Environment Bill [H.L.] (Hansard, 31 January 1995)

§ Baroness Hamwee
moved Amendment No. 223ZA: Page 38, line 28, leave out ("not exceeding £160 million,").
The noble Baroness said: I wish to speak to Amendments Nos. 223ZA and 223AA with which are grouped Amendments Nos. 223A and 223B. This is an entirely simple and straightforward point. In moving to delete the limits on borrowing, I seek to ask the Minister how those limits have been arrived at. £160 million is a little more than £150 million which was a good round figure, but it seems a slightly odd amount to pick out of the air. My point is as simple as that. I beg to move.

§ Lord Carmichael of Kelvingrove
Perhaps I may help by speaking to Amendments Nos. 223A and 223B which were grouped with the noble Baroness's amendments. I am also concerned about whether the new body will be able to function. The Minister may not be able to give us the figures now, although there is no reason why he should not have them somewhere. How do the total figures for borrowing relate to the amounts that can already be borrowed by the existing bodies? Is any new money involved or is it an accumulation from all the other bodies at present involved in environmental work? Does it all add up to the same thing?
Perhaps I should continue speaking until, as a famous Member used to say, the Seventh Cavalry arrives. If there is no new money for the new body, we will not get far because so much is involved. Perhaps we may have the figures from the Minister.

The Earl of Lindsay
Amendments Nos. 223ZA and 223AA, moved by the noble Baroness, Lady Hamwee, would remove the upper limits on the amounts that Ministers may specify, by means of a negative resolution order, as the total that the agencies may borrow.
I believe that if it were ever necessary for the agency to borrow sums in excess of £160 million for a major project, it is likely that additional enabling legislation would be required, for example, as was necessary when consideration was being given to the building of the Thames Barrier. I do not think that the limit, which is the same as currently applies to the NRA under the Water Resources Act 1991—and that may explain to the noble Baroness why the sum was chosen—will give rise to any difficulties in practice. Nor do I believe that the limit of £5 million for SEPA is likely to cause any difficulties, in particular because it will not be undertaking any major capital works similar to those at present carried out by the NRA. I hope that the noble Lord and the noble Baroness will feel able to withdraw their amendments.
The noble Lord, Lord Carmichael, moved Amendments Nos. 223A and 223B—

§ Lord Carmichael of Kelvingrove
I was not in a position to move them, I spoke to them.

The Earl of Lindsay
Yes. The amendments seek to increase SEPA's borrowing limits to bring them more 1415 into line with those of the environment agency. I suggest to the noble Lord that there is no need to do that since the environment agency's limit applies to both temporary and long-term borrowing. It includes any capital loans relating to flood defence. Since SEPA will not have the responsibility for flood defence works, it is not appropriate for its borrowing limits to be as high in equivalent terms. I am satisfied that the proposed limits are adequate.
In response to the noble Lord's specific question, the borrowing limits of existing bodies is disregarded for the purposes of the borrowing limits in Clause 45. I therefore ask the noble Lord to withdraw his amendments.

§ Baroness Hamwee
I thank the noble Lord for that reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 223A to 223B not moved.]
Clause 45 agreed to.
Clauses 46 and 47 agreed to.
Clause 48 [Provision of information by the new Agencies]:
[Amendment No. 224 not moved.]
Clause 48 agreed to.

§ The Earl of Lytton
moved Amendment No. 224ZA: Before Clause 49, insert the following new clause: ("Corporate plan of the Agencies .—(1) Before the end of each financial year each new Agency shall prepare and publish a corporate plan setting out—

(a) its assessment of the overall effectiveness with which the Agency operates;

(b) its assessment of its performance against its objectives and targets;

(c) its proposed overall strategy for the forthcoming and two subsequent financial years, including the emphasis and resources which it proposes to devote to different areas of its work;

(d) the level of performance which it expects to achieve during the forthcoming financial year.

(2) In preparing the corporate plan referred to in subsection (1) above, each new Agency shall consult such persons and organisations as it considers to be appropriate.").
The noble Earl said: Published with the Bill was a draft management statement which set out many important criteria relating to the Government's expectations for the agency in England and Wales. It is felt by the CBI and others that many of the criteria are too important to be left simply to non-statutory regulatory or guidance purposes. In particular, there is a requirement in the draft management statement to prepare a corporate plan. The first point is that the document referred to in my amendment is already provided for in the draft management statement.
It seems to me that it is important that the new agency sets an example which can be assessed and appreciated by all those in the industry and elsewhere who have to implement its provisions. They include many stakeholders—the public, businesses and environmentalists. They all look to the provision of a 1416 body which provides a clear framework of priorities. In particular, it is important that it demonstrates that it is giving value for money.
In its report Environment Costs, the CBI shows that companies were better able to integrate environmental performance into their business strategies where they were making decisions based on a clear, externally set framework of priorities. So I feel that this is important. It is a probing amendment to find out what the intentions of the Government are. Are we going to have a clear and effective statement of strategies? Is there to be cost-effective regulation? Is there to be a degree of freedom of information?
For all its apparent length, this amendment does no more than say that the agency should publish the report which, in accordance with the management statement, it is due to prepare anyway. So the additional costs should be limited only to the costs of publication. I say "only"; obviously I do not have any idea of what those might be. However, it seems to me that this is an important pointer. I therefore commend the amendment to the Committee.

§ Lord Moran
I should say a word about Amendment No. 224ZC, which has been grouped with this one. As Members of the Committee know, we have been engaged for a considerable number of hours over four days in debating this Bill; but so far we have been singularly unsuccessful in securing other than minimal amendments, and that is somewhat dispiriting. This is perhaps an amendment which, as I hope, the Government will be prepared to accept—or at any rate to consider very seriously and perhaps bring back their own version on Report.
This amendment is to Clause 49 on page 40 of the Bill. That clause requires each of the two agencies to prepare a report on their activities during the year which they must send to Ministers. It requires the Secretary of State to lay a copy of the report before Parliament and to arrange for it to be published. That is very sensible and desirable. My amendment would add to subsection (2) of that clause a requirement that the reports which are already provided for in the Bill should contain an assessment of the aspects of the environment that are dealt with by the agencies and—this is extremely important—a statement of the agencies' priorities for addressing pollution of the environment in the coming year.
It would be very valuable, both to Parliament and to the public as a whole, to be given an indication of what the agency, which will be perhaps the principal environmental organisation in this country, thinks about the state of the environment and about the priorities. If, for example, it thinks that air pollution is the number one priority, it would be helpful for everybody to know that so that we can concentrate on it and see what can be done about it. I believe therefore that this amendment would be useful and sensible. 1417 My noble friend Lord Nathan, who unfortunately cannot be here at the moment but who was here earlier on, authorised me to say that he fully supports this amendment.

§ Viscount Ullswater
Amendment No. 224ZA, moved by the noble Earl, Lord Lytton, would require the agency to prepare and publish an annual corporate plan. It would specify what that plan should cover and require the agency to consult during its preparation.
The corporate plan will be a key means by which the agency develops its future priorities, objectives and targets for consideration by Ministers. And we will indeed expect the agency to follow the NRA's practice by publishing its corporate plan. This will supplement the annual report on its activities for which the Bill already provides.
I believe, however, that the amendment is unnecessary and inappropriate: unnecessary, because corporate planning is a well-established practice for public bodies such as the agency, and the requirement to prepare a plan will be set out in the agency's management statement; inappropriate, because it seems inconsistent with the status of such plans. They are indeed plans, rather than final decisions on programmes and activities. They are submitted to departmental Ministers some time before overall government decisions on the public expenditure survey, and may have to be adjusted in the light of those decisions. Putting the agency's plan on a statutory basis risks confusion of this principle. Indeed, this is why many bodies do not publish corporate plans, and why the NRA's published plan draws attention to the possibility that figures may change as a result of the survey.
Amendment No. 224ZC, moved by the noble Lord, Lord Moran, seeks to introduce a requirement that every annual report produced by each of the agencies should contain an assessment prepared by that agency of those aspects of the environment which are relevant to its functions and a statement of the agency's priorities for addressing pollution in the coming year.
I fully appreciate the concerns that appear to lie behind this amendment. But in the case of the English and Welsh agency I believe it would represent a duplication of effort. The Department of the Environment publishes annually a digest of environmental protection and water statistics. This document presents a wide range of environmental statistics and explanatory text covering all areas of the environment, not just those for which the agencies will have responsibilities.
We would expect the new agency, like the NRA at present, to feed into these publications. But given the wide-ranging nature of the information provided, going beyond the areas of the agency responsibilities, we have concluded in the interests of efficiency and consistency that the department should produce the publication which gives an overview of the state of the environment and reports on progress and priorities. So far as concerns the agency, it will set out its priorities in its corporate plan.
1418 The situation in Scotland is somewhat different. The Scottish Office does not compile and publish environmental information on this scale. Because of that, the Government intends SEPA to publish an annual report on the state of the environment. My right honourable friend the Secretary of State for Scotland will use his powers under Clause 49(4) to require SEPA to publish as an annexe to its annual report a state of the environment report. That will be based on SEPA's duty to compile such information under Clause 31(2). Therefore, although we sympathise with much of what the amendment seeks to achieve, we do not believe that it is necessary. I therefore invite the noble Lords to withdraw their amendments.

§ Lord Moran
I am very grateful to the Minister for his reply to my particular amendment. I have no difficulty at all about the Department of the Environment rather than the agency being the body which publishes and submits to Parliament the assessments of the environment and priorities. However, the digest, although very valuable, is perhaps not the vehicle that I had in mind. Goodness knows, we all have a vast amount to read; and what we really want is something that highlights the view on the current state of the environment and above all the priorities for action. Although they may be there in the agency's corporate plan and in the Government's digest, if some way could be found to bring them vividly across to Parliament and to the public it would be very much in the public interest.

§ The Earl of Lytton
I thank the noble Viscount the Minister for what was a very helpful response. At least he confirmed that it is the intention that the agency will publish its corporate plan in some form, rather on similar lines to the NRA. It remains to be seen in what form that will come in. I very much echo the point that the noble Lord, Lord Moran, just made: it is to be hoped that this document will be meaningful and helpful. On the strength of what the Minister said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49 [Annual report]:
[Amendments Nos. 224ZB to 224ZD not moved.]

§ Lord Elis-Thomas
moved Amendment No. 224ZE: Page 40, line 27, at end insert ("including the publication of a report of the Agency's activities in Wales in a form which complies with the Welsh Language Act 1993").
The noble Lord said: The intention of this amendment is to pursue the debate that we had on 19th January about the specific role of the agency in Wales and the relationship between the England and Wales agency and its activity within the Principality, and in particular to highlight the need for a separate publication of the report of the agency's activities in Wales. Not surprisingly, I also propose that it should comply with the Welsh Language Act.
The intention of the amendment is to ensure that the environmental debate in Wales continues as a distinctive debate. That is because of two factors. 1419 The environmental role of the Secretary of State in the Welsh Office is clearly identified in the work of that department. Indeed, this very day the Secretary of State has published his environmental agenda for Wales which includes references not only to the natural environment and the need efficiently to maintain sites of special scientific interest and nature reserves but also to the whole issue of air quality, environmental quality and waste recycling. They are all issues which are relevant to the work of the agency and are all covered in different ways in the Bill. Therefore I should like to ensure that the agency itself makes a distinctive contribution to the level of the environmental debate within the Principality. As I indicated, that relates to an earlier attempt to strengthen the Committee for Wales. The Government were not prepared to accept that. However, I ask them to look at this matter and at ways in which the agency will provide information.
The second point requires me to repeat a declaration of my interest as chairman of the statutory Welsh Language Board. The board—certainly I—was concerned to see no reference to the 1993 Act in this Bill. We assume that the new environmental agency, being a new public body, is covered by the terms of that Act and that the policies for bilingual publication which were pursued very effectively by the NRA will continue. I know that it is preparing a language scheme which, it is to be hoped, will now be handed on to the agency. I should like confirmation that this area of environmental policy, like all other aspects of public policy, is covered. Is it the Government's intention that that should be so?
It is important that when new agencies are created it is made clear from the start that when they provide a service for the people of Wales, wherever they are placed, they provide that service within the terms of the 1993 Act. We do not want to repeat a situation in which additional costs may be incurred in "bilingualising"—I see that the noble Viscount likes that word—an institution which might previously have been unilingual. We do not want those additional costs to bear upon the administration of any new agency when they might have been absorbed in an integrated fashion from the start. I beg to move.

§ Viscount Ullswater
I can understand why the noble Lord, who is chairman of the Welsh Language Board, as he indicated to the Committee, should wish to emphasise the importance of the agency ensuring that reports on its activities in Wales are in the Welsh language.
I can assure him of the Government's commitment to the Welsh language in public life. I am sure that he will be aware that the National Rivers Authority, for example, already publishes its annual report in both Welsh and English. Through his position as chairman of the Welsh Language Board, he will also know that the board has issued for consultation draft guidelines on the use of Welsh by public bodies and that in due course a final version will be put by the Secretary of State for Wales before Parliament for approval. I have confirmed that the draft guidelines will be brought to the attention of the advisory committee of the agency.
1420 The noble Lord may also wish to know whether it is the Government's intention that the environment agency, when established, should be designated as a public body under Section 6 of the Welsh Language Act. In considering what bodies should be designated under that section, I can assure him that full consideration will be given to the position of the agency. If the agency is designated a public body under the Act, it will become susceptible to notification by the Welsh Language Board that it should prepare a Welsh language report. Doubtless the noble Lord will ensure that the agency's activities in Wales will be properly considered in that event.
In view of those remarks, I hope that the noble Lord will be reassured and will feel that it is not necessary to press the amendment.

§ Lord Elis-Thomas
I am indeed so assured.
Amendment, by leave, withdrawn.
Clause 49 agreed to.
[Amendment No. 224ZF not moved.]
Clause 50 [Local inquiries and other hearings]:

§ Viscount Ullswater
moved Amendment No. 224ZG: Page 40, line 33, leave out ("a local") and insert ("an").
The noble Viscount said: It may be for the convenience of the Committee if I allow the noble Lord, Lord Moran, to address his amendment, Amendment No. 224A, which is grouped with this amendment. Then I can reply to him and also speak to the amendments in my name on the Marshalled List. I beg to move.

§ Lord Moran
I am grateful to the Minister. I can speak very briefly. At present, Section 213 of the Water Resources Act 1991 allows the Secretary of State to call for a local inquiry to be held in order, among other things, to prevent or deal with pollution of any controlled waters or in relation to any other matter relevant to the quality of any such waters. That is a very broadly worded provision. It allows the Secretary of State wide scope to call an inquiry where damage to the environment is threatened.
The Bill contains (on page 255) provision to repeal that section—Section 213 of the Water Resources Act 1991—and to replace it with Clause 50 of the Bill. Essentially, the new clause allows the Minister to call an inquiry in connection with any of the functions of the new agency or of his own functions in relation to the agency. I believe that that narrows the scope of the power to call inquiries in cases of environmental importance. My amendment adopts the broader wording in the Water Resources Act which I feel is better in the circumstance.

§ Viscount Ullswater
Clause 50 gives Ministers broad powers to hold local inquiries in connection with any of the wide range of functions of each new agency. It applies to such inquiries the provisions of the Local Government Act 1972, so that Ministers have powers to obtain papers, summon and cross-examine witnesses and deal with costs.
Amendment No. 224A, tabled by the noble Lord, Lord Moran, seeks to extend those powers to cover an even wider range of environmental matters, so that 1421 Ministers could cause a local inquiry to be held with a view to preventing or dealing with pollution or in relation to any other matter relevant to the quality of the environment.
In so far as these matters relate to a new agency's functions, they will already be covered by the provisions of this clause. Since each agency has functions in relation to integrated pollution control, water pollution, contaminated land and waste, this will include a great many cases in which Ministers might consider that an inquiry should be held.
As far as concerns cases not related to the agency's functions, Section 96 of the Control of Pollution Act 1974 gives powers to the Secretary of State to cause inquiries to be held with a view to preventing or dealing with pollution (other than air pollution) or noise at any place. Section 59(1) of the Clean Air Act 1993 makes a similar provision in connection with air pollution. Taken together, these provisions seem to me to give the Secretary of State all the powers needed to hold formal inquiries on environmental matters.
With that reassurance I hope that the noble Lord, Lord Moran, will feel able, in time, to withdraw or not move his amendment.
Amendments Nos. 224ZG, 224ZH, 224B, 224C and 224D all concern the provision for holding inquiries in connection with the functions of a new agency or the functions of a Minister in relation to a new agency. The amendments remove any doubt there may be as to whether the power to hold a local inquiry is wide enough to include power to hold a regional or national inquiry should that be appropriate to deal with any issue which arises in connection with the new agencies. I beg to move.
On Question, amendment agreed to.

§ Viscount Ullswater
moved Amendment No. 224ZH: Page 40, line 34, leave out ("a local") and insert ("an"). On Question, amendment agreed to.

§ Lord Moran
had given notice of his intention to move Amendment No. 224A: Page 40, line 37, at end insert: ("() Without prejudice as aforesaid the appropriate Minister may cause a local enquiry to be held in any case in which he considers it appropriate for such an inquiry to be held—

(a) with a view to preventing or dealing with pollution of the environment; or

(b) in relation to any other matter relevant to the quality of the environment.").

The noble Lord said: I am grateful to the Minister for his comments. They were somewhat technical and I should like to study them in Hansard to see whether I too can be satisfied that the situation is all right. Having said that, I do not intend to move the amendment.
[Amendment No. 224A not moved.]

§ Viscount Ullswater
moved Amendments Nos. 224B to 224D: Page 40, line 41, leave out ("local"). Page 41, line 6, leave out ("a local") and insert ("an"). Page 41, line 12, leave out ("local"). 1422 The noble Viscount said: With the leave of the Committee, I shall move Amendments Nos. 224B to 224D en bloc. I beg to move.
On Question, amendments agreed to.
Clause 50, as amended, agreed to.
Clause 51 agreed to.
Clause 52 [Continuity of exercise of functions: the new Agencies]:

§ Viscount Mills
moved Amendment No. 225: Page 41, line 36, after ("agreement") insert (", scheme of charges").
The noble Viscount said: I shall speak briefly on Amendment No. 225. The amendment seeks to allow any scheme of charges set up by former boards or authorities to be transferred to the new agency. As I understand it, that is not allowed for within the present Bill. The existing NRA charging schemes, such as those for abstraction licences and discharge consents, are not due to expire until after the agency has been set up.
I do not believe that the agency will be in a position to bring in new charging schemes effective from the transfer date. Any lack of continuity would create a hiatus during which no income-charging schemes would be in place. I am sure that that is not a situation that the Government favour, and the amendment seeks to prevent it. I must stress that it would not prevent amendment of charging schemes at a later date or indeed the introduction of new charging schemes. I beg to move.

§ Lord Moran
I rise briefly to support the amendment moved by the noble Viscount. He is an employee of the NRA and knows what he is talking about. If the facts are as he states them to be, then it is highly desirable that the new agency should be given the charging powers he mentions. We should listen carefully to what he says.

§ Viscount Ullswater
Amendment No. 225 seeks to continue in force the charging schemes made by the agencies' predecessor organisations. I recognise the anxieties that underlie my noble friend's amendment but do not believe that this is the correct way to proceed.
As matters stand, existing charging schemes will cease to apply once the agencies take over their statutory functions. Charges to be made by the agencies will be prescribed in schemes made by them under Clauses 39 and 40. I believe my noble friend is concerned that the agencies' charging schemes may not be in force by vesting day and I agree that we must avoid the situation he described.
However, it would not be sufficient merely to enable the schemes made by the predecessor bodies to continue. The agencies' charging schemes are required to be made under Clauses 39 and 40 instead of under the existing legislation. Therefore, while I believe that Amendment No. 225 is technically deficient and I ask my noble friend to withdraw it, I shall undertake to look 1423 again at the issue he raises and consider whether we should later bring forward a provision which would satisfactorily meet his anxieties.

§ Viscount Mills
I am grateful to my noble friend for his comments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 52 agreed to.
Clause 53 [Interpretation of Part I]:

§ Lord Carmichael of Kelvingrove
moved Amendment No. 226: Page 44, line 24, at end insert ("and such date shall not be before 1 April 1997.").
The noble Lord said: Briefly, Amendment No. 226 could help the Minister if he is prepared to accept it. It seeks to say that the timetable given for the implementation of the Bill is unreasonable and unrealistic, particularly in view of the uncertainty and flux already being experienced by local authorities in relation to the implementation of the Local Government (Scotland) Act 1994.
It is not the perfect start for a body for which we have great hopes. In fact, I do not know whether the Government have anything else to do, but in relation to Scottish matters they seem to be pulling up the plant every two or three months and looking at the roots to see if it is still growing. I know the programme is well advanced but there will be many problems. Good, hardworking local people are going to be labouring all hours in order to try to set up the organisation. If the Minister cannot say that he accepts the amendment, then we hope that he can give us good reasons why not and that he can assure us that he will meet any difficulties. There is going to be an enormous amount of compulsory overtime for local authority employees. I beg to move.

The Earl of Lindsay
I agree with the sentiment behind the amendment. I especially agree with the reference to the "good, hardworking local people" who will be involved both in the local government reorganisation and in the setting up of SEPA.
However, the noble Lord, Lord Carmichael, raises concerns about the timetable of SEPA coinciding with the reorganisation of local government in Scotland. That is deliberate, and for very good reasons. There is a great advantage in transferring local authority functions to SEPA at the same time as local government is reorganised. The transfer can be taken into account by the new unitary authorities and they can be given a fresh start with their full new range of responsibilities.
The alternative would be for these new authorities to have functions on a temporary or mark-time basis. I do not believe that that would be the best solution either for the efficient discharge of these functions and therefore for effective pollution prevention and control or for the authorities concerned. We very much wish to avoid those factors. On that basis, I invite the noble Lord to withdraw his amendment.

§ Lord Carmichael of Kelvingrove
Obviously, in a perfect world, one can see the point of having the two changes taken together. However, with the upset caused 1424 by the new local government areas which will start in April, it will be very complicated. With the warning that I have given the Minister and the reaction that he is bound to get from local authorities in Scotland, I feel that I have done my bit. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

The Earl of Lindsay
moved Amendment Nos. 226A and 226B: Page 44, line 34, after ("1996") insert ("—(a)"). Page 44, line 38, at end insert ("; and (b) in section 22(3) (a) (iv) above the reference to an islands council shall be construed as a reference to a council mentioned in section 3(1) of the Local Government etc. (Scotland) Act 1994.").
The noble Earl said: Amendments Nos. 226A and 226B are technical amendments. They ensure that, when changes in the designations of islands councils brought about by the Local Government Etc. (Scotland) Act 1994 take effect, provisions in the Bill still read correctly. I beg to move.
On Question, amendments agreed to.
Clause 53, as amended, agreed to.
Clause 54 [Contaminated land]:

§ Lord Northbourne
moved Amendment No. 226C: Page 45, line 7, after ("in") insert ("or").
The noble Lord said: I rise to move Amendment No. 226C and shall speak also to Amendment No. 226D. I should like to declare a possible interest, in that I have 20 per cent. holding in a private company which owns the freehold of the surface of one of the pits in the Kent coalfield, now closed, which is leased to the coal board. This small amendment raises two issues, the first of which is a drafting matter. Strictly speaking, "in the land" includes "under the land". Since the 13th century common law has defined land as everything up to the sky and down to the centre of the earth. Of course, that common law rule is limited by subsequent statutes, such as the coal nationalisation legislation.
The second purpose of the amendment is to probe what the Government really mean by "in, on or under the land". Is a landowner to be made responsible for whatever goes on under his land, however deep down? How can a landowner know whether a mine gallery is being driven 1,000 feet under his land—because a coal operative has a perfect right to do that under the coal legislation? How can he know if polluted water has come under his land in an aquifer hundreds of feet down? It does not seem to me sensible to place such liabilities on householders and small landowners. I beg to move.

§ The Earl of Lytton
As this amendment also has my name to it, I rise to say that I agree with the noble Lord, Lord Northbourne, and his succinct description of the problems. There are many instances where activities that go on on adjoining land, sometimes some distance away, can affect the substrata in a way that is outside the control of the landowner. I believe there is a very serious risk that knowledge of historical events may not be in the public domain and therefore may not be available to those who acquire or own land. If we are to 1425 have regard to the "polluter pays", we must address that particular problem. I strongly support this amendment in trying to ascertain the Government's views.

§ Lord Gisborough
I support this amendment. I live on an area of moorland beneath which are plates of rock. Pollution from ironstone mines comes from miles away and runs along the plates. I support the amendment.

§ Viscount Ullswater
Amendment No. 226C, moved by the noble Lord, Lord Northbourne, together with Amendment No. 226D, seeks to make a technical change to the definition of contaminated land. By removing the reference to substances under the land it would leave only those substances in or on the land. The Government's only intention in including the word "under" was to ensure that the definition was sufficiently broad and that there were no unfortunate and undesirable omissions. For example, the definition of land in the Interpretation Act 1975 includes land with water. We want to make sure that any contaminated silts at the bottom of streams and ponds, both of which may themselves be considered as land, can be dealt with under these provisions.
We also wish to avoid any doubt that the definition would include substrata beneath the soil, as we would need to address those in order to protect groundwater and aquifers. I am advised that the case law on the definition of land would leave some uncertainty as to whether all substrata were included in the meaning of "land" and so for the avoidance of doubt the reference to "under the land" must remain. That in any event reflects the definition of "land" in the Law of Property Act 1925, which refers to substances under the land. However, to make sure that we eliminate entirely any doubt on this question, I would not wish to accept the amendments.

§ Lord Northbourne
My noble friend's reply has answered one question but it has created a good many others. While I am prepared to withdraw the amendment as it stands, there is a whole can of worms here about things that go on under the land which are totally out of the control of the owner of the surface of the land. We shall hope to raise those matters at a later stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 226D not moved.]

§ Lord Northbourne
moved Amendment No. 226E: Page 45, line 9, at beginning insert ("serious"). The noble Lord said: In moving Amendment No. 226E, I shall speak also to Amendments Nos. 226F, 226G, 228A and 228B. This is a further set of important amendments about the definition of contaminated land and they are intended to probe the Government's intentions. As the Government themselves stated in paragraph 2.6 of their policy framework: It would be neither feasible nor sensible to try to deal with all land contaminated by past activities at once. The wealth creating sectors of the economy could not afford to do so. The urgent and real problems should be dealt with, but in an orderly and controlled fashion with which the economy at large and individual businesses and landowners can cope". 1426 This approach requires remedial action only where, as the Government say in paragraph 2.4 of the framework document, the contamination poses unacceptable actual or potential risks to health or environment and there are appropriate and cost-effective means available to do so, taking into account the actual or intended use of the site.
As drafted, the definition in the Bill, together with the remediation duties, seems to cover all contaminated land, no matter what the level of risk to the environment or the degree of harm. It simply is no good for the Minister to say that we must rely on guidance proposed under new Section 78A(3) to limit the definition. It surely would be ultra vires if guidance purported to limit the scope of a duty imposed by Parliament on local authorities to remediate where any contaminated land is farmed.
The proposed amendments seek to restrict the duties laid on the agency and the local authority to dealing with harm which is both serious and requires immediate remediation. That is entirely in line with the intentions expressed in the framework. I beg to move.

§ The Earl of Lytton
I rise to support this group of amendments. Although my name is not attached to Amendment No. 226F, I should like to support that amendment as well. It is vitally important that we have some further clarification of the definition of "harm". In the 1990 Act, the definition is drawn very widely. It could include almost anything, however insignificant. Something needs to be done to bring this into line with the principles of BATNEEC on the one hand and the best practicable environmental option on the other.
If the small and insignificant can be picked up along with the large, not only, as the noble Lord, Lord Northbourne, said, will we not get a proper priority set out for the necessary clean-up of such sites but also resources will be devoted to dealing with what one might call small fry situations rather than the more serious ones. Thinking in countryside terms, where I ought to declare some kind of interest, it is almost impossible to imagine one's bullocks milling at the gate without causing some muck in the gateway. In theory, bearing in mind that on Exmoor, where I farm, we already have problems with the outwintering of cattle and the surface damage caused in that situation, particularly on open moorland areas, it would not take much for an authority to pick on this and say, "Right, you, Lord Lytton, have got to clean up your act and you have to stop causing this damage". That is the logical conclusion of the term "harm" as a stand-alone word. I strongly support the amendments.

§ Lord Stanley of Alderle
I am somewhat concerned about the amendment. I warned my noble friend that I would raise this point. I am sure that your Lordships will have noted the definition of "harm" on page 46. Subsection (8) states: 'Harm' means harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property".
I hate to say this, but I am concerned about fly-tipping on private land, which I believe could increase because of the increased costs that have recently been imposed in relation to waste disposal. What is the position of the 1427 owner of land which has been subject to fly-tipping given that, as I understand the definition that I have just read out, that could lead to contamination. Is the landowner then liable? If so, that seems quite a problem.

§ The Earl of Kinnoull
I should like to support the amendments which stand in the name of the noble Lord, Lord Northbourne. There is a great deal of worry outside the House about the width of the definition and about why it is in such conflict with the Government's structure policy which was published only in November 1994. The noble Lord, Lord Northbourne, quoted part of it, but perhaps I may remind my noble friend that the policy recognised that where contamination poses an unacceptable risk to health—the word "unacceptable" is a limiting factor—the objective of the framework is not only to improve sites, as and when hazards need to be dealt with, but to encourage an efficient market in land which has been contaminated. That is a very practical point of view. Finally, the objective is to encourage the development of such land.
I hope that my noble friend will be sympathetic to the amendments because the definition, as presently drafted, could lead to authorities having to serve remediation notices on the smallest point. They would have no option but to do so. This is a serious issue and I hope that my noble friend will consider it.

§ Viscount Ullswater
The main aim of the amendments moved by the noble Lord, Lord Northbourne, is to change the overall definition of contaminated land in these provisions so that it includes only land causing, or likely to cause, serious harm or serious pollution of controlled waters such that immediate remedial action is required to ensure that its condition was suitable for its actual or likely use.
I am very grateful to the noble Lord for moving these amendments, as it provides an opportunity to expand on the Government's intentions in bringing forward the contaminated land provisions as a whole. As I said in our debate on the Second Reading of this Bill, these provisions are centred around our overall "suitable for use" approach to the issue of contaminated land.
In policy terms, this approach was described in our document Framework for Contaminated Land, as requiring remedial action, only where the contamination poses unacceptable actual or potential risks to health or the environment; and there are appropriate and cost-effective means available to do so, taking into account the actual or intended use of the site". We believe the "suitable for use" approach deals with the genuine environmental problems presented by contaminated land, but does so without creating unnecessary financial and regulatory burdens. But how we convert that policy into statute is what underlies this current debate.
These amendments, and other comments and suggestions we have received from our continuing consultations and discussions with individuals and organisations outside Parliament, suggest that the definition of contaminated land currently contained in 1428 this Bill perhaps goes beyond our original policy intentions and could include sites not posing unacceptable risks.
I would suggest, however, that the test of "serious" harm or pollution and the requirement for immediate remediation which is set out in the amendment could suffer from the opposite problem of being too narrow and restrictive. The Government acknowledge that the question of definitions is critical to these provisions as a whole and if the noble Lord will agree to withdraw his amendment, we would welcome the chance to bring forward our own amendments at a later stage to bring the legislative provisions into better alignment with our original policy intentions.
My noble friend Lord Stanley gave me warning that he was going to bring up the problem of fly-tipping, and raised the question of land which has been contaminated as a result of fly tipping. Of course, not all fly-tipping will result in land becoming contaminated, as defined in the Bill. While illegal in itself, fly-tipping of a small amount of builder's rubble may not result in contamination. On the other hand, I appreciate that fly-tipping of more toxic substances goes on and could cause contamination.
The provisions in Clause 54 do not specifically identify land which has been contaminated as a result of illegal action, such as fly-tipping. The reason is that in many cases it is not possible to determine precisely how or when a piece of land became contaminated, or whether it was the result of such activities. Where fly-tipping is known to have occurred, remedies already exist under Part II of the Environmental Protection Act 1990. In particular, Section 33 enables prosecution of the person who deposited the waste; and Section 59 contains power to require removal of waste unlawfully deposited. I am sure that those provisions are adequate to deal with the problem of fly-tipping.
I understand the concern of the noble Lord, which was echoed by other noble Lords who spoke about the problem of the definition, and with my explanation I hope that the noble Lord, Lord Northbourne, will see fit to withdraw the amendment.

§ Lord Stanley of Alderley
Before the noble Lord, Lord Northbourne, replies, I was pleased to hear my noble friend's remark about fly-tipping, but he missed one important point which always arises with fly-tipping; that is, one cannot find the person who fly-tips. If one cannot find the person who fly-tips, and it is causing contamination, which it may well be, am I responsible?

§ Viscount Ullswater
As I said, the provisions of Clause 54 apply to land which has been contaminated as a result of illegal actions such as fly-tipping. To that extent, the owner of such land could be liable under those provisions. However, the owner could already be liable to deal with contamination under statutory nuisance and town and country planning legislation. So these provisions do not significantly change liability in that respect.

§ Lord Elton
Before the noble Lord, Lord Northbourne, decides what he will do, perhaps I may 1429 ask my noble friend to let me know—it might save the Committee's time if he does so at his leisure—whether the word "remediation", which is in the amendments, occurs here for the first time in the Bill or has been invented at some other time. If it is in the Bill, I should like to protest about it later.

§ Viscount Ullswater
I had better obtain advice upon that point and come back at another stage.

§ Lord Williams of Elvel
Is the noble Viscount not aware that "remediation of contaminated land" is a term of art? It is perfectly well understood in all professions that have to do with this.

§ Lord Northbourne
I most grateful to the Minster for what he has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 226F and 226G not moved.]

§ The Deputy Chairman of Committees (Lord Lyell)
I have to inform the Committee that if Amendment No. 227 is agreed to, I shall be unable to call Amendments Nos. 227ZA to 227B inclusive.

§ Lord Lucas of Chilworth
moved Amendment No. 227: Page 45, leave out from beginning of line 15 to end of line 2 on page 46.
The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 229, 230, 231, 233A, 234, 237 and 245, all of which are consequential upon Amendment No. 227. I should like also to address a few remarks to Amendment No. 227ZA in the name of the noble Baroness, Lady Hamwee, and Amendment No. 227A in the name of the noble Lord, Lord Northbourne, because they are germane to what I have to say.
We are entering a new area; that of contaminated land. Its degree of seriousness is indicated by the number of amendments on the Marshalled List. The amendments tabled in my name seek to remove the special arrangements for landfill sites, which in all conscience fall within the wider category of contaminated land.
The definition of contaminated land in Clause 54 is welcome. It is defined as land causing or likely to cause harm or pollution of controlled waters. An introduction of the new provisions will remove some of the doubts and uncertainties that have arisen in the past.
It is not my intention to seek any favourable treatment for closed landfill sites. However, I am puzzled to see that separate arrangements are proposed for closed landfill sites. Even more puzzling is exactly what the special arrangements are designed to achieve.
Clause 54 proposes a straightforward procedure. Local authorities will identify contaminated land then issue remediation notices, according to the advice of the agency. As regards closed landfill sites, the process becomes more complicated. There are a series of notifications from the local authority to the agency, from the agency to the Secretary of State, from the Secretary 1430 of State to the agency and then to the local authority. If at that stage the site is designated special, the agency will prepare a remediation statement. If it does not, the local authority will do so. Nowhere in the Bill is it clear exactly what is the purpose of a remediation statement and its relationship to a remediation notice. One presumes that at the end of the day the net result will be a remediation notice.
There appears to be some obscurity behind the clause. One is driven to speculate whether it is designed to address the problem of old local authority sites which were never licensed. In that case, presumably the authority will be unable to serve a remediation notice on itself. Will private and public sites be treated in the same way? What exactly do the Government want?
Amendment No. 227 sweeps away the entire definition of landfill, leaving it purely and simply as contaminated land—which is what it is—unless it is cleared by the local authority. Why do we need to mess about? Why not call a spade a spade and have done with it?
In Amendment No. 227ZA the noble Baroness, Lady Hamwee, and the noble Lord, Lord Beaumont of Whitley, seek a different definition of a closed landfill site. No doubt they will explain the matter and say whether I am wrong or confirm that I am right. Their amendment appears to widen the definition to include all and any landfill sites from whatever time they became so. As I said, Amendment No. 227 effectively calls for landfill to be defined as contaminated or potentially contaminated. That is as it may well be determined by the agency.
Therefore, I am left in a good deal of confusion as to why a closed landfill site should be picked out separately from any other contaminated land. Frankly, there is no great mystery about a landfill site. It is either contaminated, potentially contaminated or it is not contaminated. That can be determined. Monitoring and inspections in relation to the use of the site will take place for years and years after it is closed. If my noble friend is able to help me, I shall know rather better how to proceed with my amendment. I beg to move.

§ Lord Gisborough
I should declare an interest because I have an old and a present landfill site on my land.
The amendments would provide a defence for a person to argue that at the time it was carried out, the activity which led to the land being subsequently deemed to be contaminated was entirely legal and represented the state of the art at the time. In its report in the 1993 EU Green Paper on the use of civil liability for remedying environmental damage, the House of Lords European Communities Committee argued that there should be a state of the art defence as a matter of equity to encourage people and companies to make their best efforts to minimise the risk of future pollution.

§ Lord Northbourne
Perhaps I may speak briefly to Amendment No. 227A. Its purpose is to exclude from the provisions of the clause sites where the deposit took place before the coming into force of Section 3 of the Control of Pollution Act 1974. That Act was the forerunner to the current controls over waste, and under 1431 Section 3 of that Act, it became an offence for the first time to deposit controlled waste on any land. This amendment clarifies the deposits which are covered and limits them to those which were regulated at the relevant time by excluding those which could not have been regulated at the relevant time. That is entirely in accordance with the preceding subsection.

§ The Earl of Lytton
I too should like to speak briefly to Amendment No. 227A. It seems to me that the problem revolves around the question of blight where old landfill sites of one sort or another have been subsequently built on in good faith and no doubt with the benefit of building regulations consent from the local authority and in the full knowledge and extent of the then state of the art for cleaning up the site.
We know that some cases have not been entirely successful. Migration of methane gas and putrescible material has been found under some of those areas. It is perhaps less of a problem on an industrial site. Although I have no direct personal knowledge, I believe that a number of residential sites have been affected if not directly then indirectly by proximity. Are those owners to be the people on whom remediation notices will be served? Will their equity be affected?
There is a case to answer here which the Government have not addressed. I am concerned that unless we have an indication from the Minister that there will not always be somebody standing to stop the bullet which is being fired in the name of remediation, we are in for a very serious time in relation to some of those hard cases.
In my view, it is not possible for government departments and the Treasury between them to say, "We want an entirely risk-averse situation". No such thing exists in life; we all run risks. Running risks based on our own past national performance and standard of doing things, and so on, is one of the occupational hazards of progress.
Therefore, in certain circumstances, it will ultimately have to be accepted that some things are a collective, public problem and that they have to be treated like that if we are to procure a collective, public benefit through the clean-up. There is a very important point involved. I am pleased to support Amendment No. 227A, tabled in my name and that of the noble Lord, Lord Northbourne.

§ Viscount Ullswater
In speaking to Amendment No. 227, I shall deal also with Amendments Nos. 227A, 227ZA, 227B, 229, 230, 231, 233A, 234, 237, 237ZA and 245. The amendments all address the way in which contaminated closed landfill sites are considered and dealt with within the overall provisions for contaminated land.
Amendment No. 227, moved by my noble friend Lord Lucas of Chilworth, would remove entirely the definition of "closed landfill sites". Other amendments tabled in the name of my noble friend would then replace references to closed landfill sites in particular with references to contaminated land in general. The Government's view is that an element of attention to some of the problems particularly associated with closed landfills is justified.
1432 From a technical point of view, closed landfills can give rise to particular types of problem from methane gas, noxious leachate or a diverse range of contaminants, as indicated by the noble Earl, Lord Lytton. That is not to say that they are necessarily more harmful than other kinds of contaminated sites, but in general the extent of contamination tends to be deeper and to present a certain type of engineering problem. Specific consultation with the agency, and in particular with its waste regulation side, which will inherit the wide experience of the waste regulation authorities, is therefore desirable to ensure that those sites can be dealt with in the best way.
In singling out closed landfills for a more tailored approach, we are reflecting the special emphasis given to such sites in much of Europe. We are also reflecting the concern expressed by Parliament during the passage of the Environmental Protection Act 1990, which led to provision for a special remediation regime for closed landfill sites, under Section 61. The section has not, in the event, been implemented, and the provisions of Clause 54 will replace it.
Amendment No. 227A, moved by the noble Lord, Lord Northbourne, is more limited in its intentions. It would remove explicitly from the definition of a closed landfill site any site in which waste was deposited entirely before the coming into force of the waste disposal licensing regime under Section 3 of the Control of Pollution Act 1974.
The Government do not support the amendment. Our intention was that those older sites should be included within the definition of closed landfill sites. We believe that that is implied by the reference to the deposit of controlled waste "without the authority" of a waste licence.
The Control of Pollution Act provided the first modern environmental regime for closed landfill sites. Prior to its introduction, those sites were regulated only through conditions set in planning approvals. As I explained a few moments ago, not all landfill sites will present problems. But, if anything, it is those older sites which pre-date the modern environmental regimes which are most likely to need the particular attention from the agency which the provisions set out for closed landfills provide.
Amendments No. 227ZA and 227B, tabled in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Beaumont of Whitley, seek to provide an alternative route through the question. They would remove the exhaustive definition of a closed landfill site that is currently provided, and replace it with a system by which a local authority would certify a site as being a closed landfill where it had been used for the deposit of waste.
This would appear to offer some simplification in comparison with the exhaustive definition currently in these provisions. But, in practice, I suspect that the effect of these amendments could be to add to the complexity of the procedures, as landowners might well wish to appeal against the certification of their sites as closed landfills, particularly in the light of the general concerns which exist about such sites being stigmatised even under the existing definition. 1433 The Government have a further particular concern with these amendments. As currently provided, only those closed landfill sites which are also contaminated land come within the scope of these powers. This important qualification is omitted in the proposed certification procedure. The Government see no justification for local authorities being required to identify and certify closed landfill sites which are not presenting any environmental problems.
Amendment No. 237, in the name of my noble friend Lord Lucas of Chilworth, and Amendment No. 237ZA, in the name of the noble Baroness, Lady Hilton, would extend the duty on local authorities to prepare remediation statements. As currently provided, this applies only to closed landfill sites and not to contaminated land generally. This restriction was deliberate. The intention behind the introduction of this distinct phase was to provide a public statement of the overall approach the enforcing authority intended to take for individual sites.
A remediation statement would not of itself require any specific action of anyone else. This would still be achieved through a remediation notice. We felt that this extra public stage was needed for closed landfill sites but not other sites, to reflect the greater likelihood that these sites would require more by way of long term remedial action and continued monitoring by the enforcing authority. This might particularly be the case where the site was generating landfill gas. Although public statements by the enforcing authorities about the remediation on individual sites might be helpful at some other sites as well, the Government do not believe that the preparation of such documents should be a statutory requirement in those cases. I therefore could not accept either of these amendments. I hope I have gone some way to explain the Government's position on these amendments and would ask noble Lords to withdraw their amendments.

§ Lord Lucas of Chilworth
Of course I shall withdraw the amendment, because there is nothing else I can do tonight. But I shall come back again to it another day. I hope my noble friend will accept what I have to say in the spirit in which I say it, and bearing in mind our very long and friendly relationship. I find his answer totally ineffective. I view that answer as a series of excuses, born mainly out of the failure of the Government to implement the provisions of the 1990 Act.
My noble friend said that during the passage of that Act much concern was expressed by Parliament over landfill and it was therefore decided to make special provisions. If memory serves me right—and it may not—I think it is Section 60 of the 1990 Act which provides for that concern to be remedied. But that provision—I may be wrong on the number—has not in fact been enacted. That is why we have today a cobbling together of a number of provisions—HMIP, and those provisions relating to landfill, which together make certain aspects of this clause somewhat heavy going and which are not in fact dealing with the real problem. My noble friend said, as regards landfill in particular, that 1434 the extent of contamination is deeper than in other kinds of contaminated land and the engineering problems are more difficult and we therefore need a tailored approach. Much has happened since 1989 in terms of engineering of landfill sites. There is no great problem there.
My noble friend said that there has been stigmatisation of land which is a closed landfill site. I cannot think of any greater stigma than contaminated land, whether an old gas station—such as the one which seems to have reached the headlines in the press recently—or anything else. There is far more danger in old oil sites, old chemical sites and old gas sites than there is in the controlled environment of a closed landfill site.
I do not find my noble friend's answer reassuring or comforting. I shall return to the matter on another occasion. However, as I suggested at the beginning of my response, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 227ZA to 227B not moved.]

§ Lord Lucas of Chilworth
moved Amendment No. 228: Page 46, line 3, leave out ("a closed landfill site") and insert ("an area of contaminated land").
The noble Lord said: In moving Amendment No. 228 I shall speak also to Amendments Nos. 235 and 236 in my name and Amendments Nos. 228ZA and 233B in the names of my noble friends Lord Crickhowell and Lord Mills.
The purpose of my amendments is similar to the purpose of the amendments of my noble friends but they relate to a wider issue, namely the treatment of landfill sites under the contaminated land provisions. Amendment No. 228 and its consequential amendments relate specifically to seriously contaminated sites.
Looking at the Bill as drafted, what are we to make of the curious phenomenon of "special sites"? Those special sites will only ever be closed landfill sites. However, the statistics which were presented to a parliamentary inquiry by the Department of the Environment in 1989 show that landfill sites are by no means the major constituent of contaminated land. Landfill sites account for just under 25 per cent. of contaminated land. An equivalent number of sites are spoil heaps from metal mines. What distinguishes closed landfill sites from those or old gasworks? My noble friend the Minister has not provided a satisfactory answer.
Landfill sites are subject to strict controls with respect to their initial location, preparation, operation, restoration and post-closure management. Since landfill sites will be regularly monitored by the operator until the agency is satisfied that harmful pollution is unlikely, one would think that of all the potentially contaminating uses of land, that is the least likely to cause problems, precisely because it is so regulated.
I hope that my noble friend the Minister will not suggest to the Committee that I am asking that landfill sites be treated more favourably than other contaminated land. Rather, I should like to see landfill sites—closed or otherwise—receive precisely the same treatment. 1435 I am worried that there is a hidden agenda here. If not properly maintained, closed landfill sites remain the subject of concern in the minds of the general public for some 20, 30 or 50 years. Quite rightly, the general public have exercised their rights to demonstrate, complain and lobby about matters which give them some concern. I suspect that they will be giving themselves the opportunity to demonstrate about the gas sites which are proposed to be sold to the public. No one knows too much about the level of their contamination.
I must ask my noble friend to give a better reason why a closed landfill site, decreed to be contaminated until such time as it is given a clearance certificate, should be treated any differently from any other contaminated land. The group of amendments follows that reasoning.

§ Lord Williams of Elvel
I do not know whether the noble Viscount, Lord Mills, will speak to one of the amendments in his name and in the name of the noble Lord, Lord Crickhowell. It is grouped with the amendment. If so, I should like to hear what he has to say because I wish to respond to it.

§ Viscount Mills
Although I support in principle the amendment in the name of my noble friend Lord Lucas of Chilworth, it is similar to amendments which my noble friend Lord Crickhowell and I propose in Amendments Nos. 228ZA and 233B. I believe that the deletion of all reference to closed landfill sites, and hence the need to prepare remediation statements for all contaminated land sites, is not necessary. I consider that a broadening of the definition of "special site" would be adequate and would focus resources on those sites which are most contaminated and therefore most likely to cause pollution.
Like my noble friend, Lord Lucas of Chilworth, I had in mind such sites as closed chemical, steel or gas works which can cause equally as serious harm or pollution as closed landfill sites. The amendment in the name of my noble friend, Lord Lucas of Chilworth, and my amendment—

§ Lord Williams of Elvel
I am sorry to interrupt the noble Viscount. I hope that he will not feel that he has to go over the ground that the noble Lord, Lord Lucas, has already covered. I had hoped that he would speak to his Amendment No. 245AB.

§ Viscount Mills
I shall do so, of course. As I was saying, the amendment in the name of my noble friend Lord Lucas of Chilworth and my amendment allow such contaminated sites to be designated as special sites and treated accordingly. Perhaps I may ask the Minister this question. Will it not assist the local authorities to deal with those other contaminated land sites by broadening the definition of special sites as proposed?
I wish to speak also to Amendment No. 245AB. I believe that the amendment highlights a specific problem. I hope to ascertain what the Government consider might be done to solve it. There is an inherent difficulty with the enforcement procedures with respect to contaminated land. I refer to contaminated land sites which are owned by local authorities. Those include 1436 both closed landfill and land which is to be used for redevelopment. In certain situations local authorities are required to serve remediation notices upon themselves. That includes setting out actions and the timetable for those actions to be carried out.
I am sure that most local authorities are active and responsible and have all the technical skills and expertise to deal with those contaminated land sites. However, I believe that other small rural district councils may not be staffed to deal with the complex problems that arise from pollution emanating, for example, from 19th century lead mines. That is not a criticism; it is merely a fact.
In those cases, it may be of assistance to the local authorities for the new agency to play a role. At this point I should like to make what I believe is an important distinction between derelict land and contaminated land, because the experience required to deal with the two is not the same. By way of example I should like to refer to a coke works in Nottinghamshire. The land on which an old coke works was situated was purchased by a local council, which extracted the top few meters of sand and capped the surface to prevent the flushing of further contaminants into the groundwater. However, no action was taken to protect already polluted groundwater, which has now spread out from the area of the site itself and lies in land adjacent to the original site. In a situation such as that the site was treated as derelict but I suggest that it was rather more contaminated land.
There is, I believe, a risk that local authorities could find themselves in a position where, through no fault of their own, they are unable to initiate an adequate programme of inspection, identification and remediation of contaminated land sites. In such cases, giving default powers to the agency to help deal with the problem may be one, but I suggest not the only, solution. However, I shall be interested to hear the Minister's reply—whether he considers that it is a problem, whether the Government recognise it as such and how they intend to deal with similar problems.

§ Lord Williams of Elvel
I shall speak only to Amendment No. 245AB which is in the group and which the noble Viscount, Lord Mills, has just addressed. We are strongly opposed to the amendment. We believe that it is unnecessary because, despite what the noble Viscount implied, local authorities have a good record in the remediation of contaminated land. It is a threat to local democracy and we do not feel that an agency like the one outlined in the Bill should override local authorities and charge a levy in order to do so. A national quango, working through regional offices, is simply not the body to override local authorities. The agency is best placed to work with local government in determining appropriate standards. It is not, cannot and should not be placed to undertake the work itself. We are strongly opposed to the amendment which the noble Viscount has addressed.

§ Viscount Ullswater
All the amendments would affect the role of the environment agency and the 1437 Scottish environment protection agency in respect of the contaminated land provisions. Amendment No. 228, moved by my noble friend Lord Lucas of Chilworth, and the broadly equivalent Amendment No. 228ZA, moved by my noble friend Lord Mills, would have the effect of changing the definition of a "special site" such that it need not necessarily be a closed landfill site. Other amendments in the group are consequential on that.
The intention behind the creation of this category of special sites was to ensure that the particular skills and professional expertise of the agency could be brought directly to bear on the most serious closed landfill sites. The limiting of the category of special sites to closed landfills was not meant to imply either that closed landfills necessarily presented risks of serious harm or pollution or that other categories of site were by definition not serious. But closed landfill sites present a particular range of technical and engineering problems on which staff in the agency are likely to be well qualified by virtue of their responsibilities for the regulation of operational landfills.
So while the Government are willing to consider the question of expanding the range of sites which could potentially be designated as special sites, we would wish to have a clear idea of why the agency would be better qualified to regulate those other sites than would the local authorities. At present, the case has not been adequately made, and we would wish to retain the restriction of designation as special sites to landfills.
Amendment No. 245AB, moved by my noble friend Lord Mills, would seek to expand the powers of the agency in altogether more sweeping ways by enabling it to take over the regulatory functions of individual local authorities if it felt that they were not being properly exercised. Local authorities already have powers under the statutory nuisance provisions under Part III of the Environmental Protection Act to deal with the problems posed by contaminated land and many of them have used those powers extensively. We believe that these new provisions, which provide specific definitions of targeted procedures, will do much to improve the consistency with which local authorities deal with contaminated land. We strongly believe that these regulatory functions should remain with local government—I have to agree with the noble Lord, Lord Williams, on that point. Contaminated land is essentially a local issue, and these powers tie in closely with other local authority functions, in particular those concerning planning and development control.
In any event, I remind the Committee that local authorities will have the assistance of detailed guidance from the agency and the Secretary of State in carrying out their functions. I do not believe that there is any justification for including powers of the kind suggested in the amendment, which would allow the agency to take over the functions and the money of an elected 1438 local authority. I hope that I have perhaps said enough to persuade both noble Lords to withdraw their amendments.

§ Lord Lucas of Chilworth
As for the last amendment, I shall of course ask leave of the Committee to withdraw it. Again, there is nothing that I can do at this stage.
I am not persuaded at all by the Government's response to this amendment. I shall have to read very carefully what my noble friend said when he talked about the various categories that could then engage the special expertise and skills of the agency. We discussed this matter days ago when we talked about who would form the agency, what kind of people would be on the board of the agency and on the advisory boards. They should have wide enough skills and expertise to deal with all the problems that arise. It really does not matter whether you put it under the hat labelled "contaminated", "special" or "landfill". Those all present in their different ways hazards to the environment and to people. That is what we are concerned with—not a specialisation, one against another demanding special provisions. I am very disappointed that my noble friend cannot understand that simplicity in a Bill as complex as this one is a very desirable attribute which, certainly in Clause 34, we seem to be letting slip by.

§ Viscount Ullswater
Before my noble friend decides what to do about his amendment, it might just be useful if I pointed out to him the different categories, because I do not believe that he has really taken in the significance of my answer. We believe that there is a duty for the local authorities to look after the closed landfill sites and, when we come to remedial statements on the special sites, that those should be made by the agency since it has a particular expertise and the skill. That is the difference.

§ Lord Lucas of Chilworth
Although I am most grateful, I do not think that I did misunderstand. However, perhaps my noble friend will allow me to study carefully what our exchange has been all about. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 228ZA not moved.]

§ Lord Northbourne
moved Amendment No. 228ZB: Page 46, line 10, at beginning insert: ("(a) Subject to the provisions of paragraph (b) below,"). The noble Lord said: In moving this amendment I should also like to speak to Amendment No. 228BB. These amendments are about the definition of "harm". This is a serious issue, although my amendments are probing amendments. The definition of "harm" in the Bill seems to me to be highly unsatisfactory, because it says: 'Harm' means harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property". I think we are all fairly clear what we want to say: the difficulty is that I do not think that form of words says it. We have already debated the question on an earlier 1439 amendment of mine—the question of the seriousness of the harm. That is not what I am talking about here. I am talking here about the kind of harm—or, more precisely, the kind of personal thing to which that harm is done.
As drafted, this clause would include within the definition of "harm" every kind of harm to every kind of living organism or ecosystem. It would therefore designate as "harm" all activities such as pest control—rats and slugs, after all, are livingorganisms—dredging rivers and lakes, gardening, agriculture, forestry, road construction, cleaning up of pollution and many other activities. Clearly, that is not what the Government mean. The problem is that it is quite difficult to designate and to define the nasty things, such as pests and diseases, that we want to be harmed and the ones which we love and do not want to be harmed. It has to be admitted that the problem is complicated by the fact that one man's pest is sometimes another man's pet.
I acknowledge that my amendment is imperfect, but I wonder whether the Minister would be prepared to take the problem away and come back with a much better solution. I beg to move.

§ Viscount Ullswater
Amendments Nos. 228ZB and 228BB of the noble Lord, Lord Northbourne, seek to recognise that there are some living organisms which are themselves harmful—for example agricultural pests. It would indeed be perverse if these contaminated land powers prevented the appropriate use of pesticides.
These amendments are closely related to those dealing with the wider questions of the overall definitions of "harm" and of "contaminated land" and, as I indicated in response to those amendments, the Government already intend to bring forward their own amendments on these at a later stage. So, while I appreciate the intention behind the noble Lord's amendments, I would not wish to accept them now. Perhaps he will be good enough to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 228A and 228B not moved.]

§ Baroness Hilton of Eggardon
moved Amendment No. 228BA: Page 46, line 12, after ("includes") insert ("offence to any of his senses or"). The noble Baroness said: I rise to move this amendment and speak to Amendment No. 238ZZA, which is grouped with it. Amendment No. 228BA is intended as a probing amendment, to ask the Minister why the definition is being changed from that in the Environmental Protection Act. In that Act,the definition of "harm" is: Harm to the health of living organisms", and, in the case of man, includes offence to any of his senses or harm to his property.
The definition of "harm" in this Bill is almost identical but excludes any reference to any of man's senses. The reason for this anomaly is not immediately obvious. At this stage, therefore, the amendment is directed at asking the Minister to explain why there is a 1440 different definition of "harm" in this particular Bill, and whether it should include offences such as smell or odour which would offend human beings.
Amendment No. 238ZZA is an attempt to suggest that the future use of contaminated land is an important factor when deciding the extent to which it should be remediated. There is obviously a difference between land which is intended for use purely as a public car park and land on which it is intended to build houses, or to have a children's playground or a school. The intention therefore is to include in this clause and any consideration of the extent to which the land should be improved or pollution eradicated, the intended future use of the land. I beg to move.

§ Lord Renton
I believe that the amendment may be open to so many different kinds of interpretation that it would cause great difficulty when it came to be considered by the courts or applied in any way.

§ Lord Northbourne
I rise briefly to speak on Amendment No. 238B, which is grouped with Amendment No. 238A. It says more or less the same thing as the second amendment of the noble Baroness. The standard of remediation should be limited to the standard of "suitable for use". The arguments that guidance will limit it are not satisfactory. There seems to me to be no reason why a "suitable for use" approach should not be spelt out in the legislation.

§ Viscount Ullswater
Amendment No. 228BA, moved by the noble Baroness, Lady Hilton of Eggardon, seeks to extend the definition of harm, and thereby of contaminated land, to include references to offences to man's senses. Amendment No. 372EB would also exclude premises which fell within that wider definition of contaminated land from all of the various categories of statutory nuisance set out in Part III of the Environmental Protection Act 1990. As presently provided, only those categories most directly relevant to contaminated land are excluded.
The Government quite deliberately omitted offences to man's senses from the list of possible harm which would define land as being contaminated. For example, we do not consider that land should be considered as contaminated on the basis of smells and odours which are not themselves harmful to health or the wider environment. The statutory nuisance powers will potentially still be available to deal as necessary with those other problems. I believe that that would meet the problem outlined by my noble friend Lord Renton. The Government therefore would not wish to accept those amendments.
Amendment No. 238ZZA, moved by the noble Baroness, Lady Hilton, would increase the possible requirements of a remediation notice by making it a positive requirement for an enforcing authority to consider potential uses of the land. By contrast, Amendment No. 238B, moved by the noble Lord, Lord Northbourne, would restrict the degree of any remediation required to that justified to make the land suitable for its actual or likely use. It is intended that the guidance on remediation standards which the agency 1441 would issue to local authorities should be informed by the "suitable for use" approach. But two important clarifications are needed.
First, any remediation notice also needs to consider those environmental effects which are not dependent on the use of the immediate site. Examples here could include any potential pollution of groundwater and, indeed, effects on health or property in relation to the use to which other sites nearby are being put. Amendment No. 238B would not allow those environmental issues to be addressed, and therefore I would not wish to accept it.
Secondly, it is not the intended role of this proposed regulatory system to make land fit for all of its potential uses. The powers have been quite deliberately structured around risks to health or the environment which are currently being caused, or are likely to be caused. In any event, planning authorities, in considering whether to grant permission for a new use of land, have powers to impose conditions to ensure that the development intended will not put future users or occupiers at risk if necessary by requiring improvements to the condition of the land before the development can be carried out. My department published a planning policy guidance note, PPG23, on Planning and Pollution Control in July of last year to advise local authorities on that question.
I hope I have said enough to convince the noble Baroness that both of the amendments to which she has spoken are not required and that she will be good enough to withdraw them.

§ Baroness Hilton of Eggardon
I am not wholly satisfied as to odours. It seems to me that if you are to build a school or some other place to which the public has access, rights under public nuisance law are not sufficient. Once the land has been developed in some way, if it continues to smell disagreeable it is too late to do something about it. I do not wish to press the point at this moment but I reserve the right to come back to it at Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 228BB not moved.]

§ Baroness Hilton of Eggardon
moved Amendment No. 228BC: Page 46, line 13, at end insert: ("() "Assessment" means the doing of anything for the purpose of assessing the condition of land which appears to the local authority to be contaminated."). The noble Baroness said: I rise to move Amendment No. 228BC and speak also to Amendments Nos. 237AA and 239E which are grouped with it. These amendments are concerned with the assessment of land which may be contaminated. The Bill requires local authorities to inspect areas within their boundaries and identify contaminated land, closed landfill sites and closed landfill sites that may be candidates for designation as special sites.
If a local authority identifies contaminated land it must serve a remediation notice. However, in its present form the Bill suggests that a remediation notice may also be used to require assessment of the condition of contaminated land, which in a way makes the 1442 assumption that it is known in advance that the land is contaminated. It does not allow for the possibility of assessing land which the local authority does not know to be contaminated. The Bill does not provide for the assessment of land that has been suspected of being contaminated to see whether it is contaminated. The amendments are intended to introduce a more logical approach to land that may be contaminated but about which people are not sure.
In those circumstances, the amendments will allow the local authority to serve an assessment notice that requires the owners or occupiers to determine whether the land is contaminated. The intention is to amend the Bill in a helpful way and allow local authorities to identify contaminated land. I beg to move.

§ Lord Northbourne
I should like to speak briefly to Amendments Nos. 228C and 239C, both of which deal with the detail of remediation notices. Amendment No. 228C proposes that the authority should inspect land at the expense of the landowner. In my view, inspections should not be carried out at the landowner's expense. Local authorities ought to be able to back up their convictions at the initial stages with their own resources; otherwise, there is no reason why they may not carry out what may be called fishing expeditions at the expense of landowners. It would seem to me that to give a blank cheque of this kind to local authorities is entirely unjustified.
As far as Amendment No. 239C is concerned, it is felt that, where remediation has been carried out and costs incurred by virtue of a mistaken assumption or assessment that land is contaminated, those costs should be recoverable from the local authority.

§ Lord Carmichael of Kelvingrove
I should like to speak to Amendment No. 233. I do not believe I can agree with what the noble Lord has just said. That leads on to Amendment No. 233, in which we suggest that "on a regular basis" should be substituted for the words "from time to time", which in these circumstances strike us a totally meaningless. We suggest that the requirement for local authorities to inspect an area from time to time in order to identify contaminated land and landfill sites is far too weak.
Local authorities must have a statutory duty to inspect their area on a regular basis and only a systematic programme of inspection will identify all the relevant sites. It is not in the public interest for site identification to depend on local authorities making inspections on such a vague basis. If an incident involved contamination which spread disease or even a rash among children or people going across the land, a report which was made only "from time to time" could have been produced a year before, 18 months before or two years before. It just would not stand up in court. Whatever action the Minister takes on the other amendments, this amendment is an obvious one to accept. He may not like the wording but he must accept that the sentiment and the reasoning behind the amendment are quite clear and strong.

§ Lord Gisborough
Amendment No. 228C is grouped with Amendment No. 237AA, which addresses the 1443 situation where the person on whom the remediation notice is served wishes to suggest an alternative method of remediation. It allows the local authority and that person to consult in order to pursue such alternatives if it is practicable to do so. I support that amendment.

§ Viscount Ullswater
Amendments Nos. 228C and 239C, introduced by the noble Lord, Lord Northbourne, seek to ensure that the costs of any assessment work fall on the enforcing authority and not on the person receiving a remediation notice. Amendment No. 228C would amend the definition of remediation so that any assessment works were to be undertaken at the cost of the enforcing authority. Amendment No. 239C would, as an alternative approach to the same issue, enable the recipient of a notice to recover his reasonable costs from the enforcing authority for any required steps by way of assessment of the condition of the land if that assessment indicated that no further remediation steps needed to be undertaken.

§ Lord Northbourne
The noble Viscount has misunderstood the intention of the second amendment. It seeks to ensure that, if remediation was undertaken and it was subsequently found that it had been unnecessary, the costs could be recovered.

§ Viscount Ullswater
I accept the noble Lord's correction of what I said and I understand what he is addressing. I hope that my remarks will apply equally to what he has just said.
It is perhaps arguable that some provision of this kind is necessary to protect industry and landowners from predatory remediation notices based on little real evidence of contamination, but the existing provisions in the Bill and the basic principles of administrative law do not really support that line of argument. An enforcing authority must act reasonably in determining that any land appears to be contaminated. If it were to serve a remediation notice on scant or little evidence that the land was contaminated, or with disregard for the guidance as to the identification of contaminated land, the notice could be subject to appeal and the authority's decision could be subject to review. However, it would be reasonable for the enforcing authority, once it is satisfied that there appears to be harm or water pollution caused by contamination, to require the recipient of a notice to assess the full extent of the problems on the site and subsequently to take the appropriate actions to deal with them.
The amendments in the name of the noble Baroness, Lady Hilton—Amendments Nos. 228BC, 237AA and 239E—would, however, permit a local authority to serve a specific assessment notice on land which appeared likely to be contaminated. In the Government's view, that would open up the system to precisely the kind of problems which the amendments in the name of the noble Lord, Lord Northbourne, sought to prevent. The noble Lord talked about a fishing expedition. Therefore, I would ask the Committee not to accept those amendments.
Amendment No. 233, in the name of the noble Lord, Lord Carmichael of Kelvingrove, seeks to change the basis of the inspection duty of local authorities to be on 1444 a regular basis rather than from time to time as currently provided. I would have to agree that in modern-day language the formulation "from time to time" might sound old fashioned and so I can sympathise with the sentiment behind the amendment. However, the existing phrasing has a particular legal intention and effect which I hope that I can persuade the noble Lord is not met by his amendment.
Different local authority areas will inevitably face different levels of problems associated with contaminated land. That may result from different patterns of development and land use, and from technical considerations such as the underlying geology of the area. In addition, the problems associated with the individual sites will arise or develop at different rates. The local authority may need to inspect on a frequent basis, but not necessarily at regular intervals, a site which it believes might start emitting methane gas. But most local authorities will not have contaminated land and will not present potential problems as a result of past land uses, and so long as the current use of those sites or others nearby does not suggest that new contamination might be occurring, the local authority would discharge its duty by inspecting at appropriate frequency, whether regularly spaced or not.
Both of those factors suggest that there should not be a rigid approach to the timing of the duty to inspect for contaminated land. Requiring inspections on a regular basis, as is suggested in the amendment, could lead both to unnecessary costs for local authorities and, in the case of some sites, to inspections not being carried out sufficiently frequently.
The formulation already in Clause 54 would permit a proper level of flexibility to allow both regularly spaced inspections (where that is considered appropriate) and frequent but irregularly spaced inspections for other cases. As I dared to suggest, "from time to time" is a time-honoured legislative formula which I should not wish to disturb without good reason. I am sure that noble Lords would agree with me and, on that basis, I. wonder whether the noble Baroness would care to withdraw her amendment.

§ Baroness Hilton of Eggardon
I am sorry that the Minister thinks that local authorities would indulge in fishing expeditions. Clearly, they might be activated by a desire to be sure that there was no pollution on old industrial sites, and it seems appropriate that they should have the powers to investigate. However, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 228C and 229 not moved.]

§ Lord Jenkin of Roding
moved Amendment No. 229A: Page 47, line 32, leave out from ("owner") to end of line 46 and insert: ("(a) ("in relation to any land in England and Wales, means a person who, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let, but does not include a mortgagee not in physical possession of the land or one who is in possession of the land only for the purpose of preserving, 1445 protecting, repairing, securing or selling it, or investigating the condition of it, and otherwise performs no operational function in respect of it; nor does it include a trustee who has no beneficial interest in the land; (b) in relation to any land in Scotland, means the person for the time being who is entitled to receive, or who would, if the land were let, be entitled to receive the rents of the land, and includes a factor, guardian or curator and in the case of public or municipal land, includes the persons to whom the management of the land is entrusted, but does not include a person who holds a security over the land (whether heritable or otherwise) not in physical possession or who exercises it rights as security holder only for the purpose of preserving, protecting, repairing, securing or selling it, or investigating the condition of it, and otherwise performs no operational function in respect of it; nor does it include a bare trustee; (c) in the Environmental Protection Act 1990, "owner" shall have the same meaning as in sub-paragraph (a) above and the definition of "owner" in section 81A(9) of that Act shall be repealed.").
The noble Lord said: In moving this amendment, I understand that we are considering also Amendments Nos. 238AA, 238D and 238E. My amendment is concerned with the potential liability of lenders of money (whether or not on the security of land) to a landowner whose land may well be contaminated.
When the Government published their document A Framework for Contaminated Land they stated quite clearly: the act of lending, whether secured or not, does not of itself open the lender to liability for meeting the costs of remedying any damage caused by the actions or omissions of the borrower". When the banks and building societies, which are the main lenders in this country, read that, they were reassured. However, when they came to read the definition of "owner" in this clause, it seemed to arouse a good deal of anxiety. Two problems need to be addressed. First, under the present drafting, lenders could be held liable for environmental damage where circumstances forced them into possession of a mortgaged property. It is not unknown for someone whose business is in great difficulties to abandon the premises and drop the keys through the building society's letter box.
It could also happen that an owner abandons a site and the bank or building society, given that it is not getting any payment, needs to take some action to make the premises secure. We should bear in mind that we are talking not necessarily about large and potentially extremely damaging sites, but about small businesses, such as dry cleaners, printers, petrol stations, farms or suppliers of agricultural chemicals—virtually any company that happens in the course of its business to handle chemicals that are hazardous to the environment. Many such businesses rely upon borrowing from banks, or in some cases building societies, to be able to carry on the businesses.
In the circumstances I have described, that could turn the lender into an owner, and therefore liable to all the procedures contained in the Bill. He could have a remediation notice served upon him. He could then be under an obligation to take the action necessary to clean up the site. If he does not, he can be liable to fines, and substantial costs if the local authority itself does the work.
1446 What is a bank or building society to do in such circumstances with that risk hanging over its head? The right answer might be to walk away from the security, have nothing to do with it, and abandon it with no owner and no occupier. I cannot believe that that is what my right honourable friends intend by that definition of "owner" in the Bill.
There is a second circumstance which needs to be addressed—that is, under the Bill as drafted, trustees who hold just the bare legal title to the land, with no beneficial interest in it, may be caught by the definition of "owner", and so held personally liable for the consequences of the contamination by the owner. The suggestion in the amendment is that they should be liable only to the extent of any trust assets they control.
I have been rash enough to include in the amendment an amendment to the law of Scotland. I hasten to say that I know relatively little about the law of Scotland, although I was born in Edinburgh. I am advised that the position should be the same as in England and Wales, and that the drafting of the amendment achieves that. That is not the case at present. There is an exemption for the mortgagee in possession, but not for what I understand in Scots law is called a heritable creditor, which I understand to be the equivalent.
I recognise that my amendments may not be in the right form, but they raise an important issue. I hope that my noble friend will be able to offer some comfort to those who are genuinely anxious that they will find themselves saddled with a liability. The result will be that they will be infinitely less willing to lend. Businesses will be unable to raise the finance to keep going because of the potential liability hanging over the heads of the lenders. It is a serious point. I hope that my noble friend will be able to offer us some comfort. I beg to move.

§ Lord Boardman
I support my noble friend's amendment. I shall say just two things. First, the proposals put forward originally, as my noble friend said, in A Framework for Contaminated Land made it clear that lenders would not be faced with the liability that the Bill now imposes upon them. That is unfortunate.
My second point is that if the Government want people to lend money on land which could possibly become contaminated, by this clause they will prevent that wish being realised. Lenders will not lend money on land that may be polluted—under the Bill they would be required to monitor it to ensure that it was not being polluted for the whole time the security was held by them—because of the danger that they might be faced ultimately with a large bill. That would be fearful, so I hope that if the amendment is not accepted my noble friend the Minister will at a later stage introduce an amendment to reduce the real threat to those who would otherwise hope to borrow effectively for such investments.

§ The Earl of Lytton
Perhaps it would be helpful to the Committee if I now spoke to my Amendments Nos. 245AZA and 245AZB, which relate to insolvency practitioners. It is part and parcel of the same issue and it may be appropriate for the Minister to deal with it 1447 now. Often insolvency practitioners and other receivers deal with land that is subject to contamination. I remember some time ago being instructed to value a piece of land that had been used for scrap metal processing. I do not know what they did with the sump oil and so forth—perhaps they just tipped it on the ground. That is what it looked like!
It would be unreasonable for people acting as insolvency practitioners, whether appointed as receivers or in some other capacity, to assume personal liability under Part II of the Environmental Protection Act 1990, unless they were responsible for causing the harm, in which case they must accept liability.
Clause 54, which is to be inserted in the 1990 Act as Section 78P(3), seeks to limit the liability. However, the present wording refers only to insolvency practitioners and ignores other receivers. That is inequitable. I have spoken to representatives of the Royal Institution of Chartered Surveyors, some of whose members act in such a capacity. They are most anxious about the provision. Perhaps the Minister will consider the matter.
As regards lenders, if the situation comes adrift and the loan is called in they may well appoint a receiver. He represents the lender's interests in trying to realise the asset value. The purpose of my amendments is to extend to all classes of receiver the protection that is already built into the Bill.

§ Baroness Hamwee
I speak to Amendment No. 238AA, which stands in the name of my noble friend Lord Beaumont and myself. It is not such a macro amendment as that moved by the noble Lord, Lord Jenkin of Roding. Paragraph (4) at page 50 refers to the consent required by the person in occupation of land in the circumstances set out in the provision. The amendment addresses the point, although probably not adequately. It deals with what happens if consent is not given.

§ Lord Annaly
I speak to Amendment No. 238D, which is a probing amendment. Its object is to obtain a commitment from my noble friend the Minister that the principles by which liability can be transferred are stated in the Bill.
An efficient market in contaminated land, which encourages investment in remediation, depends on a clear and equitable division of responsibility for the land following sale and purchase. It is important for business organisations to have reasonable clarity as to the extent of their liabilities and not to be unfairly haunted by the past if they are to trade and borrow on an equitable basis. The right to transfer liability is a vital condition if the market for contaminated land is to operate effectively. The Government have made provision for that in the new Section 78E(3) but the conditions under which transfer takes place, and how liability under this part can be transferred, is not clearly stated.
This is a complex area of private and public law and uncertainty may mean that the provision does not have its intended effect. I am looking to my noble friend the Minister for an assurance that the principles by which liability is transferred are stated expressly in the Bill and not left solely to guidance.

§ Baroness Hilton of Eggardon
I am speaking to Amendments Nos. 242B and 242C, which are in this group. They are probing amendments to ask the Minister what is meant by "hardship" when the authority is using its discretion in deciding what costs to recover. The local authority associations are extremely anxious about the provisions of Clause 54 which relate to hardship. Quite clearly they do not want the Bill to spell out a polluter's charter, such that responsibilities can be evaded, and some of the earlier amendments in the group seemed to suggest that people might seeks ways in which to evade liability for responsibility for pollution. But, on the other hand, local authorities recognise that an ability to exercise their discretion in the recovery of costs is an important local authority responsibility, and one which should be used only after considering a number of circumstances, of which hardship might be one factor.
Therefore, we are asking the Minister to outline what is intended by "hardship" and in what circumstances local authorities should be allowed to fund the clean-up of pollution.

§ Viscount Ullswater
These amendments all seek to make particular changes to some of the basic provisions concerning liabilities in respect of contaminated land.
Amendment No. 229A, moved by my noble friend Lord Jenkin of Roding, would change the definitions of "owner" used in the provisions for England and Wales and for Scotland, particularly as it could apply to financial institutions.
Following our overall review of policy on contaminated land and liabilities, and in particular the many responses we received to our consultation paper Paying for our Past, we have sought to clarify the potential liabilities of financial institutions. The Government are committed to the view that banks and others should not be treated as "deep pockets" to pay for the restoration of environmental damage for which they bear no real responsibility. The Government accept that any attempt to treat financial institutions in that way would serve only to threaten the supply of normal financial services to many sectors of the economy. In particular, the Government believe that the simple act of lending money should not of itself be considered as causing, or indeed knowingly permitting, the contamination of land which might arise as the result of the activities of those borrowing the money.
The issue of secured lending raises complex questions, however, as reflected in this amendment. In some cases, a lender could be acquiring a net liability if he took possession of contaminated land held as security, if the costs of necessary remediation exceeded the land's subsequent sale value. The Government consider that the lender should retain the right to walk away from his security in those cases, effectively limiting his financial exposure to the potential loss of the value of his loan.
The Government have noted concerns from the banking community, however, that in some cases the decision over whether to take possession of mortgaged property is effectively removed from the hands of the 1449 mortgagee, for example if the mortgagor hands over the keys to the property. It has been suggested that in those cases, the mortgagee could find himself potentially liable for contamination on the site without having any opportunity to exercise his right to walk away, as my noble friend indicated in his remarks. The Government are willing to consider this question further, and to examine whether changes to the definition of "owner" are justified to deal with the possibility of mortgagees finding themselves involuntarily in possession of land.
However, the Government do not accept the formulation set out in this amendment as being appropriate. It would provide an exemption from liability for a mortgagee in possession of a site, so long as he performs no operational function on the site and is in possession only for the ultimate purpose of selling it. That would serve in many cases to prevent prompt and necessary action to deal with environmental problems. It might also do little to protect the commercial position of the mortgagees, as they would still face the task of attempting to sell contaminated sites which would potentially be open to early action by the regulators requiring works to deal with the contamination.
This amendment raises the additional question of whether trustees with no beneficial interest in land should also be exempt from any liabilities. The Government would wish to consider that question further, particularly as the creation of an exemption of this kind could, if implemented in an inappropriate manner, create a possible route for unjustified evasions of liability.
Amendment No. 238D, in the name of my noble friend Lord Peyton of Yeovil, would amend the existing provision concerning the transfer of liabilities from the person who caused or knowingly permitted the contamination to the current owner or occupier of the land. The Government are keen to ensure that the polluter does not, in effect, pay twice. We consider that it would be inequitable for someone to have to accept a low sale price for land which had been contaminated, and then have to pay for the costs of action to remediate it. We therefore wish to provide that, where the original polluter has legally transferred the burdens and responsibilities associated with his property, including those relating to contamination, the regulatory system should also respect that transfer.
I am grateful for my noble friend's amendment and for all the comments and suggestions that we have received from elsewhere as regards how we might shape the statutory provisions necessary to bring about our policy intention. If the noble Lord, Lord Annaly, who moved the amendment would agree to withdraw it, the Government would wish to consider the question further and to bring back their own amendment at a later stage.
Amendments Nos. 238AA and 238E tabled in the name of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Beaumont of Whitley, seek to change the provisions which would apply in any case where the current occupier of contaminated land, who was not himself the appropriate person to receive a remediation notice, refused consent for the appropriate person to enter on to his land to carry out remediation. The 1450 amendments would provide for a court to issue a warrant authorising entry, with or without conditions, and order the appropriate person to pay such compensation as it sees fit.
The Government believe that it is essential that some mechanism exists to ensure that remediation can take place even if the current occupier of the land does not wish to give his consent to entry on the land. However, we are not attracted to the system of warrants proposed here, which would appear to be unnecessarily cumbersome.
In looking again at our own provisions, which provide that an occupier who refuses consent in those circumstances would himself become an appropriate person to receive a remediation notice, we note possible concerns that there is no explicit recognition that in some cases there may be reasonable grounds for consent to be withheld; nor is there any overt provision for any compensation to be payable. If the existing amendments are withdrawn, we would wish to re-examine those questions.
Amendments Nos. 242B and 242C would apply to the circumstances where an enforcing authority might be seeking to recover some, or all, of its reasonable costs incurred in carrying out itself the steps specified in a remediation notice which have not been carried out by the original recipient. The first of those amendments would make explicit that that is a discretionary power to recover costs, and that there is no obligation on the enforcing authority to do so. However, that sense is already present, as the existing provisions refer to an "entitlement" to recover costs and not a duty.
The second of those amendments would have the effect of removing the duty for an enforcing authority to consider questions of hardship which might arise from its recovery of costs. The Government did not intend that hardship should be the only ground on which enforcing authorities could decide not to seek to recover. their costs. However, we believe that enforcing authorities should be required to consider at least that question. I would therefore ask noble Lords not to accept the amendments.
The noble Earl, Lord Lytton, indicated that he would like the Committee to consider Amendments Nos. 245AZA and 245AZB which relate to the provisions to limit the potential personal liability of any insolvency practitioner. The issue of the liability of such practitioners was raised during our policy review. It was felt by many to be important that insolvency practitioners, and others acting in a similar capacity—such as the receivers of land referred to in the noble Lord's first amendment—should not be held personally liable for the costs of dealing with contaminated land. This is an area that again the Government would like to consider very carefully and on which they also intend to bring forward their own amendments at a later stage. It will probably be convenient to leave it at that. Having said what I hope is of some comfort to my noble friend Lord Jenkin, he may consider withdrawing the amendment.

§ Lord Jenkin of Roding
I would only say to my noble friend that he has undertaken to do an immense 1451 amount of reconsideration with this group of amendments. I assure him that I speak on behalf of all Members of the Committee who took part in this short debate when I say that we are very much obliged to him. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 230 and 231 not moved.]
[Amendment No. 232 had been withdrawn from the Marshalled List.]
[Amendments Nos. 233 to 237Z4 not moved.]

§ Lord Northbourne
moved Amendment No. 237A: Page 49, line 40, at end insert ("() The appropriate Agency or the local authority may consult with the owner of the land in the preparation of any remediation statement and also regarding any alternative action which that person might take to remedy the contamination on the land.").
The noble Lord said: In moving this amendment I wish to speak also to Amendment No. 237B. These are two further amendments about the procedures for remediation. The first relates to the fact that the Bill as drafted does not seem to make any provision for consultation between authorities and landowners so that agreement can be reached about the most useful and appropriate method of cleaning up. It merely provides for a remediation notice to be served, and when it has been served the Bill does not seem to provide any machinery for variation of the terms as a result of consultation between the parties. This amendment seeks to correct that position.
I regard Amendment No. 237B as important. It provides the local authority with a power rather than a duty to serve a remediation notice. As regards the Bill as currently drafted, where local authorities have identified any contaminated land in their area, they have a statutory duty to serve a remediation notice. They have no discretion to decide whether to serve a remediation notice. As a result local authorities will not be able to give priority to the most affected areas but will be obliged to deal with all cases of land deemed to be contaminated. However slight the degree of contamination is irrelevant. This is neither a sensible nor a practical approach and will put local authorities under unjustified strain, and it directly contradicts the Government's policy on priorities as set out in the framework for contaminated land. I beg to move.

§ Viscount Ullswater
Amendment No. 237A, moved by the noble Lord, Lord Northbourne, would give an enforcing authority the power to consult with the owner of a closed landfill site when preparing a remediation statement. It is certainly the Government's intention that an enforcing authority should, as a matter of best practice, consult with those concerned both when preparing a remediation statement for a closed landfill site or, indeed, when preparing a remediation notice for any contaminated site. It is expected that the agencies' guidance to local authorities will make this clear.
This consultation could usefully serve to promote better mutual understanding between the regulators and those being regulated and could provide an opportunity to encourage voluntary action to deal with 1452 contamination. However, the Government are not convinced that there is a need to specify on the face of the Bill that the enforcing authorities have a power to consult for this purpose.
Amendment No. 237B, spoken to by the noble Lord, Lord Northbourne, would replace the existing duty on enforcing authorities to serve a remediation notice for any contaminated land with a discretionary power to do so. The Government would be extremely reluctant to soften this aspect of the regulatory regime, particularly if the definition of contaminated land is to be amended to bring it into better alignment with our "suitable for use" policy. A softening of the duty to serve a notice would result in there being a discretion for enforcing authorities to allow land to remain in a condition in which it was unsuitable for use, and this could not be supported.
A further issue is that we wish to avoid the possibility that a local authority might hold back from serving a remediation notice if the potentially liable site owner appeared to have few resources. It would then serve the notice on any "deeper pocket" who subsequently became owner of the site, unaware that the local authority was lying in a regulatory ambush. That would clearly be unacceptable, and the Government also wish to resist that amendment.
Having said that, I hope that the noble Lord will feel able to withdraw his amendment.

§ Lord Northbourne
With regard to Amendment No. 237B I shall await the noble Viscount's new definition of contaminated land. With that comment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 237AA not moved.]

The Deputy Chairman of Committees (The Viscount of Oxfuird)
I must advise the Committee of a printing error in Amendment No. 237AB on the Marshalled List. It should read "line 5" and not "line 4". In addition, the use of italics is incorrect.

§ Lord Peyton of Yeovil
moved Amendment No. 237AB: Page 50, line 5, at end insert ("and has sought the advice of the appropriate Agency in accordance with section 78B(2), in particular as to whether the contaminated land poses an unacceptable actual or potential risk to health or the environment such that immediate remediation is required.").
The noble Lord said: In tabling Amendments No. 237AB and 238ZZB I am animated by the most respectable of purposes. First, I wish to understand the mind of the Government and, secondly, I wish to help them to achieve their purpose.
I should be grateful for my noble friend's confirmation that, since the Government themselves—for reasons which I understand perfectly—are not willing or able to clean up all contaminated land (and I avoid the term "remediation" even though I believe it finds favour with the noble Lord, Lord Williams of Elvel, because I do not like it), they wish to encourage potential improvers to do it for them. That being the case, I take it that they wish to ensure that land is 1453 saleable to those who wish to use it for a certain purpose and that it is made fit for that purpose. I hope that I have construed the Government's mind accurately.
I believe that we all agree that there ought to be a duty to act on all contaminated sites where there is an unacceptable risk to health or the environment. There are a great many contaminated sites which do not at present constitute such a menace. The cost of coping with all sites at once, regardless of risk, would be intolerable. Therefore, I hope that Amendment No. 237AB, which seeks to place some restriction on the freedom of local authorities immediately to identify as potentially dangerous any site as they see fit, will be helpful to the Government.
The second amendment suggests that regard should be had to the intended use of the land. There must be a vital distinction as to the use to which contaminated land is to be put. If it is be used for certain purposes then the land will have to be cleaned. For other purposes such a high standard of cleansing is not necessary. As I said in my opening remarks, it must be the Government's intention to promote a reasonably free and mobile market in contaminated land so that people who are willing to improve it have a chance to buy it on reasonable terms. That is all I need to say. However, I hope that my noble friend will be extremely grateful to me for the understanding that I have shown for his intentions and for the way that I seek to help him forward.

§ Viscount Ullswater
I hope that my noble friend will be equally grateful for my reply.
Essentially, the amendments go back to the discussions we had on earlier amendments both in terms of the overall definition of contaminated land and the importance of the use of the land in determining any remediation requirements. As I stated earlier, it is the Government's intention that remediation should be based on the suitable for use approach and that the definition of contaminated land should reflect the policy intentions we expressed in our document, Framework for Contaminated Land. The issue of whether any land in fact presents unacceptable actual or potential harm should be covered in the revised definitions which I have already suggested that the Government will introduce at a later stage. I also suggested earlier that any remediation notice also needs to consider those environmental effects which are not dependent on the use of the immediate site, in particular water pollution and the effects on neighbouring sites.
Perhaps on that basis I may ask my noble friend to withdraw his amendment.

§ Lord Peyton of Yeovil
I wish to consider carefully what my noble friend said, rather quickly. I am not all that quick at picking up the points at this hour of the night. However, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 237B to 238ZZB not moved.]

§ Lord Northbourne
moved Amendment No. 238ZA: Page 50, line 29, at end insert: 1454 ("() A remediation notice shall not be served where the state of scientific and technical knowledge at the time when the substances were permitted or caused to be present in or on the land was not such that a person who caused or permitted them to be present in or on the land could have reasonably foreseen that their presence there could result in the contamination of that land.").
The noble Lord said: Amendment No. 238ZA refers to what might be called the state-of-the-art defence. I know from reading the Framework document that the Government are not well disposed to this concept.
The argument is that the liability for remediation must be limited by the liability which the owner of the land or the polluter undertook when the pollution took place. If at the time Brussels had not invented the particular contaminant to which the remediation notice relates, how could the person concerned have known that he was doing a wrong thing when he allowed that contaminant or substance to be deposited on the land?
It is worth noting that in its report on the European Green Paper on the use of civil liability for remedying environmental damage your Lordships' Select Committee on the European Communities argued that there should be a state-of-the-art defence as a matter of equity and people in the companies should be encouraged to make the best efforts to minimise pollution. As drafted, the Bill clearly is in conflict with the principles of equity and natural justice.
In the document Framework for Contaminated Land the Government point out that the common law rule in Cambridge Water Company v. Eastern Counties Leather plc established that a plaintiff must establish that the specific damage complained of was reasonably foreseeable at the time of the polluting act or emission.
I wish to ask the noble Viscount two questions. First, does the rule established in Cambridge Water Company v. Eastern Counties Leather plc apply to remediation notices served by a local authority or by the agency? Secondly, what in practice is the difference between the state-of-the-art defence which is proposed in the amendment and the defence that pollution was not reasonably foreseeable arising out of the common law rule established in Cambridge Water Company v. Eastern Counties Leather plc? I beg to move.

§ Lord Jenkin of Roding
This is as good a peg as any on which to hang a question to my noble friend about the meaning of the words "permitting or knowingly permitting". In his reply to me a few moments ago, my noble friend used the phrase "knowingly permitting". I think it is important for us to give consideration to what is meant by it, because it is a fairly loose term. Although, as I understand it, there is no substantive case law dealing directly with lender liability in the context of "knowingly permitting", a number of legal commentators have identified that lenders have a potential liability for knowingly permitting pollution with respect to activities of the borrower. Under the present drafting, therefore, as with the previous amendment, the risk remains that lenders could be held liable as appropriate persons, merely because they "knowingly permitted" substances which have 1455 contaminated land, to be on or under their land. I suggest that that might well be a matter which my noble friend may wish to consider.
Of course, lenders recognise that the environmental performance of their borrower may be one of the important factors when they come to make the loan and one may have loan documents which give lenders certain rights to check up that a borrower is performing his duties in relation to the pollution of the land. There may be circumstances in which a lender has a right to demand payment or immediate repayment or for the borrower to take corrective action if environmental performance is not up to scratch.
The fact remains that most banks and building societies are not experts in the field and they should not be held responsible for the acts or omissions of their borrowers merely because they happen to take what may be regarded as responsible steps to try to assess the quality of a borrower's environmental performance, requiring and monitoring environmental loan conditions. Again, there is the same problem. If the lenders are to be held liable in those circumstances, then lenders will not lend, business will suffer and the economy will suffer in consequence. There is an argument here as to what is meant. How far does the liability go and what do the words "permitted or knowingly permitted" mean in those circumstances?

§ Lord Lucas of Chilworth
I wish to follow my noble friend Lord Jenkin, but not quite down the same line as he took. My Amendments No. 238A and 372A, which is consequential, are grouped with Amendment No. 238ZA by the noble Lord, Lord Northbourne. As regards Amendment No. 238ZA it is, as the noble Lord described it, a state-of-the-art defence. In the circumstances which he described, I can see that it would be apt and fairly reasonable to accept the amendment.
Turning to the "appropriate person" with whom my noble friend Lord Jenkin was concerned, in the Bill the appropriate person is the one who caused or knowingly permitted the relevant substances to be in, on or under the land. But when we come to landfill, we find ourselves in something of a muddle. The waste regulation authority which licensed the site originally and which has monitored it and so on, has knowingly permitted the materials to be deposited. It not only permitted that to take place, but specified the types and quantities. So in a manner of speaking, it is the one who caused or knowingly permitted the contamination. If that is so, clearly the local authority cannot serve itself with a remediation notice. What then is to happen? Perhaps my noble friend will tell us.
A solution may well be, on the basis of the polluter pays principle, to ask who the polluter is. The polluter is probably no one single person. In relation to landfill, it is probably society in general. Therefore, if we designate authorities to administer these strict rules, we have to impose penalties on those who break the rules.
How do we impose penalties upon society at large? One might say that the interests of society at large have to be looked after by the public purse. There are a 1456 number of anomalies, as I read the Bill. We are all polluters. Once we have established the rules and had them properly applied and enforced, any further responsibility should be on society as a whole; that is, of course, on the public purse. I am not quite sure that my noble friend the Minister will accept that argument, but I would be grateful if he could clarify in the instance that I have briefly outlined just who is to be responsible.

§ The Earl of Lytton
I rise to support the amendment of the noble Lord, Lord Northbourne. I should like to make three points, the first of which has been partly covered by the noble Lord, Lord Lucas. It raises the question of what might be regarded as contributory negligence. The point that really raises my concerns is the idea of serial legal action between owners of land and those who licensed the previous fill, and lenders, if that be the case. A great many things start breaking down if we set off down that road without having some sort of cut-off point. So, first, there has to be some element of containment of the social and economic (as it were) ill effects of any new legislation.
My second point is that there needs to be some sort of reciprocity of standards when we are talking about "fit for use". By that I mean that material considerations as to whether you have an old landfill site in one location and you want to put a housing estate in another location nearby must cut both ways. In other words, the position of the original landfill site must take into account as relevant considerations the proximity of other interests that could be affected. And by the same token, with the passage of time, new development must take into account the old sites. It cannot be otherwise. Therefore reciprocity of standards is extremely important.
I asked a learned acquaintance of mine the other day about "knowingly permitting" things. He said, "Yes, it has a long heritage in the area of health and safety". But I was unable to get an answer—and I do not know whether the Minister can help me—on this point. It seems to me that health and safety legislation relates primarily to a controlled workplace. By the very nature of the animal, we are dealing with something that is not totally in control. Either we do not have it properly contained, or we do not know enough about it. It is in some way out of control. I would like to know just how "knowingly permit" is to be interpreted in this instance.

§ Viscount Ullswater
These amendments seek to introduce exemptions from liabilities and defences against remediation notices in particular cases, and to require the local authority to act itself to deal with any contamination where these exemptions apply. The Government do not, as a matter of principle, accept any of these amendments.
These issues were considered on a general basis in our review of policy on contaminated land. It was argued by some that there should be a general regulatory compliance defence whereby polluters would be exempt from liability if they had acted in accordance with the consents and authorisations required for their particular activity. It was pointed out, however, that the general 1457 effect of such provisions could well be positively damaging to industry because it would encourage greater and often excessive caution on the part of regulators simply to protect themselves against potential future financial liabilities.
Introducing exemptions from liability of this kind would run clearly against the widely accepted "polluter pays" principle. As regulatory action under these provisions can be required only to deal with cases of risk to health or the wider environment, the exemption could only have the effect of transferring the necessary costs of remediation to someone else, whether another person or the public at large.
My noble friend Lord Jenkin of Roding asked me to go back to basics. He asked what the words "permitting" and "knowingly permitting" meant. There is no evidence that the case law on that phrase, which is taken from previous environmental legislation, such as the Water Resources Act 1991 and the Environmental Protection Act 1990, has led to the kind of interpretation that my noble friend sought to put on it. There is no reason to believe that the use of the phrase in these provisions will be interpreted any differently or as widely as has been suggested by some noble Lords.
Amendment No. 238ZA, moved by the noble Lord, Lord Northbourne, and spoken to by the noble Earl, Lord Lytton, would prevent a remediation notice being served on the basis that the contamination of the land could not have been reasonably foreseen at the time when the substances were caused or permitted to be present in or on the land, as a consequence of the then state of scientific and technical knowledge.
While this might appear to reflect the same test of "reasonable foreseeability", which was recently established in the common law through the decision in the Cambridge Water case, the Government do not believe that the comparison is justified. Common law and statute law in this area do not have the same purposes. Actions at common law seek to provide remedies for private persons in respect of a variety of tortious acts; this proposed statute seeks to establish a regulatory framework to remove risks to health and the environment without introducing any notion of compensation. Given those essential differences, it is reasonable for the two systems to diverge.
In practical terms, the availability of this exemption would leave almost any attempt by the enforcing authorities to deal with any contamination open to litigation attempting to prove the state of knowledge in the past. Another perverse effect could be to provide an incentive to hold back developments in the state of science, as greater understanding could result in greater future liabilities.
Amendment No. 238A, moved by my noble friend Lord Lucas of Chilworth, seeks to introduce into these provisions an exemption from any remediation notice in respect of contamination caused by waste in a landfill for which a certificate of completion has been issued under the waste management licensing regime in Part II of the Environmental Protection Act. The unimplemented provisions in Section 61 of that Act, which we now propose to repeal, did include that specific exemption from the then proposed regulatory 1458 regime for closed landfills. However, that exemption would not necessarily have provided any protection against all potential actions under the statutory nuisance powers. In any case, following our policy review, we no longer consider that an exemption of that kind can be justified.
A certificate of completion for a closed landfill site is granted where it is: unlikely to cause pollution of the environment or harm to human health". The certificate means that the licence can be surrendered and the operator is no longer subject to the regime of conditions, monitoring and charging which goes with a licence.
It is not, however, meant to be a guarantee that no harm would arise at any stage in the future. Clearly, it is to be hoped that none would occur. But our regime needs to address who should be liable if it does occur. We can see no reason of equity why, in this particular set of circumstances, the liability should pass from the polluter to the public purse. No such transfer of liability occurs, for example, where other potentially polluting land uses come to an end.
Having such an exemption could result in the environment agency (which will take over the responsibilities of the waste regulation authorities) holding back from the grant of completion certificates, as they would have the effect of transferring liability to the public purse.
Amendment No. 372A would, in effect, place a duty on a local authority itself to carry out remediation works at its own cost where as a result of an exemption it was unable to serve a remediation notice. As I have already indicated, the Government do not believe that such exemptions should exist, nor that liabilities should transfer to the public sector in that way. Therefore, I ask the Committee to reject these amendments.

§ Lord Northbourne
I am profoundly disappointed by the noble Viscount's answer to my amendment. I believe that if the Government really want, as they state in paragraph 2.5 of their framework document, an efficient market in brownfield sites, they will certainly need something like the amendment. No business in its right mind will set up on a brownfield site with this sword of Damocles hanging over it when at any moment somebody may find a new contaminant and the company may be up for millions of pounds of remediation.
With that comment and the fact that I shall be coming back to the matter at a later stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 238A, 238AA and 238B not moved.]

§ Lord Peyton of Yeovil
moved Amendment No. 238BA: Page 50, line 48, at end insert: ("(5) When an enforcing authority has served a remediation notice in accordance with this section, it shall be the duty of the authority to take appropriate steps to satisfy itself that the requirements of that 1459 notice have been complied with, and, if they have been, to issue and serve on the persons on whom that remediation was served a certificate of compliance with that notice.").
The noble Lord said: The proposed new Section 78(D) of the Act requires local authorities to serve notice on any site requiring restoration and to put a copy on the register. If we are to have a register, it would seem to me to be common sense that it should be kept up to date. Therefore it would be desirable that the same authority which serves the original notice requiring the restoration —I use the word advisedly—should, first, satisfy itself that the work has been done; secondly, put an entry on the register to that effect.
Amendment No. 238BA is a simple one. It does not need a long reply. I hope my noble friend will merely say that he will give it serious consideration.

§ Lord Northbourne
I wish to speak to Amendment No. 243A. I am happy with the solution to the problem of the noble Lord, Lord Peyton, and would not press the matter further unless the Government prefer our solution to his.

§ Viscount Ullswater
I listened carefully to what was said by my noble friend Lord Peyton of Yeovil. Looking again at the provisions with respect to registers, we feel that something needs to be done with respect to the sites that have been right through the regulatory process. We wish to consider in more detail, in the light of the comments from my noble friend and the noble Lord, Lord Northbourne, how we might do that. Though we are not attracted to the idea of deleting the sites altogether, we feel that the register should contain information in addition to that already specified in the provisions, specifically recording the nature and extent of any remediation works. We would look to bring forward an amendment at a later stage to plug that gap.
Included in this group is Amendment No. 244, in the name of the noble Lord, Lord Carmichael of Kelvingrove. It seeks to make explicit a requirement that a register of regulatory action as maintained by the various enforcing authorities should be available for public inspection and that facilities should be provided for the public to make copies of entries. It is certainly the Government's intention that the register should be public and should be available for inspection in much the same way as envisaged in the amendment. In developing the provisions we believe that that was already implied by the effects of other legislation such as the environmental information regulations 1992. However, if the noble Lord will consider withdrawing the amendment, we will undertake to consider the question again and, if necessary, bring forward our own amendment at a later stage. It shows that sometimes silence is golden.

§ Lord Carmichael of Kelvingrove
I think tonight it is platinum gold. I am very grateful to him for the help he has given on my amendment.

§ Lord Peyton of Yeovil
I am grateful to my noble friend for his assurance and beg leave to withdraw the amendment.
1460 Amendment, by leave, withdrawn.

§ Lord Northbourne
moved Amendment No. 238BB: Page 51, line 10, leave out ("be in, on") and insert ("come into, onto").
The noble Lord said: In moving Amendment No. 238BB I shall speak also to Amendment No. 238C. Amendment No. 238BB relates to the question of exactly what subsection (2) means. It refers to a person who has knowingly permitted any of the substances by reason of which the land is contaminated to be in or on the land. It implies that any person who is on land which has at any time in the past had such substances on it or has substances which have come on it in the past is liable. The purpose of the amendment is to put into words what I assume the Government mean, that the person who is liable is he who allows such substances to be brought on to the land, or to come on to it.
Amendment No.238C raises a substantive issue: the innocent party who is asked to pick up the can. I do not seek to argue with the principle that those who have caused contamination, including landowners who have caused or allowed contamination or who have knowingly benefited from a discounted price in purchasing land that has been contaminated, should bear the cost of remediation to a standard fit for use.
However, Clause 78E goes far beyond that. In effect, the landowner becomes the scapegoat or long stop if the agency cannot find anyone else, even if he is completely innocent of blame and has had no benefit from the activity that has caused the contamination. The effect of subsections (2) and (3) is that, where the appropriate person cannot be found, or where liability has been transferred directly or inadvertently—thout necessarily the purchaser's knowledge or consent—the owner or occupier will be required to bear the costs of clearing up the contaminated land. That treats the landowner as a deep pocket, in exactly the way that the noble Viscount and the noble Lord, Lord Jenkin of Roding, suggested was inappropriate for lenders.
The deletion of subsection (3) will protect only innocent landowners or occupiers. New subsection (3) says that, where a person who polluted can show that he transferred the liability to the present owner or occupier, it is that person who is liable and the polluter is no longer liable. The transfer must be expressly made. The reference to "directly or indirectly" is deleted. Such a phrase is a recipe for uncertainty and litigation. In (3) (a), if the polluter has explicitly transferred the liability to a person who has failed to transfer it on to the next owner or occupier, it is that person who remains liable, not the polluter or his successor. In (3)(b), where a person refuses entry on to land to do works or otherwise prevents any person to deal with contamination, that person becomes liable.
I should like to ask the noble Viscount two questions. First, how hard will the local authority have to try to find the polluter before it finally falls back on the unhappy and innocent landowner - assuming he is an 1461 innocent landowner? Secondly, what about the case where the polluter can be found but cannot pay? I beg to move.

§ Viscount Ullswater
The underlying concern shown by this amendment, and also expressed elsewhere, is that the test of "knowingly permitting" can spread the net of liability too wide, particularly as it can encompass knowingly permitting the continued presence of contaminating substances. Amendment No.238BB moved by the noble Lord, Lord Northbourne, seeks to resolve that perceived problem by restricting the application of the test so that it applies only to the original polluting act when the substances came into or on to the land.
We consider that the effect of the amendment is to exempt too many categories of people who should be held responsible. We believe that it would be reasonable for somebody who has had active control over contaminants on a site, for example when redeveloping it, to become responsible for any harm to health or the environment that may result, even if he did not originally cause or knowingly permit the site to become contaminated. This amendment would exclude such a person from liability.
The Government appreciate that there are anxieties expressed about the existing test and are considering the issue carefully but do not accept some of the wider constructions being placed by others on the words "knowingly permitting" since this is not reflected in the judgments of the courts. We recognise, however, that this is a question of potentially great significance and we may wish to return with further clarification at a later stage.
Amendment No. 238C, in the name of the noble Lord, Lord Northbourne, seeks to amend the provisions by which liability might pass from the original polluter to the owner or occupier of the land. This, too, is an area in which the Government would wish to consider further the comments made both in this debate and elsewhere, and to bring forward a revised formulation at a later stage. The structure of liabilities set out in these provisions is intended to reflect the polluter pays principle that primary liability falls to the person who caused or knowingly permitted the contamination. In addition to the notion of a transfer of liabilities, the Government believe that where the original polluter cannot be found, it is justified that the current owner or occupier of the land should be held responsible for its condition and for any works needed to deal with the contamination. It is not a new concept. It was the position under the statutory nuisance powers in Part III of the Environmental Protection Act and also reflects principles in the common law. However, this amendment would mean that this principle would not be reflected in the contaminated land provisions. The Government believe that this would be wrong. However, I think I have indicated that the Government would wish to consider further the comments made in this area, and I would ask the noble Lord to withdraw the amendment.

§ Lord Northbourne
I am most grateful to the noble Viscount for what he has said. I beg leave to withdraw the amendment.
1462 Amendment, by leave, withdrawn.
[Amendments Nos. 238C to 238E not moved.]

§ Lord Stanley of Alderley
had given notice of his intention to move Amendment No. 238F: Page 51, line 20, at end insert: ("() Subsection (3) above shall not apply where compulsory powers exist to compel the owner or occupier to grant any interest in the land related to the activity or activities which gave rise to the contamination of the land, whether or not such compulsory powers were used.".").
The noble Lord said: I listened carefully to my noble friend's reply to the noble Lord, Lord Northbourne. Bearing in mind that my noble friend is taking the matter away and looking at it very carefully, at this stage I shall not move my amendment and shall wait until my noble friend comes back, I hope on Report, with an answer to the noble Lord, Lord Northbourne.
[Amendment No. 238F not moved.]
[Amendment No. 239 had been withdrawn from the Marshalled List.]

§ Lord Northbourne
moved Amendment No. 239A: Page 51, line 32, leave out ("guidance") and insert ("regulations").
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 239B, 239D and 242A. This is mercifully the last of my groups of amendments. Amendment No. 239A imposes a more appropriate framework of regulations rather than guidance. It is suggested that it is unconstitutional that onerous liabilities worth millions of pounds should depend on administrative guidance rather than on legal principles.
With regard to Amendment No. 239B, a person who simply appears to have caused or knowingly permitted contamination would be caught but for this amendment as well as a person who had done things. That is tantamount to saying that a person who looks guilty is guilty. The definition of "appear" in new Section 78F(6) makes it clear that the decision is to be an entirely subjective judgment by the authority and presumably not subject to appeal. Amendment No. 239D introduces a defence that the best possible practicable means had been used to prevent pollution. Amendment No. 242A enables appropriate persons to seek a contribution from any other appropriate person who caused the presence of contaminating substances in the land. In other words, where the authority goes for one person, that person can recover an appropriate part of the cost from other polluters, if he can find them. I beg to move.

§ Baroness Hilton of Eggardon
I rise briefly to address Amendments Nos. 240 and 241, which are intended to be helpful. They suggest that the regulations which relate to appeals against the serving of remediation notices should be subject to regulations which make clear on what grounds those appeals may be made so that people know that information when they appeal and do not make mischievous appeals. The amendments provide that there shall be uniform procedures and generally attempt to tighten the grounds 1463 upon which regulations are made. They are intended to be helpful and to prevent appeals being too widely and mischievously drawn.

§ Lord Annaly
I rise briefly to support Amendment No. 242A in the name of the noble Lord, Lord Northbourne. In its present form, new Section 78E(4) relies on the Secretary of State's guidance as to whether the enforcing authority should serve a remediation notice on two or more owners. That raises the spectre of joint and several liability under which deep pockets may be unfairly forced to pay for damage caused by others. In order to promote the best investment in remediation, it is important for business to have reasonable certainty about the chain of responsibility where there is more than one appropriate person. At the very least, the principles by which a contribution to the costs can be recovered should be expressly stated in the Bill.
The noble Lord's amendment provides for a reasonable apportionment of costs so that a person is liable only to the extent of the damage for which he had responsibility. That is an equitable principle which is stated in the legislation. The Government's assurance is sought that the principle of apportionment of costs will be stated in the Bill and not left exclusively to guidance.

§ Baroness Hamwee
Amendment No. 243 in the names of my noble friend Lord Beaumont and myself is one to which I can speak far more briefly than may appear from the length of the amendment. It is essentially an anti-avoidance provision and seeks to deal with a situation where a disposal site is run through a company which is then wound up voluntarily, for instance as soon as the last load of waste is deposited on the site. It would make the owner liable for any remediation expenses—recovery could be quite expensive—and seeks to deal with the use of a shell company as the owner of a site in similar circumstances.

§ Viscount Ullswater
Amendments Nos. 239A and 242A, both of which were moved by the noble Lord, Lord Northbourne, relate to circumstances where two or more people may be responsible for the contamination on a single site.
Amendment No. 239A would replace guidance from the Secretary of State with regulations. The Government understand the concern that questions of this importance as to the determination of the potential liabilities of individuals and companies should be set out in guidance. That is why the provisions already include the strict requirement that the enforcing authorities act in accordance with such guidance and that it be subject to parliamentary scrutiny in its draft form through a negative resolution procedure, before it can come into effect.
The number of different circumstances which the guidance will have to address is potentially so great, however, that the Government believe that it would be all but impossible to frame it in the form of regulations.
We can at this stage give some indication of the basic principles which will underlie the guidance. First, where different people have separately contributed to the 1464 problems on a contaminated site, liability should be shared among them in proportion to their share of the overall responsibility for the contamination. This would be an explicit rejection of an approach based on joint and several liability, in which all of the liability could pass on to the shoulders of a smaller group of those responsible, or even on to one person. Similar principles could also apply where two or more owners each owned a part of a contaminated site.
The second overall principle would be that, where effective control over the same contamination had passed from one person to another, for example from the person who caused it to be present to another who knowingly permitted it to remain, liability should rest with the person who most recently could have exerted control over the contamination.
Those principles should give some comfort in respect of the concerns which appear to lie behind Amendment No. 242A. That would enable a person who has complied with a remediation notice to recover contributions to his reasonable costs from anyone else who caused the contamination to be present. However, as the provisions currently stand, any of those other persons would in any case be themselves potentially appropriate persons. That would mean that the Secretary of State's guidance would apply, and would govern the apportionment of the liability where that was necessary. If the recipient of a remediation notice thought that the system had not been followed correctly, he would be able to appeal against that aspect of the remediation notice.
Amendments Nos. 240 and 241 relate also to the question of regulations, in this case concerning appeals against remediation notices. Amendment No. 240 would make it a duty on the Secretary of state to make regulations with respect to the grounds for, and procedures on, such appeals. I point out that in any event the right of appeal against a remediation notice is not conditional upon such regulations being made. The effect of the amendment would also be to remove any discretion over whether the regulations had to set out any particular procedures for appeals. In most instances, those would be to the magistrates' courts, and there may be no need for new procedures to be established to deal with such appeals.
Amendment No. 241 would have the effect of making the indicative contents set out in the Bill for the scope of these regulations into required elements. It is important to maintain some discretion, particularly in respect of the contents of the regulations, so that the Government are not required to make regulations which may, at some time in the future, be deemed unnecessary.
The list of items for possible inclusion in these regulations, which is provided in the proposed new Section 78G(5) is deliberately drawn very widely, both to indicate what general issues are intended to be covered and to ensure that problems of vires do not arise. However, it might be neither necessary nor sensible in some circumstances to include provisions in the regulations dealing with all of the areas identified in that subsection. Amendment No. 241 would remove the necessary discretion to make that decision. 1465 Amendment No. 243, moved by the noble Baroness, Lady Hamwee, would enable the court to declare that any director or officer of a body corporate which was dissolved to avoid liabilities in respect of contaminated land could himself be treated as the appropriate person to receive a remediation notice. The court could also declare that an enforcing authority could recover its costs or expenses from a holding company where it had set up a subsidiary company to avoid liability for contamination caused or knowingly permitted by the subsidiary company.
Like the noble Baroness, Lady Hamwee, the Government wish to ensure, so far as is practicable and reasonable, that people and companies are not able to evade what should be their responsibilities under this clause. However, the Government have severe reservations about the precise effects which would be brought about by this amendment.
The provisions in the first subsection could, for example, place individual directors in an impossible position if potential liabilities in respect of contaminated land were threatening the solvency of their companies. If they kept their companies in business, they could be found guilty of "wrongful trading" under the provisions of the Section 214 of the Insolvency Act 1986. But if they put those companies into voluntary liquidation in order to avoid questions of wrongful trading, they could be held personally liable for the costs of any remediation work required under these contaminated land provisions.
The second subsection would clearly "pierce the corporate veil", and run against the fundamental principles of limited liability for company ownership. The effect of the amendment would be to make shareholders, in this case holding companies, legally responsible for some of the liabilities of the companies in which they held shares.
I hope that I can reassure the Committee, however, that errant directors will not escape completely under the existing provisions of this clause. The new powers in respect of contaminated land which we are discussing here will, of course, sit within the wider provisions of the Environmental Protection Act 1990. Section 157 of that Act provides that where any offences under the Act are committed with the consent or connivance of, or are attributable to the neglect of, any director, manager, secretary or other similar officer those persons shall be themselves guilty of the offence and thus liable to be punished accordingly.
Amendment No. 239B, spoken to by the noble Lord, Lord Northbourne, is somewhat simpler. It seeks to replace a reference to someone appearing to have caused or knowingly permitted contamination with a stronger test of their having done so. This would reflect the wording used elsewhere in the provisions.
Rather than seeking to dispute the issue, the Government suggest that there may be a small number of other instances in the proposed new Section 78F to which the amendment applies. Having had these brought to their attention, they would wish to bring forward their own amendments to correct them at a later stage.
1466 Amendment No. 239D, also spoken to by the noble Lord, Lord Northbourne, is similar. I ask Members of the Committee to withdraw their amendments.

§ Lord Northbourne
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 239B to 241 not moved.]

§ Lord Williams of Elvel
moved Amendment No. 241A: Page 54, leave out lines 18 to 47.
The noble Lord said: It is with the greatest pleasure that I move Amendment No. 241A, which comes from the Opposition. We have listened to all kinds of arguments from the other side of the Committee and I wish to put forward an argument on our own. The Committee will be aware that the Delegated Powers Scrutiny Committee of your Lordships' House has looked at the Bill and reached certain conclusions. I refer the Committee in particular to paragraph 8 on page 2 of the report. The committee points out that the memorandum from the department justifies the negative procedure under the new Section 78H—which is azx Henry VIII power to increase a fine at random—by stating that the power, is necessary to ensure that the real value of the fine can be left constant". However, the new section does not state that that is the purpose.
The Delegated Powers Scrutiny Committee accordingly draws the attention of the House to new Section 78H(3) in Clause 54. That committee would be happy if the Minister were to give an undertaking which could be referred to in the courts. As a result of Pepper v. Hart, undertakings by Ministers can be referred to—

§ Viscount Ullswater
I hesitate to interrupt the noble Lord but I wonder whether he is addressing Amendment No. 241A, which leaves out lines 18 to 47, or whether he is addressing Amendment No. 242, which changes the resolution of each House of Parliament.

§ Lord Williams of Elvel
I was under the impression that I was addressing Amendment No. 241A, which leaves out new Section 78H. However, on the advice of the Minister, I shall look at that. Yes, I am addressing Amendment No. 241A. That leaves out, as the amendment on the Marshalled List points out, a clause which is to be inserted, the rubric of which reads: Offences of not complying with a remediation notice". The section is new Section 78H. The subsection of that section to which the Delegated Powers Scrutiny Committee took exception is Section 78H(3), which the Minister will find at line 31 on page 54. Therefore, my remarks are relevant to the report of the committee and, indeed, to what I have been saying hitherto.
The report of the Delegated Powers Scrutiny Committee states that the section as it stands does not state that this is the purpose", that is, to keep the real value of the fine constant, 1467 and the House may consider that the Minister should be invited to give an undertaking on this issue, which could be invoked by the Joint Committee on Statutory Instruments if the power were used to increase the real value of the fine". That is what your Lordships' Delegated Powers Scrutiny Committee has said. That is why I move the amendment; in order to obtain such an undertaking from the Minister.
The Minister may think that I am referring to something else. The noble Baroness has tabled an amendment which relates to the same report. I am referring specifically to Clause 54 and the words which I say in my amendment should be left out. We need an undertaking from the Minister along the lines which the Delegated Powers Scrutiny Committee asks for. I beg to move.

§ Baroness Hamwee
It may be for the convenience of the Committee if I speak also to Amendment No. 242, to which the noble Lord, Lord Williams, has added his name.
I am making the same point. The amendment seeks to provide a greater safeguard in the application of subsection (3) of new Section 78H and to seek an affirmative resolution in the case of an order to increase the maximum amount of the fine. It would clearly be helpful if the Minister were able to give the undertaking which the noble Lord seeks as to the purpose of the use of the power being to keep the real value of the fine constant. If the Minister were able to give that undertaking, it could be invoked by the Joint Committee on Statutory Instruments, if the power were used.

§ Viscount Ullswater
Perhaps I may be permitted to address Amendment No. 242 in the first instance. That may answer the question, about which I have become rather confused.
Amendment No. 242, in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Williams of Elvel, would impose an affirmative resolution procedure on any order made by the Secretary of State to increase the maximum level of fine for non-compliance with a remediation notice in respect of industrial, trade or business premises.
The provision which this amendment seeks to change has also attracted comments from the Select Committee on the Scrutiny of Delegated Powers, who described it as a Henry VIII clause. In our memorandum to that committee, the Government stated that our intention in providing a power to raise the level of the fine was to ensure that the real value of the fine can be left constant. I am happy to confirm on the record in your Lordships' House that that is indeed the Government's only intention in respect of that power.
However, in the light of the obvious anxieties over the operation of this particular power, I am happy to accept Amendment No. 242, and to have the power subject to an affirmative resolution procedure, although we shall have to come forward with a consequential drafting amendment to Section 161 of the Environmental Protection Act 1990 later in your Lordships' proceedings. Having said that, I could address myself to other points contained in the 1468 amendment moved by the noble Lord, Lord Williams of Elvel. However, I believe that what I have said may have satisfied the point for him.

Lord Campbell of Croy
As the only member of the Select Committee on delegated powers present in the Chamber (which has the duty of drawing attention to such matters), I was very glad to hear the response just given by my noble friend the Minister.

§ Lord Williams of Elvel
I find the situation very odd. The Minister has just agreed with what the Select Committee requested. Indeed, he went further than that: he not only agreed with what the Select Committee asked for, but he went on to say that that should be subject to the affirmative resolution procedure. I am perfectly relaxed about that fact. It does not bother me. However, I should have been perfectly happy with an undertaking from the Minister that the point of Section 78H was to keep the real value of the fine constant. But, if the Minister likes to go further, then that is his problem. I am just rather surprised and taken aback by his response.
Nevertheless, if the Minister is willing to go further, I shall wish to draw attention on Report to paragraph 9 on page 2 of the report of the delegated powers scrutiny committee as regards other matters for which the committee might prefer the affirmative rather than the negative procedure to apply. I have not done so to date, but in the light of the Minister's remarks I shall certainly grasp one-and-a-half loaves rather than half a loaf. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Baroness Hamwee
moved Amendment No. 242: Page 54, line 47, at end insert: (" (5) No order shall be made under subsection (3) above unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.").

§ Lord Harris of Greenwich
I should like to say a few gracious words to the noble Viscount for having accepted my noble friend's amendment. The fact that he has done so will be widely approved by Members of this Chamber.
On Question, amendment agreed to.
[Amendments Nos. 242A to 245A not moved.]

§ The Earl of Lytton
had given notice of his intention to move Amendment No. 245AZA: Page 58, line 45, after ("practitioner") insert ("or as a receiver of land (not being an insolvency practitioner)").
The noble Earl said: I should just like to say that I very much appreciate the response that the Minister gave earlier. On that basis, I shall not move the two amendments tabled in my name.
[Amendment No. 245AZA not moved.]
[Amendment No. 245AZB not moved.]
[Ámendment Nos. 245AA and 245AB not moved.]
Clause 54, as amended, agreed to.

Viscount Addison
moved Amendment No. 245B: After Clause 54, insert the following new clause: 1469 ("Old mineral planning permissions After section 22 of the Planning and Compensation Act 1991 there shall be inserted— Old mineral planning permissions. 22A.—(1) For the purposes of this Act "old mineral planning permisssion" means any planning permission for development—

(a) consisting of the winning and working of minerals; or

(b) involving the depositing of mineral waste,

which was deemed to have been authorised after 1st July 1948 and before 22nd February 1982. (2) Any person with an old mineral planning permission to win or work minerals or to deposit waste shall, within 5 years of the date of the coming into force of section (Old mineral planning permissions) of the Environment Act 1995, apply to the relevant mineral planning authority for approval of the environmental conditions to which the permission is subject. (3) An old mineral planning permission shall—

(a) if no application for the registration of the permission is made under this section, cease to have effect on the day following the last date on which such an application may be made; and

(b) if such an application is refused, cease to have effect on the day following the date on which the application is finally determined.".").

The noble Viscount said: The above amendment and Amendment No. 247B tackle the environmental problems created by old mineral planning permissions granted between 1948 and 1981, and prior to the 1981 minerals Act. I am aware that these amendments are widely welcomed outside the Chamber and have the support of several environmental groups as well as the Countryside Commission.
I highlighted some of the problems of old mining permissions in national parks at Second Reading, but the issues go much wider than this. It is clear that some of our finest landscapes and wildlife sites are now threatened by minerals extraction which was given the go-ahead 30 or 40 years ago, when concern for the environment was much less than it is today. Many old mining permissions are out of step with the environmental standards now required of new permissions, and also of the pre-1948 permissions—the so-called interim development orders—which have recently been updated as a result of the Planning and Compensation Act 1991.
These permissions are therefore anomalies in the mineral planning system. They often lack proper working conditions such as noise limits and frequently contain no requirement for the restoration of sites. By operating to lower standards than those applied to other mineral planning permissions, they also introduce distortions in the market. Many of these permissions are currently in operation and it is estimated that around the country 1,600 old permissions currently lie dormant, creating an environmental time bomb waiting to go off. Some of the worst problems lie within our national parks. There are believed to be at least 118 non-active sites across the national parks. In the Brecon Beacons and Pembrokeshire Coast there are 24 million tonnes of rock reserves waiting to be worked at currently dormant sites, amounting to nearly half of all rock reserves in these two national parks.
1470 It is widely recognised that these old mineral planning permissions are in urgent need of review. The Government have already made a number of welcome statements outlining their commitment to tackle the issue and to introduce the legislation needed to improve the situation. This commitment was most recently reiterated in the consultation paper on the review of old mineral planning permissions issued by the Department of the Environment last summer. We should not forget, however, that this issue was recognised as urgent by the Stevens Committee nearly 20 years ago and the Government have promised action since their first environment White Paper in 1990.
Amendment No. 245B would introduce a statutory time limit of five years for mineral operators to register their old mineral planning permissions with the mineral planning authority for the approval of modern working conditions. This issue was originally tackled in the 1981 minerals Act, which placed a statutory duty on mineral planning authorities to review mineral sites in their area. The measures set out in that Act have failed, however, as they establish no time limits on this duty. Consequently very little progress has been made in reviewing damaging permissions.
My first amendment, by requiring mineral operators to register their old permissions with the mineral planning authority for review within five years, would ensure that real progress could be achieved. The Government's recent consultation paper on reviewing old mineral permissions indicated their support for the introduction of a statutory time limit along the lines set out in my amendment. I hope my noble friend the Minister can give this amendment a fair wind.
My second amendment tackles the problem that many mineral planning permissions remain valid for too long. Currently, permissions granted before 1982 are valid until the year 2042, or 60 years. It is widely acknowledged and accepted by the Government that this period is too long. The purpose of my second amendment is to shorten the period until 2012 —30 years. It should be recognised that under current legislation a mineral planning permission granted in the 1950s could be valid for nearly 100 years! During this time the weight of importance attached to the environment, changing attitudes and the needs of society are likely to have altered greatly. In addition, a site could remain dormant for years and years and be reactivated with no notice, much to the concern of local residents and with potentially serious environmental consequences. It is now generally accepted that this is an overly generous period and that 30 years should be ample time to allow any investment to be recouped. Any mineral remaining in the ground after the investment had been written off would not have significant value and could not have significant value until further investment had been committed to mine and process it.
I believe that the amendment strikes the right balance between reducing the time for which damaging old mineral permissions may remain valid and allowing ample time for mineral operators to secure a return on any investment. It is therefore a reasonable approach to 1471 this difficult issue and would greatly help to reduce the lurking environmental threat posed by old mineral planning permissions. I beg to move.

Lord Campbell of Croy
I have put my name to the amendment. My noble friend has explained its purpose admirably.
I am concerned about permissions for extracting ironstone, which is a narrower subject within the terms of the amendment. Those permissions were mainly in Northamptonshire, other parts of the Midlands and Lincolnshire. The permissions are now out of date and superfluous as regards ironstone, which was used in the steel industry but has not been needed since 1979. The local environment is much affected and could continue to be affected if action is not taken.
The ironstone has lain below other minerals, chiefly limestone and clay. Those had to be removed before the ironstone could be extracted. The permissions allowed that, but since ironstone has no longer been needed those other minerals are those which are being extracted. The permissions now have the effect of allowing the extraction of substances which were not the objective at the time the permissions were granted. That time was soon after World War II, when ironstone was essential for our steel industry, especially in the area of Corby. That was 40 years ago and more. Those permissions were reserved for central government, which took the decisions, not local authorities.
In those immediate post-war years, the urgent requirement to assist the development of our industries, including steel, meant that the conditions attached to the permissions did not have as much regard to environmental considerations as would be normal today.
The permissions extended for many years and are not due to expire until 2042—nearly 50 years' time. In the meantime, heavy lorries are causing damage and operations are encroaching on villages. While observing fully and correctly the conditions—which are lax—the mineral companies are causing problems to rural villages and communities. Those troubles are likely to increase. Furthermore, there are few, if any, requirements to restore the land after use. That laxity seems very strange today, but it was not strange in the early 1950s.
I know that the Government's views on ironstone are similar to those which I have just expressed, because they are set out in the press release and discussion document which was issued to local authorities in the spring of last year. I hope that I am pushing at an open door in the case of the past mining of this particular mineral, which is no longer needed or extracted.
I have every wish to encourage and assist the minerals industry, and there is no shortage of suitable sites for extracting those minerals which are still needed. I understand that the local communities are not opposed. It is a matter of bringing the system up to date, especially in respect of the environmental arrangements.
Providentially, last week the CBI sent me its latest publication, Living with minerals. In that document the CBI says that: 1472 the UK minerals industry is now a creative and sensitive agent in the conservation and restoration of the environment —our common heritage. While mineral extraction by definition involves a permanent depletion of a natural resource, in land use terms mineral working is compatible with the principles of sustainable development. Mineral companies accept their special responsibility to follow best practice. They work to integrate mineral development with conservation, to maintain natural wildlife habitats, and, where desired and practicable, to return land to a natural state". It seems therefore that the operators will understand what is needed now—it has just been described—as opposed to over 40 years ago and will co-operate.
The simplest reform with regard to ironstone—I commend it—would be to revoke the permissions on a future date giving all concerned plenty of time. However, companies which are interested could apply in the meantime for permission to extract minerals such as limestone, clay and other substances. Their workings would then be re-established on a proper, modern basis. I understand that revocation would require primary legislation. The Bill presents that opportunity; the primary legislation is before us.
The amendment covers a much wider field than the problem relating to ironstone to which I referred. We shall listen with attention to what the Minister says in reply. However, I understand that the Government agree that the ironstone permissions should be revoked. Why wait? It might be two, three or even more years before other primary legislation can be introduced.
I have not found it easy to draft an amendment for revocation neatly and correctly. The Government could certainly draft and table an amendment to the present Bill if they wish to save valuable time. I hope that at a later stage, or in another place, a government amendment will appear in due course.

§ Lord Howie of Troon
I am sorry to detain the Committee. I know little about ironstone. The subject has been argued persuasively by my old colleague, the noble Lord, Lord Campbell of Croy. However, the amendment goes much further. I have been approached by the British Cement Association and the British Aggregate Construction Materials Industries to oppose the amendments. I have no doubt that the noble Viscount, Lord Ullswater, and my noble friend Lord Williams have separately received the same information as I have. I shall, therefore, not dwell on it in any detail at this late hour. However, the amendments are the only items among the proposals before the Committee which seek, single-mindedly, to damage an industry—the extraction of aggregates industry.
The permissions already granted to those industries represent their assets. The retrospective nature of the proposals in the amendments are, I believe, out of order. The two proposed amendments are potentially extremely serious for the aggregates industry. In their different ways they both attack the asset base and the economic generation of the quarries. This is an important point. No other land use whatever is subject to retrospective withdrawal of planning permission without full compensation and, as I understand it, no element of compensation is proposed in the amendments before us tonight. 1473 In terms of the asset base of the companies involved in the aggregate extraction industry, the mineral in the ground is the tangible asset, the security against which capital investment is justified. If we reduce the life of the mineral from 60 to 30 years, the asset base of the companies would then be affected, with a likely consequential effect on their ability to undertake the very environmental propositions which are demanded. The removers of aggregates already accept the duty to restore the environment to as near the condition as that in which they found it. It will not be quite the same but will be rather better than a hole in the ground.
All that remains for me to say is that for some time discussions have been in train between the Government and the industry. They are continuing and it would be quite improper to pass amendments of this kind at this stage before they have reached a conclusion. I hope that the Committee will turn the amendments down.

§ Baroness Hilton of Eggardon
The Committee would not wish me at this late hour to make a speech, but I wholeheartedly support the amendments of the noble Viscount, Lord Addison. Of particular anxiety is the removal of large quantities of stone from some of our most beloved parts of the country for use often in building motorways and other constructions where substitute materials could be used. It is one reason again for welcoming the slowing down in the road programme that perhaps not quite so much in the way of crushed rock and stone will be needed to build up our roads. I merely wish at this stage to record that I wholeheartedly support the amendment.

§ Lord Desai
I support the amendment and wish especially to correct the impression given by my noble friend Lord Howie on what capital assets and values are about. Earlier today we heard some interesting fallacies about the polluter pays principle. People spoke as if the fact that one cannot identify one polluter or that the polluter did not anticipate consequences lets the polluter off. I do not think that that is true. We must take the view that the aggregate industry and whichever firms exist have in the past polluted and not paid the proper cost, when most of them made excess profits. From that point of view their current asset values are inflated. To the extent that we say that the rules must be complied with, the amendment would force the market to take account of the appropriate costs of correcting for pollution, which have so far been neglected. So rather than being harmful to the industry, I agree that asset values will fall, but the problem is that asset values are currently exaggerated. They will return to their proper values. After all, that is what we want.

§ Lord Howie of Troon
The last thing I wish is to disagree with my noble friend because he knows much more about economics than I do. However, he has overlooked the fact that the aggregate industry is already involved in putting back into the environment at least as much as it has taken out. The current discussions between the industry and the Government are intended to accelerate and increase that progress. 1474 I hope we are not going to have a dialogue at this late hour. My noble friend is never wrong, but on this occasion he is not wholly right.

§ Viscount Ullswater
I am grateful to my noble friend Lord Addison for raising the environmental issues relating to old mining permissions and to my noble friend Lord Campbell of Croy for raising the problems of the ironstone permissions. The Committee will understand that these are not easy issues to resolve. They have concerned the Government for some time and I should like briefly to tell the Committee of the steps my department has taken so far to facilitate reforms.
After the success of the Planning and Compensation Act 1991 in dealing with the problem of interim development order permissions granted between 1943 and 1948, we turned our attention to other old mineral permissions granted in the 1950s, 1960s and 1970s. We followed the issue of an options paper in 1992 with a series of reform proposals in March of last year. That paper, The Reform of Old Mineral Permissions 1948–1981, attracted a considerable response and a summary of the views of those who wrote to us has been deposited in the Library.
Subsequent to those responses, departmental Ministers and officials have conducted a series of bilateral meetings with environmental and amenity groups, with the different operational sectors of the minerals industry, with the ironstone landowners and the minerals planning authorities. Those meetings have been generally constructive.
These are very important issues which the Government have a long-standing commitment to take forward as indicated by our consultation paper on proposals for change last year. It is a complex matter, as our discussions this evening have indicated. It is complex to get the right balance between the rights of those who hold long-standing valid mining permissions and the proper protection of the environment and amenity. I shall want to give the most careful consideration to these amendments and to the other representations that have been made in response to our consultation exercise and to make a statement on the Government's conclusions on Report. In the meantime, I hope that my noble friend will feel able to withdraw his amendment.

Viscount Addison
I am greatly encouraged by my noble friend's reply. I understand his concerns and other concerns with my amendments as they stand. But I am grateful that he has supported in principle the points that they raise. It is extremely important that progress is made before the Bill goes to the other place. With this in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 55 [Abandoned mines: England and Wales]:

§ Lord Beaumont of Whitley
moved Amendment No. 246: Page 60, line 40, at end insert: 1475 ("() It shall be the duty of the operator of the mine to publish any notice given under subsection (1) above in one or more newspapers circulating in any area that may be affected by consequences of the abandonment.").
The noble Lord said: At this hour of the night we approach the problem of abandoned mines. The matter is extremely serious, as all Members of the Committee will know. It has very great and grave consequences for the environment. The amendment in my name and in the names of the noble Lords, Lord Ezra and Lord Moran, seeks to extend the duties of the operator of the mine in giving notice of his intention to close a mine.
The Bill as presently drafted says that he shall inform the agency, and that is absolutely right. It goes on to say that the agency shall inform the local authorities, and that is right. In that way the matter comes into the public domain. But this matter is so important, and affects so many people who live round about the area of a mine, that it is right that we should try to short-cut the process by making it the duty of the mine owner to give public notice by publishing his intention in the newspapers that circulate in the area. That is the reason for this amendment. I hope that the Government will see fit to accept it. I beg to move.

§ Lord Mason of Barnsley
I rise to support the amendment. This concerns the wider dissemination of information concerning the planned abandonment of mines.
Before the passing of this Bill—that is, at this moment —a mine operator is under no duty to give any notice of intention to abandon the mine. But the wording of Clause 55 will improve the situation in that an obligation is imposed to notify the agency in advance of abandonment. That is helpful but by no means sufficient. Although this particular notification procedure is welcomed, it does not provide a procedure where other interested parties who will be directly affected by the abandonment will be so informed. Of course, I support the amendment to the effect that the local press should be informed.
But what of the owners of fishing rights? Their enterprise may well be adversely affected by a mine abandonment, the pumping of mine water likely to cease, rising mine water levels, the fear of mine water seepage and of pollution. Also, within the area of a mine closure, should not the regional fisheries committees of the National Rivers Authority be informed, thereby being enabled to take whatever precautions are necessary should they anticipate a flooding or pollution problem of the rivers or still waters of their area? I believe too that it is also sensible to alert the national office of the Salmon and Trout Association, so that its branches can be alerted in the vicinity of the abandoned mine.
The Salmon and Trout Association is the senior game angling organisation in Great Britain. It is the governing body of the sport in England and Wales. It is concerned with the wellbeing of all waters, and in particular those that hold stocks of salmon, sea trout, trout and grayling. It is the only organisation in England and Wales that monitors all applications for licences for abstraction and 1476 consents to discharge made to the National Rivers Authority. As a result, branches in all regions are watchful for any pollution problems.
Pollution from abandoned mines is certainly a concern. Valuable salmon rivers and their stocks could be at risk. The Minister will know that the River Wear in the County of Durham is a classic example. With regard to the general area of concern about pollution—that is what everyone concerned with the environment, pollution and pure waters is worried about—I would want the headquarters of the Anglers' Conservation Association, which incorporates the Pure Rivers Society, to be informed in advance of pit closures and abandonment of mines.
The Anglers' Conservation Association is a national organisation of high repute in the angling world. Its individual membership and that of its angling clubs cater for about 250,000 anglers throughout England and Wales. It exists mainly to fight the polluters of our inland waters, rivers, lakes and reservoirs. It is the one major organisation with 40 years of experience of taking the polluters to court and making them pay, having lost only two cases in that time. Therefore, for the benefit of its membership and the wider knowledge of any likelihood of pollution problems arising from abandoned mines, the ACA too should receive prior notification of pit closures and abandonments.
I do not feel that it is sufficient for the agency, having been informed of a proposed abandonment, in its turn to inform the local authority. The matter should not rest there. As I pointed out, there are other interested bodies which need to be notified, with some of whom the local authorities will not be in touch.
The newspapers circulating in the area, having broken the news to the locals—if the Minister accepts this amendment —will help to plug some of the gap of concern. But I hope that some thought will be given to specific organisations being informed, at least those that I have mentioned. The Minister may not be able to give me a full reply at the end of this debate on the amendment, I hope that he will give the matter some thought and give us some more information at Report stage.

§ Viscount Ullswater
This amendment, moved by the noble Lord, Lord Beaumont of Whitley, is concerned with the new requirements for mine operators to give the agency at least six months' notice of any proposed abandonment of a mine. It proposes that any such notice should be published in newspapers circulating in areas which may be affected by the consequences of the abandonment.
The noble Lord, Lord Mason of Barnsley, exemplified the anxieties that many of the fishing interests, including the Anglers' Conservation Association, would have as regards the concept of the abandonment of mines.
The purpose of requiring mine operators to give prior notice is to allow the agency to assess fully the likely impact on the water environment of a proposed abandonment and to identify any steps which may need to be taken in order to protect water quality. The matters 1477 to be considered will be of a technical nature. I am satisfied that there would not be any reason at this stage for a mine operator to publish a notice in the local press of a proposal to abandon a mine. In addition, this would place a further, unnecessary, burden on industry.
However, we have taken account of the need to inform local authorities in some circumstances of a proposal to abandon a mine. Where the agency receives notice of an abandonment and considers that harm or water pollution will be caused in the area of a local authority by water from the mine, it must inform the local authority of the abandonment.
I should point out that, if a consent is required for a discharge which will be caused in consequence of the abandonment, the Water Resources Act 1991 will require the application for that consent to be advertised in the manner prescribed by the Secretary of State. I know that that does not go as far as the noble Lord, Lord Mason of Barnsley, would like me to go. However, I shall consider carefully what he said this evening to see whether further action should be taken. In the meantime, I hope he will agree that adequate notice will be given to those concerned.

§ Lord Beaumont of Whitley
That is an extremely disappointing reply. It does not meet any of the arguments put forward by the noble Lord, Lord Mason, and myself. When the noble Viscount reads tomorrow what he said in Hansard he will probably agree with me. To say that the publishing of an intention to close a mine in one or more newspapers circulating in the area is, a further, unnecessary, burden on the industry", is ludicrous. It is a most unsatisfactory reply and we shall certainly come back to this matter at Report stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Baroness Hilton of Eggardon
moved Amendment No. 247: Page 61, line 17, at end insert: ("() any county council").
The noble Baroness said: This is a simple amendment. It seeks to include county councils within the definition of local authorities. It may be that when the Bill was drafted it was assumed that there would no longer be county councils. Of course things have changed since then and the amendment seeks to include county councils within the local authority definition.

§ Viscount Ullswater
This amendment seeks to add "county council" to the definition of "local authority" in proposed new Section 91B. It is really a technical point. The local authorities to be informed of a proposed abandonment are those which will have functions with regard to contaminated land in Clause 54. There will therefore only be a need to inform a county council when it is the council of an area for which there are no district councils. That is reflected in the definition of "local authority" in proposed Section 91B as currently drafted. I hope that that indicates that if the county council is the council in the area, it will be notified.

§ Lord Harris of Greenwich
Were the noble Baroness to decide to challenge the Minister's view, 1478 there would be no quorum in the House when the Division took place. The Chamber has now been sitting for over 10 hours. The noble Viscount will be aware, as a former Chief Whip, of the discussions in the Procedure Committee about hours of sitting of the House. I must say to him quite bluntly that it is wholly unreasonable that we are discussing matters of this importance at this time of night, particularly when we adjourned consideration of this Bill at 7 o'clock last Thursday evening.
I do not propose to press this matter any further. However, I wish it to be placed on the record that in the future my noble friends and I will not accept procedures of this sort.

§ Baroness Hilton of Eggardon
I do not intend to press the amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.

§ The Earl of Kintore
moved Amendment No. 247A: Page 61, line 29, at end insert: ("Mine operators to notify Agency of proposed transfer of ownership. It shall be the duty of the operator of a mine to inform the Agency of any proposal to transfer the ownership of a mine which is to, or which may, become an abandoned mine at any time after the expiration of the initial period".").
The noble Earl said: In moving Amendment No. 247A, I shall speak also to Amendment No. 247D. These amendments are intended to ensure that the agency in England and Wales, (in Clause 55) and SEPA (in Clause 56) are informed about any proposed change of ownership of any mine as soon as possible after the Bill becomes an Act. We feel that there is a danger of a rogue mine owner trying to evade his future responsibilities by a quick sale or disposal. I beg to move.

The Earl of Lindsay
The amendment moved by the noble Earl, Lord Kintore, seeks to place a duty on the operator of a mine to notify the agency or SEPA of any proposal to transfer the ownership of any mine which is to be abandoned, or may be abandoned. The wording of the amendment will require proposals to transfer the ownership of any mine which is, or may become, an abandoned mine at any time from six months after the transfer date to be notified to the agency or SEPA. Such a requirement could add to the bureaucratic workload of the agency and SEPA without materially improving their ability to control water pollution.
I understand the thinking behind the amendment of the noble Earl. However, in our view the provisions already in Clauses 55 and 56 will significantly enhance the powers of the agency and SEPA to anticipate and prevent water pollution from abandoned mines. We do not believe that the proposed amendments make any further contribution of substance to that aim. On that basis, I invite the noble Earl to withdraw the amendment.

§ The Earl of Kintore
I thank the noble Earl for his answer. At this time of night, I beg leave to withdraw the amendment. 1479 Amendment, by leave, withdrawn.
Clause 55 agreed to.
[Amendment No.247B not moved.]
Clause 56 [Abandoned mines: Scotland]:

The Earl of Lindsay
moved Amendment No.247C: Page 62, line 35, at end insert: ("(4) This Part extends only to Scotland."). The noble Earl said: I beg to move this minor technical amendment.
On Question, amendment agreed to.
[Amendment No.247D not moved.]
Clause 56, as amended, agreed to.
Clause 57 [Amendments to sections 89 and 161 of the Water Resources Act 1991]:

§ Baroness Hilton of Eggardon
moved Amendment No.248: Page 63, line 38, after ("apply") insert ("to the Coal Authority or").
The noble Baroness said: Amendments Nos.248 and 250 seek to ensure that somebody is responsible when mines are abandoned and by the turning off of pumps water overflows from mine workings and pollutes rivers. At present the situation is wholly unsatisfactory. If a mine is abandoned it is not clear who is responsible. We have asked questions in this House about who will maintain the pumps and keep them running. This amendment seeks to ensure that the Coal Authority is responsible for maintaining the pumps so that polluted water does not escape and run into rivers. The amendment is closely associated with Amendment No.249 and the following one that seek to change the timescale. I shall be addressing those amendments in due course. This amendment is an attempt to pin responsibility clearly on somebody to ensure that mine waters do not pollute rivers or drinking water supplies. I beg to move.

§ Viscount Ullswater
The amendment moved by the noble Baroness, Lady Hilton, seeks to remove existing statutory protections from the Coal Authority with respect to water pollution from abandoned mines. The amendment will prevent the existing defence against prosecution for pollution, and the existing exemption from recovery of expenses, where water from an abandoned mine is only permitted to pollute controlled waters, from applying to the Coal Authority. The removal of the defence and exemption would apply to discharges permitted by the Coal Authority from abandoned mines, regardless of when such mines were abandoned, or by whom.
We believe it to be right that the defence and exemption should be ended. Clause 57 would have that effect for all mines abandoned after the end of 1999. We have thought carefully about this change in the course of a lengthy review of the legal framework for discharges from abandoned mines and have reached several conclusions. Discharges from abandoned mines vary widely in their impact on the water environment. Some result in no pollution while others are more serious. Outright removal of the defence and exemption as 1480 proposed in the amendment would require the Coal Authority to seek discharge consents for all discharges, regardless of the degree of pollution, and to comply with them. That would not be justified in many cases and would place a heavy burden on the public purse.
We should not in any case distinguish between different types of mines or discharges permitted by public or private sector bodies. There is no reason to treat such discharges differently. We believe it would be wrong to withdraw suddenly those statutory protections which apply now to all abandoned coal mines for which the Coal Authority has responsibility. The Government have already said that they would expect the Coal Authority to go beyond the minimum standards of environmental responsibility which are set by its legal duties and to seek the best environmental result which can be secured by the use of the resources that are available to it. We must accept that the Coal Authority, like all public bodies, has limited financial resources. The amendments would destroy the careful balance of the Government's proposals between protecting the environment and safeguarding the public purse. Having said that, I hope that the noble Baroness will see fit to withdraw her amendment.

§ Baroness Hilton of Eggardon
I find that a disappointing response. It is still not at all clear who is responsible for maintaining the pumping from mines, whether they be old coal mines or other mines. We had hoped that the amendments would ensure that responsibility was clearly defined. However, in the circumstances, I beg leave to withdraw the amendment but reserve the right to return at the Report stage.
Amendment, by leave, withdrawn.

§ Lord Stanley of Alderley
moved Amendment No. 248A: Page 63, line 38, leave out ("if the mine in question") and insert ("to the owner of any land unless he was also the operator of the mine in question and that mine").
The noble Lord said: With this amendment, I should like to speak also to Amendments Nos. 249B, 250A and 251B. As I understand the way the Bill is written, the liability for clearing up any contamination and, indeed, stopping further contamination from a mine would rest in the end on the owner of the land. The abandoned mine could well be on adjacent land yet surface on an innocent landowner, with the liability then resting on that innocent landowner. That is clearly unjust. The amendment would exonerate the innocent landowner.
In the great majority of cases the abandoned mine will be a coal mine. As I understand it, there is a danger that it will be extremely difficult—perhaps impossible—to find anyone liable for mines abandoned after 31st December 1999, in which case, unless the amendment is accepted, the innocent landowner may well end up carrying the responsibility. I do not think that that conforms with the statement of the Minister for Energy in the House of Commons on 22nd March 1994. Having referred to the Water Resources Act 1991, he said: The legislation is there in that form because when the Bill was introduced and the Act debated it was felt to be unreasonable to place an absolute obligation in respect of environmental damage on 1481 a landowner who may never have been responsible for mining at all and who may have bought the land without being aware that it was undermined".—[Official Report, Commons, 2213/94; col. 207.] That principle applies equally to contaminated land. I beg to move.

§ Viscount Ullswater
As I indicated, Clause 57 removes the statutory protections for discharges permitted to flow from mines abandoned after the end of 1999. We have proposed that change because we believe that the existing framework is anomalous and treats discharges from abandoned mines differently from all other discharges. The amendments would maintain the defence against prosecution for pollution of controlled waters and the exemption from cost recovery by the agency where water is only permitted to flow from an abandoned mine in the case of landowners unless they were the operator of the mine and the discharge was a result of the abandonment of the mine.
In putting forward the provisions in Clauses 55 and 57, we have tried to strike a balance between protecting the environment and creating a regime which is workable. My noble friend's amendment would introduce further anomalies and would also make it a simple matter for mine operators to avoid their responsibilities by selling mines on abandonment to another person who could then benefit from the maintained protection. I am sure that my noble friend did not intend that effect, but I think he should consider the wider repercussions of the amendment and I therefore ask him to withdraw it.

§ Lord Stanley of Alderley
If my noble friend is right, I did not intend that course, but I did intend what I said—I do not believe that an innocent landowner should pay. I shall read carefully in Hansard what my noble friend has said to see whether I should return with this amendment at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Baroness Hilton of Eggardon
moved Amendment No. 249: Page 63, line 39, leave out ("31st December 1999") and insert ("the transfer date").
The noble Baroness said: This is a further attempt to ensure that somebody is responsible for dealing with pollution from abandoned mines. For some strange reason, although the Government are minded to address the problem, they have inserted a date which is nearly five years hence which gives people the opportunity to abandon mines or in some other way to get rid of them in the meantime without having the responsibility for dealing with the pollution pinned upon them. I do not understand why there should be such a long delay in removing the exemption from prosecution for pollution.
The amendments in the group insert "the transfer date" as the appropriate date and give a date next year. Both provisions seek to make clear who should be responsible and that that should be forthwith rather than in five years' time. I beg to move.

§ Lord Mason of Barnsley
I rise to support the amendment. It is most important to me, coming as I do from a mining community. The amendments seek the 1482 immediate abolition of the defence available to the owner of an abandoned mine under the Water Resources Act 1991 and are to ensure that that defence should not continue for another five years.
On page xiii of the introduction to the Bill, headed "Abandoned mines", the Government freely admit that the reason for the delay in abolishing the defence is to reduce the possibility of an, adverse effect on proceeds to the Government"— that is, the proceeds of the privatisation. Presumably it is believed that leasing mines would be less attractive to the private sector if the defence were removed immediately. Therefore, a five-year safeguard has been given. That is incredible. It shows a blatant disregard for the environment and the likely pollution problems caused by the abandonment of mines.
Many organisations have already expressed concern. Indeed, the National Rivers Authority in my region of Yorkshire and Northumbria has already informed me that, In relation to future mine abandonments, Clause 57 of the Bill removes the existing defence against prosecution for pollution and exemption from recovery of expenses where water from an abandoned mine is permitted to enter controlled waters. However, the change would only apply to mines abandoned after 31 December 1999". The NRA finds that incredible and supports amendments bringing the date forward to 1st April 1996.
The NRA report Abandoned Mines and the Water Environment which was published in March last year stated that in England and Wales alone 200 kilometres of rivers, streams and brooks are already affected by varying degrees of pollution from abandoned coal-mines. In the Scottish coalfield there are 134 kilometres of surface waters which are polluted from 110 discharges in the Clyde and Forth catchment areas alone. The Coalfield Communities Campaign has been very concerned about this and believes that the timing of the proposed measure is directly related to the Government's intention to maximise the proceeds from the sale of the coal industry and not—I emphasise the word "not"—to the need to protect the environment of the mining areas. It also seems relevant that the Coal Authority, which is at present continuing pumping operations in areas such as Durham and South Yorkshire where mines have already been abandoned, might become criminally liable if it stops pumping, whereas it might not if there is a five-year delay in abolishing the defence.
Neither in the Coal Industry Act nor the Bill have the Government made any attempt to clarify responsibility for environmental pollution that is the legacy of Britain's coal mining industry.
The existing abandoned mine defence ought to be abolished immediately. If existing pumping by the Coal Authority were to stop before 31st December 1999, the length of polluted rivers would increase greatly and threaten rivers of national importance. Looked at in that light, it is again clear that the Government are concerned more with raising revenue than with protecting the environment. 1483 The Bill still fails to address the problem of long abandoned mines where pollution is occurring already. That is a problem, and a worrying one too, facing the mining communities. The legal loophole is to be removed, but only for mines abandoned after the end of 1999. There are about 23 former British Coal mines left, but dozens of pits have been closed in recent years, with all the worries about the continuation of pumping.
On abandonment, the Bill does not demand that mine operators contribute to environmental protection costs for their abandoned mines, or even to take account of the environment when they abandon a mine; £1 billion has been raised from the sell off of the coal industry. Why cannot some of that money be diverted to clear up years of unchecked pollution in the mining areas?
The Bill contains no proposals for co-ordinated action to deal with the legacy of coal mining. I ask the Minister: will the Coal Authority act as the custodian of abandoned mines, and, with the Department of the Environment, prevent and control minewater pollution? Minewater pollution, with its severity, its extent, and its occurrence, is difficult to predict, and so it needs constant monitoring to avert pollution disasters. In the coalfield areas we have had more than our fair share of environmental degradation, burning muckstacks, opencast coal mining, tipping sites and industrial pollution. That of course is where the abandonment of mines and pollution is likely to happen.
I hope that the Minister is prepared to look sympathetically upon the amendments. It is essential that we get the defence removed now, and do not wait another five years.

§ Viscount Mills
Given the hour, I do not intend to move my amendment. I support the principle of the amendment moved by the noble Baroness, Lady Hilton of Eggardon.

§ Viscount Ullswater
The amendment moved by the noble Baroness, Lady Hilton, and spoken to by the noble Lord, Lord Mason, and my noble friend Lord Mills seeks to prevent the defence against prosecution for pollution of controlled waters and the exemption from costs recovery by the agency where water is only permitted to flow from an abandoned mine, from applying in the case of mines abandoned after the transfer date, or 1st April 1996 (our current intention is that the transfer date will be 1st April 1996). The provisions of Clause 57, as drafted, would take effect for mines abandoned after the end of 1999.
Our decision to remove the defence and exemption was taken in the knowledge that that would be a step of great significance not just as a means of improving the quality of discharges from mines abandoned in the future, but with the practical and financial implications for the current owners and operators of mines.
The effect on revenue from coal privatisation was only one of a number of issues considered in deciding that the statutory protections would be lifted at the end of 1999. The Government wanted to allow all mine owners time to adapt to the change. In addition, the 1484 agency will have powers to clean up or to prevent pollution if it considers that necessary under the Water Resources Act 1991.
The measures in Clause 55, which define abandonment and require mine operators to notify the agency six months before abandoning a mine, will take effect from the transfer date. They are designed to work as a precursor to the removal of the defence and exemption. However, we have taken the view that it would be right to allow those involved a period until the end of 1999 in which to adjust to the proposed changes in the existing regulatory regime because of the obvious practical and financial implications. In this way, we hope to ensure that the provisions are effective in practice. That intention would not be helped by these amendments and I ask the noble Baroness to withdraw them.

§ Baroness Hilton of Eggardon
That is a deeply disappointing response. It is not at all clear where the responsibility will lie in the next five years. It is not at all clear who will be responsible if pollution occurs. However, we shall return to the matter on Report and in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 249A to 251B not moved.]
Clause 57 agreed to.
[Amendment No. 252 not moved.]

§ Viscount Mills
moved Amendment No. 252ZA: After Clause 57, insert the following new clause: ("Powers to require polluter to "clean up" After Section 161 of the Water Resources Act 1991, there shall be inserted— Powers to require polluter to "clean up". 161A. Without prejudice to section 161 above, where it appears to the Agency that any poisonous, noxious or polluting matter or any solid waste matter is likely to enter, or to be, or to have been, present in any controlled waters, then the Agency may, by notice, require the person on whom the notice is served to carry out the following works and operations, that is to say—

(a) in a case where the matter appears likely to enter any controlled waters, works and operations for the purpose of preventing it from doing so; or

(b) in a case where the matter appears to be, or to have been, present in any controlled waters, works and operations for the purpose—

(i) of removing or disposing of the matter;

(ii) of remedying or mitigating any pollution caused by its presence in the waters, or

(iii) so far as it is reasonably practicable to do so, of restoring the waters, including any flora and fauna dependent on the aquatic environment of the waters, to their state immediately before the matter became present in the waters,

and in either case, the Agency shall be entitled to carry out investigations for the purpose of establishing the source of the matter and the identity of the person who has caused, or knowingly permitted, it to be present in controlled waters or at a place from which it was likely, in the opinion of the Agency, to enter controlled waters. (2) Subject to subsection (5) below, a notice under this section may be served on any person who, as the case may be— 1485

(a) caused or knowingly permitted the matter in question to be present at the place from which it was likely, in the opinion of the Agency, to enter any controlled waters; or

(b) caused or knowingly permitted the matter in question to be present in any controlled waters.

(3) A notice under this section shall—

(a) state that the Agency is of the opinion that works and operations are needed;

(b) specify the nature and location of the matter in question and its point of entry into controlled waters, or its likely point of entry;

(c) specify the steps to be taken by way of works or operations to be undertaken;

(d) specify the period within which those steps must be taken.

(4) Any person who fails to comply with any requirement imposed by a notice under this section shall be guilty of an offence and liable—

(a) on summary conviction to a fine not exceeding £20,000 or to imprisonment for a term not exceeding three months or to both; or

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(5) A notice under this section requiring works and operations may not be served on a person in respect of water from an abandoned mine which that person permitted to reach such a place as is mentioned in subsection (2) above or to enter any controlled waters unless the mine in question became an abandoned mine after 1st April 1996. (6) In this section "controlled waters" and "mine" have the same meaning as in section 161 above".").
The noble Viscount said: I do not wish to try the Committee's patience for more than a few moments. However, I should like to obtain a brief response from the Minister to the amendment. It proposes that the agency should be able to require polluters of controlled waters to carry out clean-up works themselves. In my view, the amendment could have two benefits. The first is that it could allow more clean-ups to occur and the second is that it would provide a constant approach to polluters of both land and water.
I believe that there are already powers under the contaminated land provisions of the Bill to require the polluters of land to clean up. I beg to move.

§ Viscount Ullswater
Amendment No. 252ZA would give the agency a new power to serve a notice requiring anti-pollution works to be carried out by a polluter or potential polluter of controlled waters. These works could include the removal of polluting matter, remedying or mitigating pollution, or, so far as reasonably practicable, restoration of the waters to their state before the pollution occurred.
1486 Under existing legislation, the NRA has a power to carry out such anti-pollution works and then to seek to recover from the person who caused or knowingly permitted the pollution to occur the expenses which it incurs. The intention of the amendment is that the agency will have the opportunity to require the polluter to take action before having to undertake and initially pay for such work itself. I am sure that the proposers see this as a way of ensuring more directly that the polluter pays.
In setting up the agency, we are seeking to achieve a degree of consistency in the measures which will be used to control different kinds of pollution. The notice procedure set out in the amendment is, in many respects, similar to the enforcement procedures proposed in respect of contaminated land. However, it departs from those and other measures in some significant respects. I am anxious, for example, because no right of appeal against a notice is envisaged, as it is proposed that a failure to comply with the requirements of a notice should be an offence for which the maximum penalty proposed would be imprisonment. While it may be open to a person upon whom a notice has been served to seek relief from the courts on the ground of unreasonableness, I find it difficult to accept that such a person should have no statutory right of appeal, in particular if his case is that the agency had no power to serve notice on him as he did not cause or knowingly permit pollution to occur.
A notice procedure would also be a significant change to the existing law which would have implications for industry, including the water industry. Those implications, together with some very important issues concerning the precise provisions of any such power, including the right of appeal, require very careful consideration. Therefore, we cannot take the amendment forward at this stage.
Nevertheless, I recognise that the underlying principle that the agency should be able to require polluters to take action to remedy water pollution and pay for that action merits further consideration. In the meantime, I ask my noble friend to withdraw the amendment while we undertake that consideration.

§ Viscount Mills
I thank the the Minister for his response, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

The Earl of Lindsay
I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at five minutes past one o'clock.