Cardiff Bay Barrage Bill

HL Deb 21 October 1993 vol 549 cc640-54

3.31 p.m.

Report received.

Clause 1 [Construction of barrage etc. and other works]:

Lord Moran moved Amendment No. 1:

Page 2, line 27, at end insert:

("() The Development Corporation may riot commence the works specified in subsection (1) above, until and unless the Special Protection Area for the Lower Severn Estuary shall have been submitted, approved arid registered by the European Commission under the provisions of the European Wild Birds Directive of 1979.").

The noble Lord said: My Lords, this is a probing amendment. It is important that we should clarify further the question relating to birds and the Cardiff Bay barrage. The points were put clearly and cogently by the noble Lord, Lord Prys-Davies, at Committee stage. I do not wish to repeat them. However, I wish to clarify the position in the light of what the Minister then said.

The noble Lord, Lord Prys-Davies, raised the question of the relationship to Cardiff Bay of the judgment of the European Court on 2nd August in case C.355/90 EC Commission v. Kingdom of Spain. It is known as the Santona Marshes case. As the noble Lord pointed out, the RSPB believes that the case is relevant to Cardiff Bay. At Committee stage at col. 233 of the Official Report of 13th October, the Minister statedSo far as can be judged at this stage, the circumstances of the Cardiff Bay are very different from those of the Santona marshes".

However, he explained that although there was not yet available an English language version of the Court's judgment, he was arranging for an English version to be prepared by the Foreign and Commonwealth Office. In due course it would be placed in the Library and would be available before Report stage.

I have had some difficulty. I have inquired from the Library. It was unable to find the judgment. However, I have just had handed to me in the Chamber the English version prepared, I believe, by the Department of the Environment. I have not had time to study it. I am told that there are two versions, one prepared by the Department of the Environment and one by the Foreign and Commonwealth Office, and that they are slightly different. I am also told that the covering letter from the Foreign and Commonwealth Office should have been deposited in the Library. The Library was unable to find it. However, I have had a note faxed to me by the RSPB. The document is entitled, "Points arising from case C.355/90: EC Commission v. Kingdom of Spain (the "Santona Marshes" case)". I have had time to consider the document only briefly. However, I note that in the covering note the Foreign and Commonwealth Office states: The implications for the decision to exclude Cardiff Bay from the possible SPA in the Severn Estuary are not entirely clear. It may be that the margin of discretion in deciding the extent of SPAs has been reduced. Certainly if an area should be classified as an SPA the obligation to take protective measures for the ecology of such areas is said to arise even before designation".

That is an important issue of which your Lordships should take careful note.

Clearly none of us can pronounce with authority on whether the case against Spain is on all fours with Cardiff Bay. We have not had time to consider that factor. Moreover, as a layman I would not feel competent to pronounce on what is essentially a legal question. However, as I believe noble Lords know, a complaint has been made against the Government by the RSPB and other bodies. As I understand it, that is now being considered by the Commission. The Commission has not yet pronounced on it. When the Commission has made up its mind, it will then consider whether or not a reference to the European Court is appropriate. In those circumstances, I shall be interested to know the Government's view of the legal situation and whether they believe it right to proceed with the Bill until that complaint is upheld or rejected. That is an important and fundamental point.

Perhaps I may refer to remarks made by the Minister on the issue at Committee stage. At col. 232 of the Official Report of 13th October he stated: 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".

In fact the Countryside Council for Wales, the RSPB and the JNCC advise that the Cardiff Bay should be included in a Severn Estuary special protection area. Government were not content with that advice and removed Cardiff Bay from the candidate site. To date they have failed to designate the remainder of the Lower Severn Estuary. The Government may be leaving the matter to the CCW and to the RSPB to advise upon, but they do not appear to be taking the advice that they are given.

At col. 233, the Minister also stated: of course, we shall do nothing to work against it", meaning the Community wild birds directive. It is being argued by the RSPB and other conservationists that that is what the Government are doing. At col. 232, of the Official Report, the Minister stated: The Government and 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".

That statement was welcome. The Government may have taken the provisions seriously, but they appear to have rejected them because the works at Cardiff Bay will not conserve flora and fauna. Effectively they will destroy what exists at present, as the Minister conceded at Committee stage.

Lastly, the Minister said, at col. 232 of Hansard, that: the development corporation has already indicated the measures it wishes to take by way of compensation for the birds".

It is true that the RSPB and other conservation bodies have helped to advise on a good design for the proposed new reserve on the Gwent levels, but they have never accepted that those measures are compensation. They have made that clear to everyone concerned. In fact the greater part of the proposed new reserve will provide for birds of a quite different type from those which will be removed from Cardiff Bay—primarily marsh birds, though I know that a small area in the new reserve is now being proposed as an inter-tidal area. That may provide for a small number of the birds. Those are the points that I wish to raise and I shall be interested to hear what the Minister has to say about them. I beg to move.

3.45 p.m.

Lord Prys-Davies

My Lords, I speak in support of the amendment which has been moved with clarity by the noble Lord, Lord Moran. The amendment raises an issue of great substance, as it involves our treaty obligations with the European Community. I should like to thank the noble Viscount, Lord St. Davids, for placing in the Library on Monday a copy of an English Language translation of the Santona Marshes judgment. The copy which I have seen is the copy prepared by the Foreign and Commonwealth Office.

The noble Lord, Lord Moran, has drawn attention to that judgment; it represents a major milestone. He also drew attention to the fact that the RSPB, supported by other organisations, has lodged a complaint with the Commission that the barrage would be in breach of the directive to which he referred. I am sure that the Government know very well what is the precise position in Brussels at this stage and they probably know that there is a meeting on Thursday of next week of all the representatives of the chefs de cabinet to consider whether the Commission should invoke infringement proceedings.

I wonder whether, in view of that development—if it be correct—the Government propose to press the Bill to a Third Reading on the same day as the meeting takes place. If they do, then the need for this amendment or an undertaking along its lines is extremely important.

When we discussed the amendment and a series of other relevant amendments in Committee, the noble Viscount informed the Committee that the judgment in the Santona case had no implications for Cardiff Bay. At col. 234 of Hansard for 13th October 1993 he said: I can confirm that it is our understanding that the case has no bearing on our proposals for Cardiff Bay". I am sure that that was based on the advice of Welsh Office lawyers. However, a letter written on 12th October to the RSPB by a Welsh Office official, on behalf of the Secretary of State, was more cautious in drawing conclusions. The official said to the RSPB: while the RSPB's complaint about the decision to exclude Cardiff Bay from further consideration of the proposal to designate the Lower Severn Estuary as a Special Protection Area remains unresolved in the EC Commission, it would not be appropriate to comment. However, as far as can be judged at this stage the circumstances of Cardiff Bay are different from those of the Santona Marshes". That is a more cautious approach.

A minute to which the noble Lord, Lord Moran, referred, which I believe was prepared by the Foreign and Commonwealth Office and which is attached to a copy of the judgment in the Library, is also very cautious. I should like to quote a few sentences from the minute because I consider that they are relevant: The implications for the decision to exclude Cardiff Bay from the possible SPA in the Severn Estuary are not entirely clear. It may be that the margin of discretion in deciding the extent of SPAs has been reduced. Certainly if an area should be classified as an SPA the obligation to take protective measures for the ecology of such areas is said to arise even before designation". That is part of the complaint of the RSPB. The minute goes on: Cardiff Bay and the Santona Marshes can be distinguished in the context of their respective environments and ornithological importance … It is to be noted however that whilst under domestic law there is an extent to which decisions can be distinguished on their facts, in the EC system the principle of precedent is less defined and the European Court tends to adopt a more 'purposive' approach—considering the intention of the legislation to some extent more than its detail". I should also be interested to know whether the Welsh Office has taken advice from its statutory adviser, the Countryside Council for Wales and also from the joint conservation commission on the significance of the Santona judgment. In fairness to the Select Committee, clearly that judgment was not before the committee when it reported many months ago.

The amendment seeks, quite simply, that the construction of the barrage should not commence until and unless the Commission or the European Court of Justice, if the complaint proceeds to trial, has decided that the construction of the barrage is not in breach of the directive. So I very much hope that the Government will accept the amendment or at least give an undertaking that they will abide with its essence.

I should have thought that such an undertaking should not present difficulties to the Government, as it would be fully consistent with the unambiguous, unqualified and considered words uttered by the noble Viscount, Lord St. Davids, in Committee, at cols. 232 to 233, according to the words quoted by the noble Lord, Lord Moran. The noble Viscount said: we shall do nothing to work against it". The "it" is the wild birds directive. We should have thought that an assurance along the lines suggested in the amendment is also the best way to proceed, having regard to our treaty obligations.

If the noble Viscount is not instructed by the Welsh Office to give the House this assurance or an assurance along those lines, will he please ensure that the attention of his right honourable friend the Secretary of State for Foreign and Commonwealth Affairs will be drawn to this discussion before the Bill reaches its Third Reading stage?

The Earl of Halsbury

My Lords, I feel tempted to rise on this occasion because I sat on the Select Committee on this Bill in its original form and the Felixstowe Dock and Railway Bill as well as the Humberside estuary Bill. Although I am a member of the Royal Society for the Protection of Birds, pay my subscription and very much enjoy its publications and its wild nature reserves, I did not think that the quality of the evidence it gave in any of the commissions was at all satisfactory when it came to predicting the future. The effect of a great deal of international legislation is quite irrelevant to rare species. It deals with common birds such as the dunlin and the redshank, which one finds wading about any marsh in this country in completely satisfactory supply.

With regard to the attempt to build an estuary alongside, the Cardiff Bay Barrage Bill will give rise to a freshwater lake which could be a beautiful asset to the city of Cardiff—a freshwater lake with freshwater birds breeding on it; indeed, an increased population of freshwater birds. Why was that not an object worthy of consideration, as opposed to the diminution in the quantity of saltwater birds? There are plenty of marshes and estuaries in this country for birds to migrate to if they want to over-winter here.

I asked the witness from the Royal Society for the Protection of Birds on a particular occasion (I believe it was that of the Felixstowe dock and railway Bill) about the meanders in the stream at low tide, dynamic affairs which wriggle like a snake and switch from side to side of the channel, and why the crustaceans that the birds lived on bred on one side of the meander and not on the other. Nobody knew. Nobody had attempted to pick up a ton of mud containing freshwater crustaceans and move them over to the other side of the meander. The money is simply not available for that kind of truly scientific experiment. Therefore I hope that the Minister who answers will stick to his guns and vote against this amendment.

Viscount St. Davids

My Lords, I thank the noble Earl for his comments. I should like to preface my reply to this and other amendments by bringing it to your Lordships' attention that the third week in November will see the celebration of the sixth birthday of this Bill. It has been before two Select Committees, both in this House and in another place. I cannot think of another Bill within living memory which has so been through the scrutiny processes of Parliament.

As to Amendment No. 1, I have made it clear before that the Government believe it is in full compliance with the European Wild Birds Directive. The directive contains no provision for the Commission to approve the designation of special protection areas.

The Government have already taken the decision that Cardiff Bay should not form part of a. lower Severn estuary special protection area. The decision has been the subject of a complaint by the RSPB and others to the European Commission. That is a matter before the Commission, but the Government's position is clear. The reasons for the decision were set out fully in the decision letter dated 1st November 1991, a copy of which is in the Printed Paper Office.

As for the remainder of the lower Severn estuary, its future is not affected by the construction of the barrage. I can see no reason therefore why commencement of construction of the barrage should be made conditional on a decision on that matter.

The RSPB negotiated extensively with the department on its petition before the Select Committee of this House chaired by my noble friend Lord Brabazon of Tara. In the end it received sufficient reassurance about the mitigation measures that it considered itself satisfied on all points in its petition. At no stage did the RSPB seek to persuade the Select Committee that commencement of construction should be made conditional on the designation of the lower Severn estuary as an SPA.

Of course the RSPB and others would prefer that the barrage were not built at all. But that is the whole purpose of this Bill, and I am sure that the noble Lords, Lord Moran and Lord Prys-Davies, would agree with that.

I turn now to the comments made by the noble Lord, Lord Moran, on the Santona Marshes judgment. I did indeed place a copy—an English translation prepared by the Foreign and Commonwealth Office—in the Library on Monday afternoon. It seems that the noble Lord, Lord Prys-Davies, has been able to find it. The Library may have had some difficulty; I understand that the cover says simply Commission v. Kingdom of Spain.

Some noble Lords have made reference to the judgment in the Santona Marshes case. I made it clear during our debate last week, that the circumstances of Cardiff Bay are very different from those of the Santona Marshes. In broad terms there are differences in the character of the two areas. The extent of the impact is different and we are providing very extensive compensation measures. As I told the Committee last week, it would not be appropriate to enter into a discussion of particular judgments of the European Court here. Beyond the broad comments that I have just given, I do not propose to go into any further detail, particularly while the RSPB's complaint to the Commission remains unresolved.

Perhaps I could take this opportunity to set the record straight about the position of the RSPB. The noble Lord, Lord Prys-Davies, said that I 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."—[Official Report, 13/10/93; col. 233.] The noble Lord then went on to ask whether the Secretary of State had rejected the RSPB's advice on the relevance of the European Court of Justice judgment in the Santona Marshes case. I fear that the noble Lord may have misunderstood what I said in addressing the amendments in his name. I said that the Government were content to leave it to the Countryside Council for Wales, their statutory advisers and to the RSPB to advise on the most appropriate measures for developing and conserving flora and fauna. That is precisely what Clause 2(6) of the Bill requires the development corporation to do. It is also true that the advice of the RSPB has been sought on the development of the proposed bird reserve at Redwick and Goldcliff. They have, after all, considerable experience in the field. They, and the Countryside Council, have provided valuable advice. They remain fully involved in the bird reserve proposal.

However, it is a very different matter to suggest—as I suspect the noble Lord may have implied—that the RSPB are one of the Government's main advisers on the possible implications of the Santona Marshes judgment. That is certainly not the case. The RSPB have merely offered their own view of the judgment and its implications.

Yes, the chefs de cabinet are meeting. But they meet regularly and we do not see any special significance in next week's meeting. I invite the noble Lord to withdraw the amendment.

Lord Prys-Davies

My Lords, on a point of order, in fairness to the noble Viscount and myself I wish to clarify one point arising out of his reply.

In col. 232 it will be seen that the noble Viscount said: We are content to leave it to our statutory advisers"— Comma— the Countryside Council for Wales"— Comma— and to the RSPB to advise on the most appropriate measures to be taken". When the noble Viscount delivered this sentence on 13th October, I was not to know that a comma had been inserted after the word "Wales". So that explains the discrepancy.

Viscount St. Davids

My Lords, I thank the noble Lord for his explanation.

Lord Moran

My Lords, perhaps I may first say a word about the remarks made by my noble friend Lord Halsbury. I fear that I cannot share his complacency about the prospects for wading birds on our estuaries. I am glad that my noble friend has been reading the literature produced by the RSPB. As a result, I am sure that he will know that the RSPB and other conservation bodies are greatly concerned about the threats to so many estuaries which are of great importance in Europe as a passage for wintering wading birds coming down from the Arctic, Canada, Iceland, Greenland, Russia and all over, and moving South in the winter. These birds come in considerable numbers at the moment to Cardiff Bay. Some are relatively numerous, but their numbers have been declining and they are under considerable threat. There should be no question about that.

I listened very carefully to what the Minister said in his very helpful reply. I believe that it is a little rash of the Government to be determined to go ahead regardless of what may happen in Brussels. None of us knows what line the Commission may take on the complaint that has been submitted to it; whether it will go to the European Court or, in that event, what the court will say. Clearly that may be very relevant to the points that we have been discussing. I should have thought that it would be much more prudent to do as my amendment suggests and wait until we know the answer to those questions before going ahead with the works.

However, I understand that the Government are determined to go ahead. In that event I do not honestly feel that we can stop them. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4 p.m.

Clause 2 [Works: supplementary]:

Lord Prys-Davies moved Amendment No. 2:

Page 2, line 29, after ("operational") insert ("and (in the event of a proposal for a dewatering scheme satisfactory to the Welsh Office being received from the Development Corporation) a dewatering scheme which is agreed by the Welsh Office is in place").

The noble Lord said: My Lords, your Lordships will remember that it was not known at Second Reading on 16th November last year whether dewatering wells to control groundwater levels around the impounded lake were feasible. The noble Viscount, Lord St. Davids, said that dewatering was an innovative procedure and that it was right that a pumping well pilot study should take place to establish the feasibility of a dewatering scheme after the construction of the barrage had been completed. The noble Viscount rightly pointed out in the Second Reading debate that the need for remedial works to properties would be significantly reduced or removed altogether if the results of the pilot study were successful. Indeed, he could have called in aid the old adage that prevention is better than cure.

The pilot studies referred to in the Second Reading debate were undertaken and a week ago the results were conveyed to the Secretary of State. I am glad to see that the results are most encouraging. They demonstrate that a dewatering system will work. Mr. Stoner, the independent specialist groundwater adviser to the Secretary of State, reported to the Secretary of State in the following terms: The dewatering pilot study successfully demonstrated that such a scheme"—

in other words, the dewatering scheme— will provide a satisfactory means of maintaining pre-barrage water levels in the lower areas of Cardiff under post-barrage conditions … More work is required on the design of the proposed system and any areas that may arise that will need special extra measures should be identified and such measures as may be necessary, defined".

I believe that that is the best news yet to emerge from the Welsh Office in connection with the Cardiff Bay barrage.

The Bill itself does not contain any powers to operate dewatering wells. But, as the Select Committee pointed out—obviously before it knew the results of the pilot studies—in paragraph 36 of its report: It is clear that if wells are used, they will become integral to the whole project".

I go along very much with that conclusion.

At Second Reading the noble Viscount said: If a decision to proceed [with the installation of dewatering wells] is taken, the Government will not be seeking powers under the Bill to do so. That can be done under existing legislation".—[Official Report, 16/11/92; col. 459.]

Can the Minister tell the House how that will be achieved? If the Welsh Office is satisfied that a design system has been devised and is shown to be workable, this amendment would require the CBDC to implement the agreed dewatering scheme. That is the essence of the amendment.

I am sure that we all wish to achieve that desired end. But if it can be achieved by other legislative means, possibly as suggested by the noble Viscount at Second Reading, I for my part will be content. But I should be grateful if the noble Viscount would take advantage of this amendment to explain to the House the legislative means that the Government have in mind. Were the Government to accept this amendment or give us assurances or an appropriate undertaking today or at Third Reading, I am sure that it would be welcomed by the people of Cardiff as evidence that the Bill will not be as harmful to their interests as some people believe it to be. I beg to move.

Viscount St. Davids

My Lords, your Lordships will remember that there was a very extensive consideration indeed, during the earlier stages of this Bill, of the effects of groundwater that would result from the barrage. This culminated in a year of further work by Hydrotechnica, followed by a public consultation exercise, and by advice to the Secretary of State from his independent adviser, Mr. Roy Stoner. As a result my right honourable friend the then Secretary of State for Wales was able to conclude that the barrage could safely proceed, whether or not dewatering proved to be practicable, given the comprehensive safeguards in Schedule 7 of the Bill. That conclusion was endorsed in another place and by this House at earlier stages on this Bill.

The noble Lord will be aware that pumping tests have now indicated that dewatering would work in practice. My right honourable friend the Secretary of State has therefore given his approval to the development corporation to produce a detailed design for the scheme for further consideration.

Although dewatering may well prove to be a satisfactory way of controlling groundwater levels after impoundment, it remains the position that we see no reason why the Bill should be made dependent on it. II: may be reassuring to know that the scheme proposed in the dewatering study would involve putting wells into operation before impoundment began, with provision for further wells to be installed if they proved necessary.

The amendment does not in fact provide any further protection to local residents. Under its provisions, if the corporation had not satisfied the Welsh Office with its dewatering scheme, there would be nothing to prevent: the impoundment proceeding without it.

In the light of that explanation and the reassurances I have given, I hope that the noble Lord will not press his amendment.

Lord Prys-Davies

My Lords, I am a little disappointed by the response. The fault may be mine in that perhaps I did not make the position clear. I welcomed very much the report of Mr. Stoner. I sought assurances from the Minister that the Welsh Office will have access to certain procedures which will ensure that the CBDC introduces the dewatering system if the Welsh Office is satisfied that it is workable. I was relying on the assurances given to the House at Second Reading (col. 459 of Hansard). So I am a little disappointed that the Minister is unable to tell us how the Secretary of State will ensure that the CBDC will implement such a scheme.

We shall have to consider what has been said. I am disappointed—it may be that the Minister has not quite understood the amendment—but at this stage I do not propose to press the amendment to a Division. Therefore I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 8 [Directions as to operation of barrage]:

Lord Prys-Davies moved Amendment No. 3:

Page 4, line 29, at end insert ("including standards laid down by the European Community Urban Waste Water Treatment Directive").

The noble Lord said: My Lords, this amendment was discussed when the House was in Committee on 13th October. I am sorry that I did not table the amendment until yesterday, but I was involved in consultations with others until yesterday afternoon. The amendment was discussed in Committee but there remain three points of uncertainty. We believe that those uncertainties should be removed before Parliament enacts the Bill.

First, we want to know whether the Government received clear advice from the National Rivers Authority that the impounded lake should be classified as a sensitive area for the purposes of the EC Urban Waste Water Treatment Directive. I construed the words of the noble Viscount in Committee to mean that it was indeed advice which had been received from the NRA. Others who have read his words, possibly more carefully, are not sure that the Government acknowledged that they received that advice. There should be no doubt as to what was the advice given by the NRA and the amendment gives an opportunity to the Government to confirm the position.

That brings me to my second point. The noble Viscount told the Committee that it would be for the Government to decide, in the light of the NRA advice, whether or not they would designate the impounded lake as a sensitive area. The NRA is the expert body offering advice; but it is for the Government to decide. That is the point that was made.

We all understand that constitutional doctrine. But we would find it difficult to believe that on this issue the Government would reject the advice of an authoritative body such as the NRA. Is the noble Viscount saying that the Government would seriously challenge the advice of the NRA? We therefore want to establish at this stage and before the Bill is enacted how great is the risk that the Government may reject the NRA's recommendation.

I believe that the Minister went some way to assure the Committee that the advice would not be challenged. I base that comment on what the Minister said at col. 236 when he stated, 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".

That is unqualified. But can we divorce that statement from another made by the noble Viscount to the effect that nothing had been decided? I should be grateful therefore if the noble Viscount would clarify the Government's position.

My third point relates to the capital cost of upgrading the three sewage treatment works which are located around 15 miles upstream from the barrage and also of upgrading the 381 combined sewer overflows into the Taff and the Ely. Perhaps he can give us the consequential revenue cost if the impounded lake is classified as a sensitive area. In Committee I specifically pressed for the costs so that the Committee could appreciate the possible effects of passing the Bill. The noble Viscount did not provide the Committee with any costs. The Committee was told, 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".—[Official Report, 13/12/93; col. 237.]

My noble friend Baroness White and I were not the only people to be astonished by that admission. It has been known for six or seven years that the EC Urban Waste Water Treatment Directive might apply to the impounded lake. Indeed, at Second Reading I asked the Minister whether or not he could tell the House what would be the cost of complying with the directive. It is strongly felt by many people that a responsible course of action on the part of the Government would be to work out how much it would cost in approximate terms if it became necessary to achieve the standards of the EC directive.

Yesterday the noble Viscount was kind enough to send me a copy of a letter which he had sent to my noble friend Lord Morris of Castle Morris. I am bound to say that I did not find it particularly helpful. The letter pointed out that the cost of diverting sewage outflows away from the bay itself would be £14.8 million—that was included in the financial memorandum. In our submission that is a misleading figure in relation to the question which we were pressing on the Minister in Committee. The figure of £14.8 million entirely ignores the costs involved if it became necessary to upgrade the three existing sewage treatment works upstream of the barrage and to improve the 381 sewage outflows into the Taff and Ely rivers.

That is the information that we have been seeking from the Minister since the Second Reading debate last year. I should have thought that there could be no possible grounds for denying the House that information before it decides whether or not to pass the Bill. I beg to move.

Baroness White

My Lords, my noble friend Lord Prys-Davies clearly outlined the main difficulties before us, so I do not want to take up too much time at this stage. We are being asked to pass legislation which leaves us with unanswered questions. If one looks at Clause 8, to which the amendment relates, one sees, The Development Corporation shall operate the barrage in accordance with any reasonable direction given by the National Rivers Authority". Who decides what is reasonable? The Welsh Office certainly does not possess the knowledge or capacity to judge.

We are concerned that should conditions arise—nobody can prove it until the barrage has been built—as described by my noble friend, connected with the dangerous nutrients from the three sewage works, it would be much more costly to remedy that situation than to remedy the oxygen situation described in the Bill before us.

I have been even more puzzled by something which appeared in cols. 55 and 56 of the Written Answers in yesterday's Hansard. It is true that it relates primarily to charges. But it is made clear that in various circumstances the Government will expect the environment agency, which is not yet in existence, to take over some of the relevant functions of the National Rivers Authority and the Drinking Water Inspectorate. Will that really happen?

There are references also to the fact that the Government are inviting their EC partners to re-examine priorities for the Urban Waste Water Treatment Directive, which is part of the amendment moved by my noble friend. There are uncertainties which we are being asked to accept in good faith. It would be helpful if we could have further reassurance that there will be means by which, should the condition arise in particular with the three sewage works concerned, it will be possible to deal with them adequately when the time arises and that funds will be available for doing so. At the moment we have no assurances whatever on either of those points.

Lord Moran

My Lords, I should like to lend my support to this amendment moved so clearly and persuasively by the noble Lord, Lord Prys-Davies. I have a particular interest in sensitive waters because I was a member of your Lordships' environment sub-committee which first considered the European Community Urban Waste Water Treatment Directive. We went into it very thoroughly and we were in no doubt about the importance of sensitive waters.

My information is that the NRA has advised the Department of the Environment that the Cardiff Bay impoundment should receive sensitive area status if the barrage is built because it complies, in its judgment, with the criteria for designation outlined in that directive and with the additional guidelines developed by the DoE. I very much share the view of the noble Lord, Lord Prys-Davies, that since the NRA, which has gone into this very thoroughly and considered the chemical content of the water and all aspects of it with great care, has recommended that the inland bay should receive sensitive area status., it would he very surprising indeed if the Government were to reject that recommendation. I hope very much that they will accept that and that before the end of the year they will have designated the bay as a sensitive area.

The second issue that then arises is the question of whether there is a need for nutrient stripping. If the bay is designated as a sensitive area, the requirements of the directive for nutrient removal will apply to five, not three, sewage works. There is a clause in the directive which allows exemption from nutrient removal. It states: Removal of phosphorus and/or nitrogen should be included unless it can be demonstrated that the removal will have no effect on the level of eutrophication". As I understand it, as yet, the NRA has not received any guidance or advice from the Department of the Environment on how an application for exemption status can be made or how one can demonstrate—I draw your Lordships' attention to the word "demonstrate"—that the removal of phosphorus and nitrogen will have no effect on eutrophication. That is extremely important.

I do not believe that the costs are likely to be so great. I believe that the cost of nutrient removal at the five sewage works will not exceed about £1 million. So in terms of the total cost of the project, it is not excessive. If one were to clean up all the outflows into the Taff and Ely all the way up, it would be a very expensive operation indeed. But I do not think that it has yet been demonstrated that that will be necessary, and obviously it would not be sensible to do it unless one really believed that it would have a beneficial effect. I know that the NRA is discussing all these matters with the Cardiff Bay Development Corporation and it is wholly in the interests of the development corporation that the water quality should be satisfactory. I hope that these discussions will result in a satisfactory solution. It is essential that, the NRA having recommended that the bay should be a sensitive area, the Government should accept that recommendation.

Viscount St. Davids

My Lords, as I indicated to the noble Lord, Lord Prys-Davies, when he raised this matter in Committee, no final decision has yet been taken about whether the impounded lake will be designated a sensitive area. I am not sure as to where the noble Lord, Lord Moran, obtained his advice. I am advised that it is on the NRA working document, but as yet no formal decision has been made. However, it is on the current working document. If it remains on that list when it is submitted formally, the Government would have to think very carefully indeed before they chose to disregard the advice of their statutory advisers on water quality. I have to say that I consider it highly unlikely that such a situation would occur.

The provisions of the Urban Waste Water Treatment Directive are there to be complied with. If it was thought that the Government were failing to comply with provisions of the directive, then the usual remedies before the European Court are available.

Following last week's Committee stage, I wrote to the noble Lord, Lord Morris of Castle Morris. Copies of my letter have been placed in the Library. The directive does not require the removal of nutrients by means of tertiary treatment if it can be shown that removal will have no effect on the level of eutrophication. The development corporation's investigations Indicate that it would be possible to remove 80 per cent. of the total phosphorus load at the treatment works. However, the release of retained phosphorus in the bay would mean that the level of algal growth would not be reduced. That is the basis on which the development corporation concludes that tertiary treatment will not be necessary. It is not a case of the development corporation seeking exemption from the requirements of the directive. It will be for the NRA to advise at the appropriate time whether or not the removal of nutrients will be necessary.

Your Lordships are rightly concerned to know what the costs associated with achieving water quality will be. The work which the development corporation knows will have to be undertaken has been costed. The diversion of direct sewer discharges will cost about £14.8 million. This is included in the £37 million identified in the Financial Memorandum on the face of the Bill. Your Lordships are not therefore being asked to pass the Bill without knowing the financial implications.

Despite the fact that the corporation does not expect to have to undertake the removal of nutrients, it has examined the order of magnitude of costs involved if it were required to do so. Based on the evidence of nutrient removal techniques in Germany and Ireland, the development corporation estimates that the capital cost of carrying out such work at the relevant treatment plants would be around the figure indicated by the noble Lord, Lord Moran—between £1 million and £1.5 million. Annual running costs would be of the order of £300,000. But I want to emphasise once again that this is not an official estimate of the costs and it is still too early to reach a firm view on how the implementation of the directive will impact on the inland bay or indeed any other stretch of water. In the circumstances I would hope that the noble Lord would seek the agreement of the House to withdraw the amendment.

Lord Prys-Davies

My Lords, I wish to make two points in reply and I shall make them quickly. I believe I heard the noble Viscount confirm that if it is the advice of the NRA that the impounded lake should be given sensitive area status, it is highly unlikely that the Government would reject that advice. I find that reassuring because we do not want to rely on Clause 8(3) (b) of the Bill, which enables the NRA to set objectives for improving water quality, unless there is an understanding with Ministers that the impounded lake will have the status of a sensitive area.

As for the costs, at least we have today exacted some information from the Minister. With the greatest respect, the figure of £14.8 million did not include the cost of upgrading the sewage plants and of improving the 381 outflows. I am grateful for those figures. I shall consult with others and decide whether or not I should bring the issue back before the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 7 [Groundwater damage protection]:

4.30 p.m.

Lord Prys-Davies moved Amendment No. 4:

Page 32, line 36, after ("building") insert ("and a garden belonging to a building").

The noble Lord said: My Lords, this is the last amendment. I shall deal with it as quickly as I can. It is my fault that an amendment relating to gardens was not adequately presented to the Committee. By way of mitigation, I believe that my instructions were not too clear at that stage. I remind your Lordships that under the terms of Schedule 7 to the Bill which sets out the compensation code, groundwater damage suffered by a building or a garden—I emphasise "or a garden"—will be covered by the compensation code in Schedule 7 if they are situated within the district referred to in the Bill as "the protected property area". In addition, a building outside the protected property area but sited within the districts referred to in paragraph 5 of Schedule 7 will also be covered by the remedial or compensation code. But for reasons which clearly seem to have nothing to do with logic, damage to a garden outside the protected area but within the districts in paragraph 5 will not be covered by the code even though the adjoining building will be covered.

Like many others in Cardiff, I am puzzled as to why the Bill should draw this distinction between a garden which is within the protected area and one which is outside it. Indeed, the position seems to be unfair because it is our experience that a garden will often suffer damage, while a building which adjoins it will escape any damage. It is usually the garden which will suffer. It is the first to suffer in the event of flooding or rising water levels because it is at a lower level than the building or because it is on a slope. It does not have the benefit of a damp course.

This amendment seeks to extend the protection to gardens which are outside the protected area. I accept that the amendment is imperfect, but if the essence of it is acceptable to Ministers, I shall be very happy to leave it to them to perfect it. I beg to move.

Viscount St. Davids

My Lords, the protection of gardens is covered under paragraph 18 of Schedule 7. The protection is limited to gardens within the protected property area at the specific request of a Select Committee in another place. It is extremely unlikely that damage to gardens outside the protected property area will occur and inconceivable that such damage would occur without damage to the associated building.

Under the circumstances of the building outside the protected area suffering groundwater damage, under paragraph 9(1) of Schedule 7 the building is treated as if it were a building within the protected property area. In this event the protection to gardens under paragraph 18 would then apply and the garden would be protected.

The essence of the noble Lord's amendment is therefore already addressed in the Bill. Protection to gardens is available outside the protected property area if damage to both the building and associated garden occurs. Perhaps I may refer the House again to the words of my noble friend Lord Brabazon of Tara in his report from the Select Committee dated 16th March of this year: We are content that gardens and other open lands are now adequately protected by the Bill and the various related agreements". The Select Committee considered in detail petitions relating to additional protection to gardens. I commend to the House the views of the Select Committee, who have considered these issues in far greater depth than we can do today. I urge the noble Lord to withdraw the amendment.

Lord Prys-Davies

My Lords, I thank the Minister for that very helpful response. It may well be that I and others who advise me have failed to identify the appropriate paragraph or sub-paragraph in Schedule 7. But in the light of what the Minister has said, we shall obviously have to read the schedule once again. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.