitment).—(Viscount St. Davids.)

On Question, Motion agreed to.

House in Committee (on Recommitment) accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Hayter) in the Chair.]

Clause 1 agreed to.

Clause 2 [Works: supplementary]:

Lord Prys-Davies moved Amendment No. 1:

Page 2, line 45, at end insert:

("in compliance with the Special Protection Area provisions of the European Community Wild Birds Directive of 1979").

The noble Lord said: This amendment and the series of amendments grouped with it can be described properly as probing amendments. They arise in these circumstances. On 2nd August the European Court of Justice delivered its judgment in the Santona Marshes case. Obviously, that was not available to the Select Committee.

I have read an English language summary of the judgment which I received from the Royal Society for the Protection of Birds which has studied it carefully. Members of the Committee will know that the RSPB has lodged a complaint with the Commission complaining that the Cardiff Bay barrage is in breach of the directive on the conservation of wild birds. The RSPB, having studied that judgment carefully, believes that there is a parallel between the Santona Marshes case and the Cardiff Bay and Severn Estuary.

The complaint against the Kingdom of Spain was that it had failed to designate the marshes adjoining the estuary as an SPA under the 1979 directive on the conservation of wild birds; that it had failed to protect the site from new industrial development; that it had failed to protect the site from the discharge of untreated waste water; that it had failed to protect it from changes in tidal flow patterns; and that it had failed to prevent a reduction in the area of habitat and vegetation.

The court held that Spain was in breach of the 1979 wild birds directive on two grounds: first, it had failed to classify the marshlands as an SPA; and it had omitted to take steps to avoid pollution of the waters and deterioration of the habitat.

On Second Reading the noble Viscount, Lord St. Davids, told the House: I do not believe the EC directive", and clearly we were referring to the protection of birds directive, poses a problem … We shall endeavour to abide by all the directives which are placed upon us".—[Official Report, 16/11/92. col. 482.] I tabled this amendment in order to find out whether that is still the Government's view or whether, in the light of the judgment of the European Court of Justice in the Santona case, they believe that the directive has a direct relevance to Cardiff Bay. I wonder whether, in the light of the judgment, there are any worries at the Welsh Office in particular and the Department of the Environment about the failure to classify Cardiff Bay as an SPA. Or again, I wonder whether they are concerned, in the light of the judgment, that the construction of the barrage may be in breach of the wild birds directive and whether they consider that any changes are necessary in the barrage scheme.

If it is the Government's considered view—and I believe the RSPB has been unable, up to now, to obtain an authoritative statement from the Government—that the judgment does not apply to Cardiff Bay, would they be good enough to explain their reasons for that opinion? That would be appreciated.

I must mention to the Committee that I have only seen a summary of the judgment. It is not in the original but in an English language translation. Will the Minister tell the House whether a Welsh Office lawyer was in court when the judgment was delivered? Do the Welsh Office or the Department of the Environment have a full transcript of the judgment? If so, will a copy be placed in the Library before the Report stage? I beg to move.

5.30 p.m.

Viscount St. Davids

We believe that the group of amendments is inappropriate. The obligations which the EC Wild Birds Directive places on member states are there to be complied with. It is totally unnecessary to write into individual pieces of legislation a requirement to comply with its provisions. It would also be inappropriate to require consultation with the Environmental Directorate-General of the EC Commission. The Government and the development corporation take very seriously the provisions relating to developing and conserving flora and fauna at all stages of the works authorised by the Bill. We are content to leave it to our statutory advisers, the Countryside Council for Wales, and to the RSPB to advise on the most appropriate measures to be taken.

As for the requirement to publish a scheme of nature conservation, the development corporation has already indicated the measures it wishes to take by way of compensation for the birds. Following advice from the Countryside Council for Wales and the RSPB, the corporation commissioned a feasibility study which concluded that it would be possible to create an area of wetland of outstanding value for wintering and breeding water fowl and for other rare or threatened bird species. The intention is to create a wetland habitat of some 250 hectares at Redwick on the Gwent levels to the south of Llanwern steelworks and 36 hectares of saltwater lagoons at Goldcliff to the west of the site.

Both the countryside council and the RSPB remain actively involved in the development of the reserve. The Government have indicated that, provided planning permission can be obtained and the land acquired, funding of up to £5.7 million will be made available for the establishment of the reserve. That is a practical demonstration of our commitment.

If the noble Lord is suggesting in Amendments Nos. 11 to 14 that the development corporation ought to have regard to the desirability of developing and conserving the existing flora and fauna in the inland bay when operating the barrage, I must tell him that it simply cannot be done. The construction of the barrage will change the nature of the eco-system. At present it is a tidal, estuarine system. When the barrage is built it will be a freshwater lake. An inevitable consequence of the construction of the barrage will be the loss of the existing flora and fauna. New flora and fauna will develop in the inland bay. The Bill, quite rightly, requires the corporation to have regard to the desirability of developing and conserving them. If that is what the noble Lord wishes to see, it can be achieved without the amendments.

It would not be appropriate to enter into a discussion of particular judgments of the European Court here. Suffice it to say that so far as can be judged at this stage the circumstances of the Cardiff Bay are very different from those of the Santona marshes. The Government would not be proceeding with the barrage proposal if we thought that it contravened an EC directive.

I should tell the noble Lord, Lord Prys-Davies, that the Welsh Office did not have a lawyer present during the proceedings. The European Court has not prepared an English language version of the judgment and, if there is one, it will not be available for some time. However, I am arranging for an English version of the judgment to be prepared by the Foreign and Commonwealth Office. In due course it will be placed in the Library and should be there before Report stage. I ask the Committee to reject the amendments.

Lord Prys-Davies

That was a very interesting reply from the noble Viscount. He told the Committee that the Welsh Office was looking to the Royal Society for the Protection of Birds for advice and that that body was one of its main advisers. However, is it not the case that the RSPB wrote to the Secretary of State for Wales on 21st September claiming that the decision of the Court of Justice was of direct relevance to the scheme? Did not the society ask the Secretary of State to cancel the construction project? Moreover, did it not go further and say in the above-mentioned letter: We are advising that in our view Parliament is being invited to authorise a development project which will have the effect of breaching EC law"? Is the Minister saying that the Secretary of State is rejecting that advice?

Baroness White

While the Minister is considering the answer that he is proposing to give to the noble Lord, perhaps he could also give some reassurance about the proposed new reserve in Gwent which to some extent will take the place of what will be destroyed in the Cardiff Bay? There are apprehensions in South Wales that the proposed reserve may not be fully protected from possible road developments and suchlike in the adjacent area. Can the noble Viscount say how far the Welsh Office has fully satisfied itself that it will produce a fully protected new reserve in those circumstances?

Viscount St. Davids

I understand that the RSPB wrote to my right honourable friend and that it has always opposed the project in principle. However, the society has also advised us about the mitigation measures which we have proposed. I can only repeat that we believe that we are complying with the obligations of the directive and, of course, we shall do nothing to work against it. We also understand that the proposed site would not be affected by the road proposals.

Lord Prys-Davies

I am not for one moment accusing the noble Viscount of misleading the Committee in any way. However, his reference to the RSPB would lead one to believe that it was basically in support of the advice that it has given to the House. It is known that the society has lodged a complaint with the Commissioners. Nevertheless, I am concerned with the views of the department. It seems to me that the noble Viscount is saying, without qualification, that the decision of the European Court of Justice has no direct relevance to the present case. Am I correct in my understanding? Is that the position of the Welsh Office?

Viscount St. Davids

I can confirm that it is our understanding that the case has no bearing on our proposals for Cardiff Bay.

Lord Prys-Davies

Those words will be read with a great deal of interest. If the Welsh Office is right, of course they will be reassuring. I note that a Welsh Office lawyer was not present in court when the decision was delivered. However, I am grateful to the noble Viscount for agreeing to arrange for an English language translation of the judgment to be placed in the Library. I take it that it will be placed in the Library in good time and before we reach Report stage. Having said that, I beg leave to withdraw the amendment but I reserve the right to return to it on Report.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 5 not moved.]

Lord Prys-Davies moved Amendment No. 6:

Page 3, line 17, at end insert:

("() No such licence shall be granted until an exemption order for the rivers Taff and Ely shall have been obtained from the tertiary treatment requirement for discharges from inland sewage treatment works into sensitive waters as defined under the European Community Urban Waste Water Treatment Directive.

() No such exemption order may be granted except by a body of suitable expertise and wholly independent from the promoters of this Act").

The noble Lord said: With the above amendment and the six amendments grouped with it I am returning to a concern expressed on Second Reading on 16th November last. All the amendments arise out of the probable application of the EC Urban Waste Water Treatment Directive to the impounded lake. Last November, I requested particulars of the measures which would have to be taken if it became necessary to comply with the directive. I also asked about the cost of such measures. The noble Viscount then told me that he was not in a position to assist because it was not then known whether or not the additional treatment would be required, but he promised to write as soon as information became available. However, I have not heard further from the Minister.

I did not see a reference in the report of the Select Committee to the directive. However, since the publication of the report I understand that the National Rivers Authority has advised the Department of the Environment that the Cardiff Bay impoundment, if the barrage is built, should receive sensitive area status—that at least would be an advance on the position of 19th November last—as it complies with the criteria for designation. The designation would require the three main sewage treatment works which are located upstream in Mid-Glamorgan—not far from where I live and therefore I have an interest—to be upgraded from secondary treatment to tertiary treatment by 1998 to remove phosphate and nitrate nutrients from the water. Will the Minister say what the cost would be of upgrading the three works? I assume that the Welsh Office or the Cardiff Bay Development Corporation has worked out the approximate cost of applying the directive and that that is known to Ministers. A figure of the order of £50 million has been mentioned to me. Is that way out? Or is it about correct?

There is provision in the directive which allows the development corporation to apply for exemption from the need for tertiary treatment at the sewage works if it can demonstrate that such treatment would have no real effect on the level of eutrophication. It occurs to me therefore that the development corporation may intend to argue that an exemption should be granted on the ground that upgrading the sewage treatment works will not materially reduce the level of eutrophication owing to the existing pollution of the Taff and Ely rivers. One of our amendments makes clear that we would require the CBDC to obtain such an exemption unless, of course, it accepts that it can comply with the directive. If the CBDC proposes to apply for an exemption, to whom will it make that application? I have seen the directive: it is not clear to me to whom it would apply.

Would it apply to the EC directorate general, as suggested in one of the amendments? Or, consistent with the principle of subsidiarity—we have heard a good deal about that principle—would it apply to the Welsh Office? It is difficult to see how that could be a disinterested party. Would it apply to the Department of the Environment? Perhaps it should apply to an outside body of experts. I hope that the Minister can throw some light on the matter.

I wish to draw the Committee's attention to paragraph 24 of the Select Committee's report which states: The Committee was disappointed that the timetable for cleaning up the water in the Taff and Ely upstream is so long … We hope that the programme of measures to improve the water quality in these rivers will be accelerated". I wholeheartedly support that recommendation of the committee. Those two rivers are among the most polluted in Wales and their waters will eventually end up in the impounded lake. I understand that the National Rivers Authority has confirmed that of about 3,000 combined sewer overflows in Wales, 381 enter into the Taff and Ely and that many of them do not meet even the minimum standards which would be considered satisfactory while a significant number of combined sewer overflows into the Taff and Ely will have to be included in any priority programme of improvement.

Irrespective of what the Minister has to say in terms of replying to the principal amendment, I would be grateful if he would say how many of the 381 combined sewer overflows entering the Taff and the Ely are likely to be deemed unsatisfactory within the terms of the urban waste water treatment directive. Is it the intention that the overflows be upgraded before the impoundment can commence, or can there be an application for an exemption? I look forward very much to hearing the Minister's response to these questions. I beg to move.

5.45 p.m.

Viscount St. Davids

I hope that I can reassure the noble Lord, Lord Prys-Davies, that the amendments relating to the urban waste water treatment directive are unnecessary.

On the assumption that the barrage will be built the National Rivers Authority has included Cardiff Bay among its current working list of candidate sensitive areas. The authority has yet to finalise its proposals and ultimately it will be for the Government to decide, in the light of the NRA's advice, which areas to designate. No final decision has yet been made about whether the impounded lake will be a sensitive area. If it is designated, the extent to which discharges affecting the bay require additional treatment will need to be decided at that time. However, the development corporation does not currently envisage that nutrient stripping by means of tertiary treatment will be necessary. The key point is that any regulations made to implement the directive will have to be complied with. There is no need for any additional provision in the Bill to make that happen. Nothing in the Bill excludes the inland bay from the general operation of the directive, nor would we wish to do so through some kind of exemption order.

Similarly, there is no need for Amendment No. 7 in order to allow the NRA to require improved water quality in the inland bay. The existing provisions of Clause 8(3) (b) would enable the NRA to set objectives for improving water quality. Finally, the Government are committed to appropriate consultation with the city council on the use of the inland bay. Clause 16(4) requires the development corporation to consult the city council before making by-laws about the use of the inland bay, and Clause 20 specifies that the council should be represented on the Cardiff Bay Advisory Committee. The intention of Amendment No. 9 is therefore already fully met without the need for the amendment.

In the light of these measures I hope that the noble Lord will feel able to withdraw the amendment. I hope that my comments that we will not seek any form of exemption reassures the noble Lord. Should the National Rivers Authority seek to designate Cardiff Bay as a candidate for sensitive area status, measures will then be implemented to clean up the discharges that enter the bay.

Lord Morris of Castle Morris

It may have slipped the noble Viscount's mind that my noble friend asked him some specific questions about the timescale of this matter, whether one has been set, and if so whether it can be adhered to. As regards sensitive area status, we will need to know about the upgrading of the three upstream plants. The question of cost has already been addressed. Will the noble Viscount give some assurance as regards what timescale is envisaged for such an operation, should it become necessary? Will he assure us that it can be done in the time available?

Viscount St. Davids

I shall seek the answer to the question relating to timescale and write to the noble Lord before the next stage of the Bill.

Lord Prys-Davies

Is it the position that the National Rivers Authority has advised the Department of the Environment and the Welsh Office that the Cardiff Bay impoundment should receive sensitive area status? Is that the advice which the departments have received, and are they considering whether to accept that advice?

Viscount St. Davids

I said earlier that no final decision has yet been made as to whether the impounded lake will be a sensitive area. Therefore no other decisions have been made.

Lord Prys-Davies

Therefore, that is still an open question. On the assumption that it is, can the Minister answer my second question, namely, how much will it cost the CBDC and the rivers authority to carry out the measures necessary in order to comply with the directive? Am I right in suggesting a figure of £50 million?

Viscount St. Davids

As yet we can put no cost on the proposals because the matter does not arise. As and when it does the project will be costed.

Lord Prys-Davies

I find that a surprising answer. I should have thought that before we were asked to legislate on this matter the department would have done its homework and been able to say that it would cost £x. However, we are asked to pass this legislation without knowing how much it will cost.

Baroness White

Does the Minister not agree that this is a serious and difficult question for all of us? How can we put any faith in the proposals contained in the Bill if the Government tell us that they do not know how much it will cost? That is absurd. Those of us who consider the state of the Taff and Ely Rivers as one of the most difficult matters if the proposed barrage proceeds find it incomprehensible that serious calculations, if not necessarily definitive ones, have not been made of the cost of clearing up the two rivers.

Viscount St. Davids

I said that the development corporation does not currently envisage that nutrient stripping or tertiary treatment will be necessary. Therefore the matters do not arise.

Lord Prys-Davies

I find the Minister's replies unsatisfactory. The decision as to whether the impounded area will be treated as a sensitive area has not been taken. The department does not appear to know how much it will cost to implement the measures that may be necessary. However, I find it reassuring that, although the sums have not been worked out, the Minister is satisfied that the development corporation will be able to comply with the directive.

I would wish to consult with others on the reply which the Minister has given, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clauses 3 to 7 agreed to.

Clause 8 [Directions as to operation of barrage]:

[Amendments Nos. 7 to 10 not moved.]

Clause 8 agreed to.

Clause 9 [Operation: supplementary]:

[Amendments Nos. 11 to 14 not moved.]

Clause 9 agreed to.

Clauses 10 and 11 agreed to.

Clause 12 [Water quality]:

[Amendment No. 15 not moved.]

Clause 12 agreed to.

Clause 13 agreed to.

Clause 14 [Development and conservation of flora and fauna]:

[Amendments Nos. 16 and 17 not moved.]

Clause 14 agreed to.

Clauses 15 to 17 agreed to.

Clause 18 [Application of harbours clauses]:

Viscount St. Davids moved Amendment No. 18:

Page 11, line 9, leave out ("24") and insert ("23").

The noble Viscount said: This is purely a drafting amendment in relation to Clause 18 which has the effect of incorporating in the Bill certain provisions of the Harbours, Docks and Piers Clauses Act 1847. Subsection (2) lists those provisions which are not to be incorporated, including in particular Section 24 of the 1847 Act. However, Section 24 will be repealed by virtue of the Statute Law (Repeals) Bill which is currently in your Lordship's House. The government amendment simply ensures that Clause 18(2) of the Cardiff Bay Barrage Bill is consistent with the changes effected by the repeals Bill and I commend it to the Committee. I beg to move.

On Question, amendment agreed to.

Clause 18 agreed to.

Clause 19 agreed to.

Clause 20 [The Cardiff Bay Advisory Committee]:

Lord Prys-Davies moved Amendment No. 19:

Page 11, line 42, at end insert:

("(d) the amenity of residential areas affected by the provisions of Clause 21 below").

The noble Lord said: I wish to speak also to Amendment No. 21. However, I do not propose to move Amendment No. 20 in the light of information which I have received since I tabled the amendment.

Amendments Nos. 19 and 21 relate to the membership of the Cardiff Bay Advisory Committee. In paragraph 7 of the report of the Select Committee it was described as being at the centre of the consultation procedure. Therefore, it is a very important advisory committee. The purpose of the amendment is to establish in the Bill the principle that people living in properties which are likely to be directly affected by the barrage are to be given representation on the advisory committee.

I begin with the simple proposition that those whose daily lives and quality of life are most likely to be directly affected by the operation of the barrage should be directly represented in the membership of the advisory committee. The committee, and eventually through the committee the CBDC, should be fully aware of the experience, feelings and beliefs of residents about the way the barrage is affecting their quality of life. That is the fundamental principle on which the amendment is based. I happen to think that it is a sound principle, because who knows better than the people living in the areas how the barrage is affecting them?

In addition to giving the representatives of the residents' associations direct representation on the advisory committee, this would also acknowledge a degree of direct accountability and responsibility on the part of the CBDC to the residents of the area. There would be a direct relationship between the barrage operator and the ordinary people living in the environment affected by it. I hope that this Committee will see that that principle is soundly based. I beg to move.

Baroness White

I have to declare an interest. I no longer live in the area but I am the owner of a freehold flat in that part of Cardiff. I believe that it is extremely important in relation to this matter and the issue of groundwater levels that there should be appropriate representation from those parts of the city which could be affected in the future. For that reason I hope very much that the Government will accept the amendments.

6 p.m.

Lord Morris of Castle Morris

Amendment No. 21 advocates inserting "and adjoining residential areas". That may not seem an important point; it may seem that it should be taken far granted. I respectfully suggest that it is not taken for granted.

As my noble friend has pointed out, that special area of Cardiff is important. It has a long and dramatic history. I shall not entertain the Committee by going through the past 100 years of the history of the area surrounding what is to be the impounded lake. Suffice it to say that it is like no other area in Wales. It is like no other area in an even remotely comparable port. In the Victorian period the area known as Tiger Bay contained immensely respectable residential dwelling houses for the British Merchant Navy at the time of its greatest prosperity. It was a very respectable area. It went through a very bad period in the early 20th century when the policemen patrolled in pairs, if at all, and people frequently went in fear of their lives. The area was blasted half off the face of the earth during the Second World War. It was then resurrected as a residential area after World War II with all the advantages and disadvantages that went with the planning and architectural developments of that time, some of which still remain.

It is an extremely important area and should not be thought of simply as a residential block or two which can be treated like any other residential block. It is extremely important: that it has proper representation and that it is at the very least referred to at the end of subsection (7) (a) of Clause 20.

Viscount St. Davids

The three amendments moved by the noble Lord—.

Lord Prys-Davies

There are only two amendments.

Viscount St. Davids

The two amendments moved by the noble Lord would change the composition of the advisory committee and extend its remit.

Amendment No. 19 seeks to have the membership of the committee widened to those groups having an interest in the amenity of residential areas affected by the provisions of the groundwater damage protection section of the Bill.

The Bill already requires the three local authorities—South Glamorgan County Council, Cardiff City Council and the Vale of Glamorgan Borough Council—to be represented on the advisory committee. All those bodies obviously have a great interest in the residential area around the inland bay. The development corporation is also proposing that Cardiff Flood Action Committee, which has shown a strong interest in those matters, should be represented on the committee. I am not aware of any other relevant body which would be excluded if this amendment were not made.

Amendment No. 21 seeks to extend those issues that the committee can draw to the corporation's attention to include matters affecting the amenities of surrounding residential areas. Although I doubt whether the corporation would refuse to listen to any observations the committee make, I do not see a case for widening the remit of the committee in this way. In particular it would not be an appropriate forum for discussion about the groundwater protection scheme. There is ample provision for consultation with the local authorities about that in the provisions of Schedule 7. And there are extensive safeguards for the interests of individuals, including a complaints administrator to deal with any problems they may have in dealings with the corporation.

I have not heard any arguments which convince me that the existing provisions on the advisory committee are inadequate and I therefore urge the Committee to reject these amendments.

Baroness White

The Minister may be aware that the problem of adequate representation in the residential areas involves an area a good deal larger than Tiger Bay—which was graphically described by my noble friend. The effect on the River Taff is far more widespread than the possible difficulties involving the immediate Tiger Bay area. The River Taff clearly will be much affected if the barrage is constructed as presently envisaged. There is a strong case for ensuring that the interests of the residents in the area affected by changes in the regime of the river, as well as in the immediate vicinity of the barrage, should be taken into account.

On the basis of the representation described by the noble Viscount, one cannot be certain that that will be done. Two of the authorities to which he referred will not be interested in that specific area. One cannot be certain that Cardiff City Council will take adequate account of the matter.

Viscount St. Davids

We believe that we have the constituent members of the advisory committee correct and that that representation is adequate. We do not believe that it needs to be changed.

Lord Prys-Davies

I am grateful to my noble friend Lady White for her support of the amendment. We appreciate that under Clause 20 the three local authorities are to be represented on the Committee. That is welcomed. Of course, one of them is not directly involved in the area. However, in addition, and for the reasons that I gave when speaking to the amendments, one wishes to have residents' organisations of that area taking part in the work of the committee in addition to the local authority members who will have a general interest in the area. The residents will have a specific interest in the area.

I understand from the Bill that account is well taken of others who have an interest. I refer to those who have an interest in the operation of the barrage, in the management of the inland bay, and in the navigation in the inland bay. We simply say that there should also be a residents' interest group and that it should be referred to in the Bill.

The noble Viscount made reference to the Cardiff Flood Action Committee. I note the reference in paragraph 7 of the Select Committee's report. The Select Committee had seen a draft membership of the committee but a draft can be changed. The draft included a representative of the Cardiff Flood Action Committee. I do not argue a case for that particular committee but in the 1990 Bill that organisation had been given six representatives. It is now given one. We fear that, unless an amendment on these lines is written into the Bill, the residents' association will have no representation on the advisory committee. We believe that its voice ought to be heard.

I hope that the noble Viscount, Lord St. Davids, will have discussions with colleagues at the Welsh Office to see whether justice is being done to the residents' organisation. Will he take the issue back and consider it?

Lord Finsberg

My interest is this. For many years my late father lived in this part of Cardiff. I know the area because I took him back to his boyhood area.

I listened to the debate. However, it may not be clear that the Bill permits the Secretary of State to give such a direction if sufficient representations are made and there is a proper residents' association. So it is flexible and I should have thought that it covered the important points that have been made.

Viscount St. Davids

I thank my noble friend for his observations and comments. We feel that the residents and their requirements as representatives on the advisory committee are covered through the three named local authorities. We feel that we have got the membership of the committee right, but I shall, of course, bring the observations of the noble Lord, Lord Prys-Davies, to the attention of my right honourable friend to see whether he may care to make any addition.

Lord Holderness

In addition to what my noble friend has just said in support of the Minister's view, my colleagues and I who served earlier this year on the Select Committee were particularly impressed by the assiduity with which the local government representatives put forward the views which were strongly held both by them and their constituents, people living in the Cardiff area. I feel that probably on balance my noble friend has got it right and allowing that representation and also possible further representation mentioned by my noble friend is a satisfactory answer.

Viscount St. Davids

I thank my noble friend for his comments and reaffirm that we believe that we have got it right.

Lord Prys-Davies

I note that there are two views in the Committee on the issue and that the noble Viscount said that he would ask his ministerial colleagues at least to consider what has been said in favour of the amendments. I understand that there is no undertaking, but at least the noble Viscount's ministerial colleagues will give this further consideration. On that understanding, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 20 and 21 not moved.]

Clause 20 agreed to.

Clause 21 [Groundwater damage protection]:

Lord Prys-Davies moved Amendment No. 22:

Page 12, line 39, at end insert ("and may not abridge or reduce entitlement to such protection").

The noble Lord said: With this amendment I return to an issue which I raised in the Second Reading debate. I and many of us are still bothered by Clause 21 as the power to amend the protection which is enshrined in Schedule 7 can be exercised so as to reduce the protection available. Again, I respectfully remind the Committee of the assurances which have been given in the past by Ministers in another place. The assurances were that the power would not be exercised in a way that would reduce the protection.

By way of reference, we could turn to col. 636 of Hansard for the other place of 25th November 1991 and to col. 166 of Hansard for Standing Committee F of 7th July 1992. The noble Viscount gave an assurance in this House in line with the assurances which have been given in another place. However, the wording of the assurance which was given in another place does not appear in the Bill. In paragraph 18 of the Select Committee report we are told that the promoters had argued that it had been made clear at Second Reading in this House that the Secretary of State would exercise the power only, to the overall benefit of petitioners". That is a small but possibly significant departure from the earlier assurances. But the noble Viscount made no such statement during the Second Reading debate. However, in a letter to me of 2nd December 1992 he explained that the Government could not be certain that an amendment to the protection scheme: would not technically reduce the protection for someone else". This is a probing amendment and I should be grateful if the noble Viscount would indicate to the Committee in what circumstances the power in Clause 21 would be exercised so that it would technically reduce the protection for some residents.

What is the significance of the word "technically" which was used in the letter but was not used in the other place? It suggests that no one will be in a weakened position. Is that right? Am I right in drawing that conclusion? If it is right, why use the word "technically" at all? If, on the other hand, some residents will lose out when the protection is amended, then the promoters' use before the Select Committee of the words "overall benefits" begins to make sense. I trust that the noble Viscount can clarify his letter and the reference in paragraph 18 of the Select Committee report. Then one can decide whether one needs to take this further. I beg to move.

6.15 p.m.

Viscount St. Davids

The issues raised by this amendment have been discussed exhaustively during the course of the Bill. I explained in my opening remarks at Second Reading that none of us wished to see any reduction in the protection contained in the Bill. But the scheme of protection in Schedule 7 is necessarily complex and we cannot guarantee that minor difficulties may not emerge when we put it into practice. That was the reason for putting the power to make regulations into the Bill.

Again, as at Second Reading, I should like to remind the Committee of the remarks of my right honourable friend the then Secretary of State for Wales during the Second Reading of the Bill in another place on 25th November 1991. He made it clear that he had no intention of using the power under this clause to amend the groundwater protection scheme. He said, however, that he would be prepared to use it if it emerged that the interests of individuals were not being properly protected in practice by the scheme.

Any regulation amending the schedule would be subject to affirmative resolution, thus giving your Lordships the opportunity to debate it. In addition, it would be a hybrid instrument, thus giving affected people the opportunity to petition against it to your Lordships. These arrangements will provide more effective and appropriate protection than the proposed amendment.

Following Second Reading, I wrote to the noble Lord, Lord Prys-Davies, on 2nd December 1992 setting out the position in detail. A copy of my letter is in the Library. Subsequently, the Select Committee of this House chaired by my noble friend Lord Brabazon of Tara indicated that: we conclude that there are sufficient safeguards to ensure that the Secretary of State's powers will not be misused. We have not been convinced that amendment to the Bill is either necessary or desirable". I urge the noble Lord to withdraw the amendment.

Lord Prys-Davies

I am grateful to the noble Viscount for his response. If I may say so with respect, I do not find it all that helpful. We accept what was said in the other place. Those assurances were unqualified. But in his letter of 2nd December last year, he speaks of a possible technical reduction in the protection that would be available to others. I was inviting the noble Viscount to clarify what was meant by the phrase "technically reduce the protection for someone else". Would he like to clarify the meaning of that phrase?

Viscount St. Davids

In affording protection to one person it is technically possible to reduce the protection of another party. It is possible to create an aggrieved party by giving benefit to another party. But, of course, should that happen, the aggrieved party has the protection through a petition to this House.

Lord Prys-Davies

That is helpful. As I understand it now, it will not be exercised in a way that will adversely affect the interest of a certain resident. It will be exercised in the way that will give benefit to other residents. Somebody might be aggrieved about that. I am content with that explanation. I am also gratified that it will be necessary for the amendments to be confirmed by affirmative resolution. I was in the House last evening and heard the noble and learned Lord, Lord Simon of Glaisdale, explaining to noble Lords the significance of that guarantee. I take some comfort from the words of the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Clauses 22 to 26 agreed to.

Clause 27 [Development Corporation: transfer of functions]:

Lord Prys-Davies moved Amendment No. 23:

Page 14, line 16, at end insert:

("(2) The Secretary of State shall not consent to the transfer of such functions under the said section 165 unless he is satisfied that—

  1. (a) arrangements have been made which will ensure that adequate funds are available for the future maintenance after transfer of the works authorised by this Act and related works provided by the Urban Development Corporation in connection with the barrage, and
  2. (b) the obligations of any Direction which he may have made in respect of the Development Corporation relating to the maintenance of groundwater levels have been transferred to the nominated successor.").

The noble Lord said: The Cardiff Bay Development Corporation, like all the development corporations, will have a limited life. But the barrage will be a part of the landscape in perpetuity and will have to be maintained in perpetuity.

Cardiff City Council has a fundamental responsibility to the citizens and residents of Cardiff. I can assure the Committee that the council has given considerable thought to the problems that can arise in the future after the dissolution of the development corporation and in the event of the barrage undertaking being transferred to a private sector body. The question that concerns Cardiff City Council is this: on whom would the responsibilities and costs of maintaining the barrage fall in the event of a private sector successor body going into liquidation?

I believe that your Lordships' Select Committee was alive to this risk. That emerges clearly in paragraphs 33 and 34 of the report. In paragraph 34 the committee came to this conclusion: The Committee accepts the importance of long-term certainty in a major scheme such as the Cardiff Bay Barrage. While we have not been convinced that there would be value in trying to write this into the bill itself, we do believe that by taking on the proposal as a hybrid bill, the Government and its successors have accepted a responsibility for maintaining the scheme in perpetuity. Implicit in this must be an understanding that the costs of keeping up the scheme will not fall on the Council Tax payers of Cardiff". The discussion on this amendment, which is supported by Cardiff City Council, gives the noble Viscount an opportunity to confirm that the Government, for their part, accept the Select Committee's conclusion in paragraph 34, and to indicate to the Committee how they intend to discharge that responsibility.

There are two parts to the amendment. Subsection (2) (a) contains one necessary measure in the view of the Cardiff corporation and its lawyers. It would require the Secretary of State to ensure, before he consents to the transfer of the undertaking, that adequate funds are available to meet foreseeable maintenance needs. This need would arise where the successor body, the private sector body, ran into financial difficulties. That is a possibility. Clearly, the financial arrangements which are contemplated in subsection (2) (a) of the amendment would include an adequate insurance bond, an insurance guarantee or a government guarantee.

Subsection (2) (b) of the amendment relates to the de-watering direction which the Secretary of State, as I understand it, intends to issue under Section 138 of the Local Government, Planning and Land Act 1980 if the development corporation decides to proceed with the de-watering. The amendment would require the development corporation to ensure that the obligations of the direction under Section 138 would be effectively transferred to the successor body. This recommendation reflects the recommendation in paragraph 38 of the Select Committee's report when the committee said: In fact, we understand that the requirements of the direction would be one of the obligations of the CBDC when its life comes to an end". I can tell the Committee that the terms of the draft direction, which was referred to in subsection (2) (b), has been much discussed between the lawyers for the city council and the Welsh Office team. I am very glad to be able to say that a draft which was produced on 23rd August by the Welsh Office meets the concerns of the Cardiff City Council. I would be grateful if the Minister could confirm that, if the Secretary of State receives from the CBDC a de-watering proposal which is satisfactory to the Welsh Office, he will issue a direction in the terms of the draft direction of 23rd August. I emphasise the importance of the draft direction of 23rd August. That is acceptable to the Cardiff City Council provided that it has an undertaking or an understanding that it will be issued in those terms.

I should mention another point which is not directly referred to in paragraph (b) but which arises out of the same situation. I believe it is common ground between the city council lawyers and the Welsh Office that the city council would not be a party to the direction. If it is not party to the direction, it could not take any proceedings against the successor body if it were in breach of the direction.

I suggest—or the lawyers acting for Cardiff City Council suggest—that there may be two ways of overcoming that difficulty, though I accept that they are not referred to in the amendment. The first would be if the Welsh Office were to use its good offices either to ensure that the CBDC enters into a direct agreement with the city council in the terms of that direction; or if there were a tripartite agreement in the terms of the direction. I accept that that is not spelt out in the amendment. If it is something that the Minister wants to take back, then he may take it back—I should be very happy for him to consult with colleagues. But irrespective of that, subsection (2) (a) and subsection (2) (b) of the amendment are, in the view of the lawyers for the Cardiff City Council, essential if the council is to protect the interests of its council tax payers in the future. I beg to move.

6.30 p.m.

Viscount St. Davids

The transfer of the development corporation's undertakings in whole or in part is governed by Sections 165 and 165A of the Local Government, Planning and Land Act. Clause 27 provides that all functions exercisable by the development corporation under this Bill and all related rights and liabilities, form part of its undertaking for the purposes of Section 165. Clearly, therefore, all the "works" referred to in paragraph (a) of the amendment, together with all rights and liabilities relating to them, are part of the corporation's undertaking.

Section 165 of the 1980 Act as amended by the Leasehold Reform, Housing and Urban Development Act 1993, provides that an urban development corporation may transfer its undertakings to a local authority or other body or to a statutory undertaker. However, Section 165 also provides that undertakings can be transferred only by agreement. Such an agreement requires the approval of the Secretary of State and the concurrence of the Treasury. There is, therefore, no question of a successor body being forced to take on liabilities if it considered the associated financial provision to be inadequate.

If any liabilities cannot be transferred by means of an agreement, the development corporation cannot be dissolved unless the outstanding liability is vested in the Secretary of State.

The liabilities arising from the operation, management and repair of the barrage and associated works are no different in principle from any of the other liabilities of the development corporation. The identity of a successor body will be considered as part of the wider exercise to consider the transfer of its overall liabilities on dissolution. The provision of funding will also be considered at that time.

My right honourable friend the previous Secretary of State gave Cardiff City Council an assurance that the barrage will he funded from the central government element of his block funds and not from funds for grants to local government. This relates to both capital and revenue funding.

As for the possible transfer of the liabilities to the private sector, I do not think that there is anything to be gained by speculating about the precise arrangements which might apply in a hypothetical transfer to a private company.

The second part of the amendment deals with a direction to the development corporation by my right honourable friend the Secretary of State. The Committee will recall from the Second Reading debate that I referred to the prospect of de-watering wells as a means of controlling groundwater levels after the barrage is built. The Welsh Office and the development corporation have been considering how it might be possible to ensure that pumping would continue at the appropriate rates if a decision is taken to proceed. They have proposed a direction under Section 138 of the Local Government, Planning and Land Act 1980 which would require the development corporation to continue pumping at rates which would maintain the desired groundwater levels if such pumping operated to prevent damage.

I can tell the Committee that obligations arising from such a direction would form part of the development corporation's undertaking to be transferred on exactly the same basis as the transfer of any other liability. Whoever took on responsibility for de-watering would do so only by agreement. The Government were able to satisfy the Select Committee of this Chamber, chaired by my noble friend Lord Brabazon of Tara, on this point.

I can assure the noble Lord that the Secretary of State for Wales has undertaken that, if a decision is made to proceed with the de-watering in the light of detailed design, he will make a direction on the lines I have outlined. Clearly Secretaries of State expect their directions to be complied with; I am sure that a Secretary of State would take appropriate action if a third party, such as the city council, reported that it was being breached.

In the circumstances I hope that the noble Lord, Lord Prys-Davies, will seek leave to withdraw the amendment.

Lord Prys-Davies

Perhaps I may begin with the last part of the amendment. I followed carefully what the Minister said and I believe that his comments are reassuring so far as paragraph (b) is concerned. But—because this is subject to the Cardiff City Council having an opportunity to study his speech—it appears to me that we are probably bridging the gap and that a direction will be made in the terms that I mentioned in my remarks on the amendment.

However, I am not so sure that I followed the Minister's response to the first part of the amendment. The worry arises in the event of the undertaking being transferred to a body in the private sector. The Minister will say that I am now looking way ahead into the future and they are not prepared to address the situation which I have mentioned. But in legislation we are addressing the future and it is conceivable that a successor body would be a body in the private sector.

I accept that the Secretary of State would satisfy himself that such a body was at the time of transfer in a position to meet the financial liabilities. But subsection (2) (a) goes further than that and requires the Secretary of State to be satisfied that the body has produced financial undertakings—insurance policy, insurance bond or a bond supported by the Government—and in the event of its going into liquidation the local authority can look to the bond. It seems to me that that point has not been adequately covered. It is an issue to which we may well have to return after we have had an opportunity of studying carefully what the Minister said. But if he wishes to come back on the first part of the amendment and can assure me that the Secretary of State has considered the position and is prepared to require a transferee or a proposed transferee to produce the guarantees which are contemplated by the amendment, that would be satisfactory.

Viscount St. Davids

In answer to the noble Lord, Lord Prys-Davies, I cannot conceive of circumstances in which the Secretary of State would allow the transfer of the operation and liabilities of the development corporation to pass into hands in the public sector or the private sector which were inadequately funded. I cannot conceive that the Secretary of State would allow the development corporation to pass on all its rights and liabilities to a body which is not capable of funding them into the distant future. I cannot see that the case would arise.

Lord Prys-Davies

I listened carefully to what the Minister said. It seems to me that we do not have a clear understanding that the Secretary of State has to be satisfied not merely that the transferee is in a financial position to operate the undertaking at the time of transfer. Of course he will satisfy himself as to that. But it is material to know the position if some time in the future, 10, 20, 50 years hence or longer, the transferee were to go into liquidation.

I shall not pursue the matter further this evening. It is a matter which will have to be studied carefully by the city council and its lawyers and therefore H reserve the right to return to this issue at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Remaining clauses agreed to.

Schedules 1 to 6 agreed to.

Schedule 7 [Groundwater damage protection]:

Lord Prys-Davies moved Amendment No. 24:

Page 31, line 19, after ("to") insert:

("a garden or any appurtenance thereof")

The noble Lord said: I shall not detain the Committee long with Amendment No. 24. Its purpose is to ensure that the compensation code covers gardens and their appurtenances—greenhouses and garden sheds—whether or not the garden adjoins a building, from rising dampness.

If a barrage is built then the garden and lawn should be as usable as they are at present. Compensation should be payable if they are damaged in any way. Amendment No. 24 seeks to obtain clarification from the Minister as to what compensation may be available to the owner of a garden, whether or not it is attached to a building, in the event of a garden or a structure within it being damaged. I beg to move.

Viscount St. Davids

The proposed amendment raises an issue that has been the subject of extensive discussion in Select Committee both in this House and in another place. The amendment as drafted would include gardens—and presumably such items as garden sheds, swings, garden slides and the like—as part of the "building". Thus it would be necessary for those items to be surveyed both before and after impoundment. The impracticality of surveying gardens and the difficulty comparing pre- and post-impoundment conditions has resulted in the rejection of this approach on the previous occasions it has been considered. However, the Government have accepted the need to protect gardens and a protection scheme is included in Schedule 7, paragraph 18. This was included in the Bill at the request of the Select Committee in another place.

The issue was raised again in front of the Select Committee of this House. My noble friend Lord Brabazon of Tara commented on the provisions in his report from the Select Committee on 16th March this year. It may be helpful if I quote the committee's view. The Committee endorses the desire of the Commons Committee to give proper protection to gardens and other open land. We welcome the Promoter's undertaking to amend the Code of Practice to specify that garden walls will be eligible for remedial works if groundwater damage is clearly established". The committee then went on to say: We are content that gardens and other open land are now adequately protected by the Bill and the various related Agreements. The Committee was not convinced that it would be either practical or desirable to carry out the surveys of gardens". I believe that we have heard nothing new in the debate on this issue. As the matter was considered in detail by the Select Committee both of this House and in another place, I urge the Committee to endorse the view expressed by the chairmen of those committees and to reject the amendment.

Lord Prys-Davies

I agree that I said nothing that was new or original. The object of the amendment was to obtain clarification from the noble Viscount. He has given me that clarification and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount St. Davids moved Amendment No. 25:

Page 34, leave out lines 13 to 16 and insert:

("(a) the whole, or substantially the whole, of it is occupied as one or more private dwellings, or

(b) it is unoccupied but either—

  1. (i) when it was last occupied the whole, or substantially the whole, of it was so occupied, or
  2. (ii) it is intended that the whole, or substantially the whole, of it should be so occupied.").

The noble Viscount said: During the hearings of the Select Committee of this House which examined the Bill earlier this year, a number of representations were received about the application of certain provisions of Schedule 7 to buildings in mixed residential and commercial use. The position of such buildings was clarified at Select Committee stage. However, at that time, the need to make this essentially consequential amendment was overlooked. The effect of the amendment is that full survey costs will not be charged in relation to properties the whole, or substantially the whole, of which are occupied as private dwellings, a survey of which has shown that there is no groundwater damage. An example would be a dwelling from where the owner or occupier also carries on a business. I commend the amendment to your Lordships. I beg to move.

On Question, amendment agreed to.

Schedule 7, as amended, agreed to.

House resumed: Bill reported with amendments.

House adjourned at a quarter before seven o'clock.