Environment Bill [H.L.]

HL Deb 07 March 1995 vol 562 cc120-89

3.9 p.m.

The Minister of State, Department of the Environment (Viscount Ullswater)

My Lords, I beg to move that the Bill be now further considered on Report. Moved, That the Bill be further considered on Report.—(Viscount Ullswater.)

On Question, Motion agreed to.

Lord Campbell of Croy: moved Amendment No. 125:

Before Clause 54, insert the following new clause:

("Planning permission for ironstone extraction

. After section 22 of the Planning and Compensation Act 1991 there shall be inserted—

"Ironstone extraction.

22A.—(1) Any person with planning permission to win or work ironstone or to deposit waste from such working but who no longer intends to win or work ironstone shall, within 5 years of the date of coming into force of section (Planning permission for ironstone extraction) of the Environment Act 1995, apply to the relevant planning authority for approval of the environmental conditions to which the permission is subject.

(2) The planning permission shall cease to have effect—

1. (a) if no application is made under this section, on the day following the last day on which such an application may be made; or
2. (b) if the application is refused, on the day following that on which the application is finally determined.".").

The noble Lord said: My Lords, in Committee I spoke to an amendment covering a range of minerals. My particular concern was, and remains, one substance; namely, ironstone. I have now tabled a separate amendment, the one under discussion, because ironstone is a special case. Its extraction ceased 15 years ago. It is no longer wanted.

It may be asked: why then are some of the ironstone permission sites still being worked? The answer is that there are other substances to be extracted. Limestone and clay lie above the ironstone. It was permissible at the time of ironstone operations to extract also the limestone and clay in order to get at the ironstone. Those permissions are enabling work to continue for a quite different purpose to the one intended.

Ironstone was essential for our steel industry after World War Two. Decisions to grant the permissions were taken by central government, not by local authorities, because they were of national importance. A condition was attached that the ironstone should be transported by rail. The last ironstone was extracted in 1979 and the associated railway system no longer exists. As a result, heavy lorries now cart limestone around rural roads and through small villages, thereby causing disturbance, especially to the environment.

Permissions are due to last until the year 2042, which is nearly 50 years ahead. To conclude them now would not, in my opinion, be contractually incorrect because the permissions are no longer being used for the purpose for which they were applied for and ironstone is no longer wanted. In that context, perhaps I may quote from a letter dated only five days ago which I received from the British Aggregate Construction Materials Industries. It states:

"Mineral planning permissions by their very nature are temporary. Once the mineral is exhausted the site is restored to some other use".

I was delighted to receive that letter. It is very reassuring when the permissions are to last for 40 years or more. However, ironstone extraction can be regarded as being over. It ceased to be needed 15 years ago. However, extraction of other minerals, not the subject of the permissions, continued. They were incidental to the operations for which permission was sought.

A year ago the Government issued a consultation paper. It proposed revocation of the ironstone permissions without compensation. Primary legislation would be necessary. That could be done in this Environment Bill. My amendment carries out the intention declared by the Government in their consultation paper a year ago.

My amendment also provides time for the operators to apply to extract other minerals at the sites if they so wish. Up-to-date conditions to protect the environment could then be attached to the new permissions. The amendment is not expertly drafted; nor does it cover every point to be considered. It is aimed at illustrating clearly the action that I believe is required. I hope that a government amendment at a later stage, using this Bill as primary legislation, will be moved.

In Committee my noble friend Lord Ullswater envisaged that he would make a statement at this stage—Report stage. I recognise that he may wish to make a general statement about minerals which would come after our next debate on Amendments Nos. 126 and 127. My amendment is a special case because it relates only to ironstone. That is why I move it separately. No doubt the Government will take into account the progress of the discussions which have been taking place involving the local authorities concerned, the industrial operators and landowners. I understand that the gap which existed in reaching agreement has been much narrowed during discussions,

I would prefer a solution agreed outside Parliament, if possible, among all those concerned. If that is not possible, legislation will be necessary, for the reasons I have given. I am sure that the Government would also prefer agreement outside Parliament, if possible. That is my reason for moving the amendment after speaking on the issue in Committee. I beg to move.

3.15 p.m.

Lord Boardman

My Lords, I am aware of the sites covered by my noble friend's amendment. I share with him the wish that they should be remedied as soon as possible. There is a very real need for that to be done for environmental reasons.

I must correct my noble friend on one small point. He referred to limestone having been extracted in order to get at the ironstone. Limestone and ironstone were an essential part of steelmaking. Presumably, limestone is now required for a whole range of purposes, including agriculture. That does not in any way weaken my wish to see the areas remedied and environmentally restored as closely as possible to a respectable state of affairs.

I have one worry about the amendment. It involves withdrawing existing permissions without any compensation being paid. I believe that that would create a very unfortunate precedent. I would hope—my noble friend said that it was his hope also—that agreement could be reached with the ironstone companies, the landowners and the county council to enable this matter to be resolved on terms acceptable to all. I hope that that may still be possible. Perhaps my noble friend will have some comments to make. Any withdrawal of permissions without compensation, which involved having to pay for additional planning permission for subsequent use of the site, would create a precedent I could not support.

Viscount Ullswater

My Lords, I thank my noble friend Lord Campbell of Croy for his eloquent presentation of the issue of old ironstone consents. The Government have considered that issue extremely carefully. We have had useful and detailed meetings with the ironstone operators, the landowners and Northamptonshire County Council, among others. I have been much encouraged by the very real efforts made by all sides to try to find a local, negotiated solution to the problem.

However, I have to say clearly that, notwithstanding the analysis of the problem by my noble friend, with which I very much agree, the Government have decided that it is wrong in principle to revoke the old consents without compensation. That was a point that troubled my noble friend Lord Boardman. Therefore, I do not intend to proceed with the consultation paper proposal. That does not mean that the existing position can be allowed to remain as it is.

I understand that at the great majority of ironstone sites the quality and quantity of limestone available is not commercially viable and therefore is unlikely to be worked. Where that is the case, the sensible way forward is for the planning authority to bring forward prohibition orders. My noble friend is right. I intend to announce proposals dealing with the issue of old mineral consents on the next group of amendments. Those proposals will do much to lead to a speedy resolution of the major problems posed by old ironstone permissions. In the light of those remarks, perhaps my noble friend will feel able to withdraw his amendment.

Lord Campbell of Croy

My Lords, I am grateful to my noble friend Lord Boardman, who is an expert on this subject, for supporting the amendment and for pointing out that limestone was needed for the steel industry in earlier days. Of course, the permission sought was for extracting ironstone. Limestone is still very much needed but it should be the subject of a separate application. I hope that as a result of the discussions and the Government's further considerations ultimately that will happen.

I am also grateful to the Minister for what he has said. A year ago the Government proposed that the ironstone permissions should be revoked without any compensation at all. Naturally, my amendment followed that line. I appreciate that, as a result of the discussions that have taken place, even in the case of the ironstone sites compensation may he appropriate, and certainly ought to be considered. I understand that change in the Government's view. I will listen carefully to what the Minister says in his statement at the end of our next debate, which involves a number of other minerals, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Addison moved Amendment No. 126:

Before Clause 54, insert the following new clause:

("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 permission" means any planning permission for development—

1. (a) consisting of the winning and working of minerals; or
2. (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 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) Where the mineral planning authority refuses an application under subsection 2 above, or in granting such an application determines conditions that differ in any respect from the conditions set out in the application, the applicant may appeal to the Secretary of State.

(4) An old mineral planning permission shall—

1. (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
2. (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: My Lords, I should like to return to the issue of old mineral planning permissions which I raised in Committee. The issue is addressed by Amendments Nos. 126 and 127, They tackle the environmental problems of old mineral permissions granted between 1948 and 1981. They were widely welcomed both within and outside the House when they were discussed during Committee.

In previous debates I highlighted the particular environmental problems caused by old mining permissions. It is perhaps worth reminding ourselves just how serious the problem is. These permissions 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.

In addition to the large number of active quarries currently operating with outdated working and restoration conditions, there are about 1,600 old mineral permissions which are dormant. They can be reactivated at any time, and many are in environmentally sensitive areas. I believe that this is an issue that requires urgent action if we are to avoid serious environmental consequences. I am aware of a number of shocking examples of environmental harm that has been caused by old mineral permissions. A particularly disturbing case can be seen at Druridge Bay on the Northumberland coastline. Here, a planning permission for sand extraction was granted in the 1960s on the condition that only a small mechanical digger should be used. This digger now scoops 2 tonnes in its bucket and erodes the beach and dunes by the extraction of 40,000 tonnes of sand a year. Similar damage occurs in the national parks. Eldon Hill quarry in the Peak District was granted permission in the 1950s and is now called the best known eyesore in the Peak. Currently, it is the subject of a further planning application to extend the workings.

There is general agreement both within the minerals industry and more widely that these old mineral planning permissions are in need of review. The Government have consulted widely on review options, and I believe that my amendments reflect the outcome of those consultations. The amendments offer a real opportunity to get things moving. I was delighted by the positive response of the Minister at Committee stage and in discussions since then.

I should like to explain the exact purpose of my amendments to ensure that there is no misunderstanding. Amendment No. 126 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. Since Committee I have modified the amendment to include a right of appeal for mineral operators, as it is important that the system is as fair as possible to all parties. This issue was tackled originally in the Town and Country Planning (Minerals) Act 1981 which placed a statutory duty on mineral planning authorities to review mineral sites in their areas. The measures set out in that Act, however, have failed as they establish no time limit on the duty. Consequently, very little progress has been made in reviewing permissions that cause damage. This is a real problem, especially in designated areas like national parks. In my view, these areas should be given priority when updating old permissions. By requiring mineral operators to register their old permissions with the mineral planning authority for review within five years, the first amendment would ensure that real progress could be achieved. I hope that my noble friend will be supportive of my amendment.

The second amendment tackles the problem that old mineral planning permissions remain valid for much longer than any other type of planning permission. Consequently, working and restoration conditions fall below current environmental standards. At the moment, mineral permissions granted before 1982 are valid until 2042. It is widely acknowledged and accepted by the Government that that is too long a period. The purpose of the second amendment is to shorten the period to 2012. I believe that this approach brings significant environmental benefits without causing problems for the mineral industry. Under current legislation a mineral planning permission granted in the 1950s could remain valid for nearly 100 years. During that time the importance attached to the environment and the attitudes and needs of society would be likely to alter greatly.

Obviously, the review of old permissions is crucial to bringing their operating standards up to date, but it will not address the fundamental question of whether or not the workings should carry on at all. In some cases, for example in SSSIs, there may be a real argument that workings should cease. At the moment, those workings can continue until 2042. My amendment will bring the end date forward to 2012. At that point mineral operators would be free to reapply for planning permission to carry on. If no environmental damage is being caused by the mineral extractions they should have little to fear from the procedure.

I believe that the amendment strikes the right balance between reducing the time during which old permissions that cause damage may remain valid and allowing ample time for mineral operators to secure a return on any investment. I believe that it is a reasonable approach to this difficult issue and will greatly help to reduce the lurking environmental threat posed by old mineral permissions. I beg to move.

Baroness Hilton of Eggardon

My Lords, we on these Benches support both amendments moved by the noble Viscount, Lord Addison. He has dealt with them comprehensively. I merely add that this is a consequence of the early years of planning after 1948. Many planning permissions were granted at a time when there was less understanding than now of the effects of mineral workings on the environment, those who lived near them and the roads that served them. The permissions granted in those early years were not made subject to the kind of conditions which would be imposed if granted today. Modern working practices are much less environmentally destructive than those of 50 years ago.

The 1981 Act was intended to equip mineral planning authorities with power to review old permissions and impose new ones where necessary. However, it contained compensation provisions which in practice were so broad as to make it prohibitively costly for authorities to make extensive use of that power. Mineral planning authorities are concerned about the local economy, local environment and the overall well-being of local people. They have to balance those different considerations. They fully understand the importance of the minerals industry as a provider of jobs and essential raw materials. However, county councils, London boroughs and metropolitan authorities believe that the noble Viscount's new clause will establish a proper framework for an orderly staged review of old permissions, balancing all of the relevant considerations.

Moreover, in relation to Amendment No. 127 there is a general perception that the date 2042 is too far in the future and that a reduction in the end date will afford an opportunity to reconsider sites which may now be considered to be in the wrong place: for example, national parks and SSSIs. A reduction of the end date to, say, 2022 will give the industry ample time to amortise its assets and yet also emphasise that the very long permission periods are inconsistent with the current need to protect the environment.

Baroness Hamwee

My Lords, I should like the support of these Benches for the two amendments that have been moved. They seem to us to be very well balanced, I hope that the House will take the opportunity that this Bill offers to rectify a matter that I know has been of widespread concern.

3.30 p.m.

Baroness Lockwood

My Lords, my name is attached to these amendments and I therefore wish to speak in support of them. The noble Viscount, Lord Addison, has clearly outlined the purposes of the amendments but I should like to illustrate the problems involved by giving two examples. Many of your Lordships will realise that, because of the magnificent limestone formations in the Yorkshire Dales, which is the area I know best, the dales have suffered in recent years through the quarrying of the limestone. That has made a great impact on the environment of the dales, both the living environment and the landscape.

The amendments would not stop the quarrying of limestone. Recent planning permissions have been given in the Yorkshire Dales for further quarrying. However, the conditions that have been attached to those planning permissions are far more stringent than those attached to the permissions that were given in the early 1950s. If the old planning permissions are to remain, it is important that they should be subjected to the same stringent environmental considerations as the newer planning permissions. The effect of the amendments would be to ensure that that was done.

One of the areas in the Yorkshire Dales is an example of a dormant planning permission which could be reactivated at any time up to the year 2042. The area is at Ribblehead in the centre of the Three Peaks which arc well known to fell walkers. They are also well known to railway travellers as they are on the scenic railway route from Settle to Carlisle. Planning permission for quarrying there goes hack to 1952 and 1956. The quarries have not been worked since the 1970s but they could be reactivated at any time, and reactivated on conditions which are far less stringent than the conditions that would be imposed today. If they were brought into line with new planning permissions, any reactivation of work in the quarries would mean that it was being done on a level playing field.

A further example is an area for which, again, planning permission was given in the early 1950s. It is for the removal of limestone from a limestone pavement known as Winskill Stones, just north of Settle. The planning permission gave unlimited scope for the removal of that limestone paving and I understand that around 1,000 tonnes of limestone are cut from the pavement each year, the main reason being to provide stones for rockery gardens. This is an irreplaceable heritage which is gradually being eroded and destroyed at a time when limestone pavements are being given priority status under European legislation. Limestone is a finite resource and its use should be limited strictly to those processes where its qualities are essential. It should not be used as just another aggregate or as a garden ornament and decoration. In the quarrying process the unique limestone formations which have led to the designation of these areas as national parks in the first place should be carefully preserved.

The amendments seek to provide the proper framework in which planning permissions could be given for work within the national parks as well as in other areas. We should respect the purposes behind the amendments. I hope that the Minister will be able to accept them.

Lord Gisborough

My Lords, about a fortnight ago I was in Wharfedale. I am sure that there can be few finer places to walk. There I saw some old scars on the hillside which had obviously been made many years before and had been left as eyesores. It is interesting to compare those scars with the results of more modem quarrying. Very often the replaced quarry looks better than the original site.

What is required to achieve good environmental standards without threatening the quarry industry, which is so important, with what amounts to retrospective compensation? I am sure that there is a way but I do not think it is the way set out in the proposed new clause. My noble friend Lord Ullswater referred today and in Committee to the steps taken by the industry to improve its performance. That should be recognised. Some of us have had material from the British Aggregate Construction Materials Industries and it is clear that their environmental code, strongly supported by the member companies, is already having a beneficial effect. That should be encouraged. There is no reason why in essence that could not be incorporated into legislation. It would be wrong to attack the underlying assets and economic operation of companies' sites while formalising the continuous uprating of the environmental performance of the industry.

The line proposed in the new clause is quite unique in planning law. How many other industries would be threatened in this way? The key issues that go right to the heart of the economic operation of aggregates sites are those of the area, depth, rate and hours of working and the total quantity to be extracted. Surely those rights should not be forcibly removed or diminished without full compensation. However, we know that this policy area has been the subject of consultation and subsequent discussion for nearly a year. The industry has come forward with positive proposals that, subject to the safeguards I have just covered, would allow regular updating of all sites to the benefit of the environment but without unreasonably prejudicing the economics of the operation. I support that approach.

This is not an abstract issue. We are debating the future of an important industry. It is one vital to the construction industry and to the economy, particularly rural areas and the rural economy, where often it is one of the rare sources of jobs. We want the quarry industry to be good neighbours. That is what the industry says it wants too. A better and fairer framework than the new clause proposed by the noble Viscount, Lord Addison, could help to get the right result.

I should like to add a special comment on what are called dormant sites—those with full planning permission but which have not been worked for some time. I have some sympathy for those near such a site that suddenly opens up after perhaps decades. I understand that dormant sites can still be important assets and part of companies' and local authorities' land banks, but some carefully considered special regime might not be unreasonable. Those which have been dormant since before 1982 should not reopen without completely updated conditions being attached.

Lord Desai

My Lords, I rise to support the amendment moved by the noble Viscount and supported by my noble friends. An asset which exists now is only worth what its future net income will be. What we face right now is a planning permission which was given long ago when environmental benefits were underpriced or not priced at all. Therefore, by not paying the proper cost for the environmental costs imposed, extra profits were made. We are not asking the industry to give back those extra profits. I should like to see that, but neither I nor the noble Viscount is proposing that. We are saying that from here on an appropriate price should be paid for making good the environmental damage done. That is not recontracting. It is basically reflecting an uncertainty that any investor faces when prices change. If prices change we have to pay the changed prices. Therefore, under those conditions, no extra compensation should be paid but we should say that the people who operate the planning permissions should pay the appropriate price for making good the damage done.

Perhaps I may say something about compensation. That arose regarding the amendment moved by the noble Lord, Lord Campbell of Croy. In that case, I believe that there is perfect justification for saying that no compensation should be paid. The mineral extraction for which planning permission was given is no longer applicable because the mineral is no longer being extracted. That planning permission has no future income. It may have alternative incomes because everything has such alternative incomes. The permission was for extracting ironstone and if that is not being extracted, the position changes. Therefore, in such cases no compensation is necessary because future income as regards extracting ironstone as a result of granting the permission is zero. One can add together any number of zeros, and the result is zero. Therefore, there is no compensation to be paid, and that particular asset has no value whatsoever in economic terms.

Lord Renton

My Lords, as with all excavation, quarrying and mineral extraction, the crux of the matter is that the licence or planning permission should ensure that conditions are attached for restoration of the site. It is that restoration to which we have to apply our minds in particular. I am not sure of the technicalities of this matter. We have heard various views expressed. I shall be very interested to hear what my noble friend Lord Ullswater has to say.

I am quite sure that the Government should bear in mind—as was done with the opencast coalmining sites—that most of them had very stringent conditions attached. In most cases, there has been exceedingly good restoration work which has fitted in well with the countryside. That is what we need to go for. I hope that my noble friend will be able to say whether the amendment of my noble friend Lord Addison achieves that objective or whether something slightly technically different is needed.

Lord Moran

My Lords, I am quite sure that the noble Lord, Lord Renton, is right to stress the importance of restoration. But the problem is that many of the old planning permissions had no conditions attached to ensure restoration. That is one of the biggest problems being faced. They also did not have proper environmental conditions attached such as restriction on noise limits, hours of working, depth limits and so forth.

I support the proposed amendments. I was encouraged by what the Minister said at Committee stage. I look forward very much to hearing what he has to say about the government review which they have been carrying out. They have had consultations, but it has been a very slow process. It is important that the matter should be speeded up.

One of the problems about old planning permissions is that as they were granted on much less stringent conditions than would be given today, and very often for areas where one would never obtain planning permission today, such as in national parks, SSSIs and areas of outstanding natural beauty, there is a distortion in the market between people operating on the old and lax permissions and those who are operating with today's rightly much more stringent conditions.

I am also very worried about dormant permissions. I believe that there may be as many as 1,600 of them. In some areas they are a kind of time bomb ticking away with no restrictions at all at the moment on when those permissions will expire. That is a source of great worry. Therefore, I hope that the Government will be able to go some way to meet the arguments put forward by the noble Viscount, Lord Addison.

3.45 p.m.

Lord Glenarthur

My Lords, I have considerable difficulty with the amendment of my noble friend Lord Addison. I must declare an interest in that for five or so years I have worked for Hanson PLC which owns ARC, a company heavily involved in the aggregates business throughout the United Kingdom. During the five years I have been involved with it I have become familiar with many different aspects of the industry and the issues which it faces.

While I recognise the sentiments which lie behind my noble friend's amendment, I have to ask him whether he has really considered the damaging effects of what he proposes. The effect of economic loss was very much glossed over by the noble Lord, Lord Desai. The loss of asset value cannot be ignored to those companies which are engaged in winning minerals and it is, as my noble friend Lord Gisborough said, considerably greater than anything which exists if other types of planning permission are taken away. To that extent, what my noble friend proposes will result in a measure which is not only retrospective, but to a very large extent confiscatory. I very much echo the remarks of my noble friend Lord Boardman.

When my noble friend Lord Ullswater replies, I hope that he will bear in mind two important matters. Although I am aware that there may be bad examples up and down the country, I hope he is aware that in general the quarrying industry has proved itself to be much more adaptable, responsive and responsible than perhaps my noble friend Lord Addison gave credit for.

I believe that the industry has demonstrated a readiness to accept proper constraints which contemporary environmental awareness necessitates. I believe that my noble friend Lord Renton and the noble Lord, Lord Moran, will find plenty of examples of really first-class restoration of works which returned what was perhaps a large hole in the ground to its original state, but also enhanced in a way which people never imagined before, environmental amenity and other aspects which the work gave scope for.

There are numerous examples throughout the country of the industry accepting restrictions on the sensory aspects of quarrying such as noise, control of vehicles, blasting and visual amenity. I have no doubt that more can be done where the cost of so doing would not be excessive, But there is a major difference between those sorts of conditions and those limiting, for example, depth, area, quantity and rate at which minerals can be extracted. To that extent, the noble Lord, Lord Moran, seemed to connect the sensory factors with those later examples which I have given.

It is very much that second point which I ask my noble friend on the Front Bench to bear in mind. Those later conditions limiting depth, area, and so on, represent the asset value of the operation which the noble Lord, Lord Desai, seems to believe does not really exist, Imposing revised and restrictive conditions without compensation is wholly unacceptable. During the passage of the Planning and Compensation Act 1991, the then Minister, the right honourable Sir George Young, made a statement, in relation to interim development orders, advising that a distinction should be drawn between conditions which deal with the environmental and amenity aspects of working a site which would not affect asset value, and conditions that would fundamentally affect the economic structure of the operation. Conditions that would significantly affect the asset value would be more appropriate for reviews under the provisions introduced by the Town and Country Planning (Minerals) Act 1981. The difficulty was that that matter was merely addressed as a statement of intent and was not enshrined in legislation.

Since 1948 much enhanced legislation, notably the Town and Country Planning (Minerals) Act, has been introduced. Consents granted for mineral extraction since then have been given with a much greater degree of control. I believe that everyone is prepared to acknowledge that, but I urge my noble friend to make plain on the face of the Bill under what conditions compensation will be payable. If the principle of Sir George Young's statement is worth the paper on which it is written, putting that in the Bill cannot make much difference to the Government, but it would certainly make a difference to its acceptability to the industry, particularly since it has been demonstrated that mineral planning guidance has subsequently weakened the intention of that statement.

If my noble friend can go that far, he will find that the industry is responsive to him. However, if what he is going to say does not recognise the fact that mineral planning permissions are integral to the stability of the industry and thus form a key part of the asset base (and hence the balance sheets of companies) with all that that entails for employees, shareholders and the industry's contribution to the economy, and that, if removed, the rights that were granted under the planning system will not be compensated in law, I am afraid that the scope for a meeting of minds on that issue is very much diminished. I very much hope that my noble friend will see the force of those arguments and produce a statement from which all concerned can derive confidence.

Lord Howie of Troon

My Lords, I apologise for my late arrival. Unfortunately, I missed the opening speech of this debate and will consequently speak extremely briefly. I hope that my few remarks will be construed as supporting entirely every word that has just been spoken by the noble Lord, Lord Glenarthur, including his comments on the asset base, a matter on which I disagreed with my noble friend Lord Desai in Committee.

I cannot support the amendment for the following reasons. Whereas planning authorities would be unable to withdraw planning permissions instantly, they could however apply new conditions without any hindrance with the sole protection of an appeal to the Secretary of State. That would be without compensation. I agree with British Aggregate Construction Materials Industries that that would be a complete negation of natural justice. It would put the Secretary of State in a position of being able to confiscate the rights of mineral operators in a wholly arbitrary way. I should add, however, that I do not expect the noble Viscount to act in such a way. There is no parallel for that approach in any other form of land use planning. There can be no justification for introducing a more severe restriction here than is normal in other aspects of land use planning.

Having said that, and having arrived late, I shall say no more except to repeat that I strongly support the words of the noble Lord, Lord Glenarthur. I hope that the amendment will be withdrawn and, if it is not withdrawn. that it will be defeated.

Lord Marlesford

My Lords, I rise to support the sentiments that have been expressed by my noble friend Lord Addison in moving the amendment. We know that the wording is not likely to form part of the legislation and we eagerly await what my noble friend Lord Ullswater will say that the Government have in mind.

The essence of the discussion is that things have changed from the time when many of the permissions were granted. Higher standards are demanded now. I very much agree with what my noble friend Lord Renton said about the reinstatement of mineral workings being of great importance, but I do not think that that is everything. Perhaps I may give just two examples which show how the practice of the time when the permission was originally granted might be regarded as unacceptable today.

The first is an example relating to minerals, but from the United States. As your Lordships know, it was in 1848 that John Sutter discovered gold in California—a most exciting and romantic event. Subsequently, in the early days after the war, huge machines were introduced into northern California which used mega-sized jets of water to mine the gold. The result was huge pollution affecting the Sacramento River. Some 20 years ago the United States abandoned that process because it was no longer acceptable. Your Lordships can now spend a happy weekend with your frying pans, panning for gold. I am told that we are more likely to find a good nugget than to win the National Lottery, but the mega-sized jets of water can no longer be used. The United States believes very much in free and private enterprise, but that is an example of how things change and of the fact that what was originally regarded as acceptable is no longer so regarded.

Perhaps I may take another humble example. I refer to bridleways. They were made for the traffic of the day, and I suggest that it is not acceptable for four-wheel drive vehicles to career over the Ridgeway, for example. All that we are really saying is that in this important area of mineral workings, it is important to bring the law up to date with what is acceptable today.

Viscount Ullswater

My Lords, I am grateful for the way in which my noble friend Lord Addison moved his amendment and for the many contributions that have been made to the debate. My noble friend indicated some of the problems that need to be addressed. In supporting the amendment, the noble Baroness, Lady Hilton, made it clear that a responsible attitude to the economics of local communities and to the industry should he adopted.

The industry is of considerable importance for the economy and our standard of living, and it is to he commended on the steps it has taken in recent years to improve environmental standards. My noble friend Lord Gisborough mentioned the BACMI environmental code. I agree with my noble friend Lord Glenarthur that that was a very responsible move. However, not all operators work to the same high standards, and it is in the long-term interests of the industry as a whole for the problems created by old permissions to be resolved at the earliest date,

The principle that mineral permissions should be updated and that the industry should bear some of the costs was recognised in the procedures introduced by the 1981 Town and Country Planning (Minerals) Act, but these have not worked well, as the noble Baroness. Lady Hilton, indicated. We have consulted extensively on proposals to ensure the updating of old mineral permissions and the elements of a decision are now in place.

The Government therefore intend to bring forward amendments in another place to deal with those problems. We intend that the amendments will provide for the following. First, they will require the initial updating of planning permissions where the predominant planning permission was granted before 22nd February 1982. We intend to make a distinction between "dormant" sites—that is, sites where no development has taken place to any substantial extent for a number of years—and "active" sites—that is, sites which are currently operating or where working has been only temporarily suspended in recent years.

To spread the workload, we intend that active sites should be reviewed in two consecutive phases, dealing with the oldest sites first. Phase I, to be completed within three years, would deal with sites where the predominant permission was granted before 1st April 1969. Phase II, to be completed in the following three years, would deal with sites where the predominant permission was granted after 31st March 1969 but before 22nd February 1982. To deal with the particular problem of sites wholly or partly within national parks, areas of outstanding natural beauty and sites of special scientific interest, I propose that all these should be reviewed in the first phase. I hope that that will reassure my noble friend Lord Addison.

Mineral planning authorities would be required to compile lists of sites, specifying in which phase active sites would be reviewed and the date by which the owner or operator must submit a scheme of updated planning conditions for the Authority's approval. If no scheme was submitted the permission would fall. Dormant sites would not be allowed to recommence working until a new scheme of conditions had been approved.

This broadly follows the approach we adopted for interim development orders. This approach is working well and real improvements are being achieved. I therefore intend to follow the approach set out by Sir George Young, which is that there should be no compensation for any new environmental, amenity and restoration conditions imposed on sites—I hope that that will reassure my noble friends Lord Renton and Lord Marlesford and the noble Lord, Lord Moran—whether active or dormant, but there would be a right of appeal to the Secretary of State.

Guidance would make clear that for "active" sites a distinction should be drawn between conditions that deal with the environmental and amenity aspects of working the site, which would not affect the asset value, and conditions that would fundamentally affect the economic structure of the operation. Conditions that would significantly affect the asset value, or fundamentally affect the economic structure of the operation, should be imposed only by agreement with the operator or by the use of revocation, modification or discontinuance orders which would attract compensation. My noble friend Lord Glenarthur today, and the industry, have suggested to me that this approach should be enshrined in statute. I am giving careful consideration to that proposition.

I recognise the concerns that some sites are simply in the wrong place and their permissions should be revoked. The Government do not believe in the revocation of planning permissions without compensation. However, for dormant sites, full modern conditions will be appropriate before reactivation. These would be imposed without compensation.

I wish to encourage greater use of prohibition orders to remove the problem of long dormant sites where there is no real intention to work them. In considering whether or not to confirm such orders, the Secretary of State will wish to satisfy himself that the land or mineral owner can demonstrate a real and genuine intention to work the site and that the site is capable of being worked to full modern conditions. A vague indication that the site might be worked sometime in the future will be insufficient. I believe the proposals for full modern conditions and the policy I have set out for prohibition orders will go a long way to resolving the problem of dormant sites.

The amendments will also provide for periodic reviews of all mineral sites every 15 years. This is important to ensure that the conditions attached to permissions keep pace with the standards of the day—a point made by my noble friend Lord Marlesford—and that we do not re-create the problem we now have. Mineral planning authorities would have to notify operators when a review was due and the date by which a scheme of conditions should be submitted for approval. If no scheme was submitted the permission would fall. There would be a right of appeal against the imposition of unreasonable conditions and a clear entitlement to compensation.

I turn now to the issue of the end date for permissions granted prior to 1982. I have given careful consideration to whether the date of 2042 should be brought forward. The primary task is to get the permissions updated to modern standards. The measures I have outlined will ensure that active permissions have to be reviewed within six years and that dormant sites cannot be reactivated until full modern conditions have been imposed. This, combined with increased use of prohibition orders to deal with sites that are unlikely to be worked in the future, will ensure that any problems caused by the current end date will be minimised. I therefore propose to leave the end date unchanged.

I return briefly to the subject of old ironstone consents. I indicated earlier that our proposals would do much to resolve the main issues posed by these permissions. Active ironstone sites must be reviewed and upgraded within the first phase. Dormant sites will not be able to reactivate until full modern conditions are approved, including provision for proper access and transport which are of particular importance for the sites. Taken as a whole, together with the increased use of prohibition orders, this approach will lead to substantial improvements on the ground without the need for revocation of consents.

I shall briefly mention the position on peat. As noble Lords may know, much peat extraction takes place from within old permissions which are now also SSSIs. I have had constructive discussions with the industry, which has agreed that all old peat permissions should be reviewed in the first phase of the initial reviews. The industry will also have regard to the safeguarding of adjacent areas which are of nature conservation value, the phasing of remaining extraction, and proposals for rehabilitation, wherever practicable, to provide future areas for nature conservation. The industry has voluntarily agreed to surrender substantial working rights to achieve this approach.

The package we propose follows broadly the proposals we consulted on last year, refined in the light of consultees' comments. It will ensure that old permissions are brought up to acceptable standards; that dormant sites cannot be reactivated without warning or proper conditions; and that all mineral permissions will be regularly reviewed in future. I believe it represents a significant step forward while maintaining an equitable balance between the rights of those who hold longstanding, valid planning permissions and the proper protection of the environment and amenity.

In the light of what I have said, and the undertakings I have given, I hope that my noble friend will withdraw his amendment.

Viscount Addison

My Lords, I thank my noble friend for all he said in his very long reply to my two amendments. I would like to study more fully what he said in Hansard tomorrow. In view of all that he said and the helpful way he put the message across, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

[Amendment No.]27 not moved.]

The Deputy Speaker (Lord Murton of Lindisfarne)

My Lords, in Clause 54, Amendment No. 128—standing in the name of the noble Earl, Lord Kintore—and Amendment No. 128A appear to be alternatives. If either of the amendments is agreed to, I would not be able to call Amendments Nos. 128B to 128E inclusive because of pre-emption.

Clause 54 [Contaminated Land]:

The Earl of Kintore moved Amendment No. 128:

Page 45, leave out lines 9 to 15 and insert:

("()"Contaminated land" is any land or interest in land, whether comprising of the surface or of any substratum, mine, mineral or underground space, which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in or on the land, that—

1. (a) significant harm, or
2. (b) pollution of controlled waters,

is being or is likely to be caused.").

The noble Earl said: My Lords, I welcome the attempt that is being made by Clause 54 to clarify and improve the law on contaminated land. I fear, however, that there are serious flaws which, if not corrected, will result in significant prejudice to innocent owners and occupiers.

The amendment seeks, first, to provide that any harm emanating from substances in the land must be significant for the definition of "contaminated land" to be met. There are many situations where substances in the ground—such as normal levels of agricultural pesticides—cause harm to certain organisms, even where the overall effect of the substance in question may be beneficial.

Secondly, the definition of "contaminated land" must be tight enough to ensure that where contamination is in an underground seam or mine which does not belong to the surface owner, the surface owner will not be held liable. The wording of the Bill, which refers to substances under the land, places full liability on owners and occupiers of the surface—even tenant farmers—for contamination in underground mineral seams or mines which belong to someone else. This would place an immediate liability on surface owners for polluted water in disused coalmines. It may be that that is an unintentional effect of the Bill, but it would be highly unsatisfactory and unfair.

The conveyancing theory in both Scottish and English law is that ownership of land has no vertical limits unless these are specified in the title. There is therefore no need to refer to substances under the land because the surface owner is assumed to own everything below ground unless the title says otherwise. There are, however, many exceptions where mines and minerals belong to a third party. In the terms of the Coal Act 1938, all coal mines were vested in the coal commissioners, subsequently the National Coal Board, and now the Coal Authority.

In moving the amendment—which is grouped with others, including government ones—I hope that the Minister will take an early opportunity to give the Government's views. I beg to move.

Viscount Ullswater

My Lords, it may be for the convenience of the House if I were to address the amendments standing in my name on the Marshalled List. By doing so, I hope to be able to explain the Government's intentions. I hope that the House will allow the debate to continue and then, with the leave of the House, perhaps I may wind up at the end.

I am speaking to Amendments Nos. 128C, 128F, 129F, 129G. 135A, 141A, 144D and the others in my name grouped with those amendments. I am pleased to have been able to table the amendments before today's debate. They all relate to the overall definition of "contaminated land" and the process by which it is determined whether individual sites qualify as such. I must of course apologise for their relatively late arrival, and, while I would not normally wish to table amendments so close to the day on which they are to be debated, I felt that it would be better for them to be tabled and debated as soon as they were ready, rather than to leave them until the Bill is debated in another place.

Amendment No. 128C is the most important in this package of amendments, as it adds the qualification that harm must be significant into the definition of "contaminated land". That reflects the Government's original intentions, and our overall "suitable for use" approach. It will also, I believe, meet many of the concerns as to the scope of these provisions raised by noble Lords in our debate on this clause in Committee.

That notion of "significant" harm includes the consideration together of the extent of any harm and of the nature of what might be affected—what is called in the technical jargon, the "target". For some potential targets—human health, for example,—quite small amounts of harm might be unacceptable. But when considering damage to property, as another example, the test might be less stringent.

Moving beyond that, some targets will be disregarded altogether. It is not the Government's intention, for example, to introduce through these provisions new requirements for the protection of habitats and ecological systems over and above those already in place under existing wildlife and habitat legislation.

The second major element of Amendment No. 128C is the new test relating to the "significant possibility" of harm being caused. In deciding whether remediation might be required on any site, a balance needs to be struck between the probability of any harm arising, and the consequences if it does. For example, the chances of methane gas on a site actually resulting in an explosion at any given time may not be all that high, but the consequences of an explosion to people living nearby would be so great as to require action to be taken to reduce even that slight possibility.

The amendment deliberately leaves unchanged the existing test in respect of pollution of controlled waters. That reflects the existing test under water legislation, in particular Section 161 of the Water Resources Act 1991, which can also be used to deal with land which is likely to pollute waters. The Government's intention in including water pollution within the definition of "contaminated land" for the purposes of these provisions was to try to ensure that individual sites did not face dual regulation, and so that a single process could address all of the problems associated with contaminants in the land. That purpose would be frustrated if this legislation sought to impose a different test from that which applies under the water legislation.

The process of determining whether there is, in fact, a significant possibility of significant harm arising on any individual site requires a detailed risk assessment on that site. Amendments Nos. 128F and 135A provide for local authorities to act in accordance with guidance from the Secretary of State with respect to the manner in which they both seek to identify contaminated land and determine whether the land is contaminated. That will ensure that the local authorities act in a technically sound way, reflecting best scientific practice in this area.

Amendment No. 129F provides for guidance to set the parameters within which the questions can be determined as to whether any harm is significant; whether the chances of its occurrence are significant; and whether pollution of controlled waters is likely to be caused. This provides for the guidance to be able to ascribe different degrees of importance to different types of target and different categories of harm. Specifically, it allows for particular descriptions of these to be disregarded, where that is appropriate. We believe that that overcomes the problems of vires identified with the guidance in the original provisions, by the noble Lord, Lord Northbourne, in particular.

There is understandable concern that that important material should be in guidance, rather than on the face of the Bill or set out in regulations. I believe, however, that our approach is the best in the circumstances. The decisions on each individual site will be based on detailed technical judgments, relying on the consideration of a wide range of factors in each case. It would quite simply not be possible to prescribe for all possible circumstances what answers those technical judgments should arrive at. The best that can be achieved is for the parameters of the necessary technical judgments to be set through guidance in accordance with which local authorities must act, and which will be subject to parliamentary scrutiny. That guidance would, in any case, carry strong evidential weight in the courts if any remediation requirements were to be challenged on the grounds that the guidance had not been followed.

A further benefit from the production of that guidance will be to improve certainty in the property market. At present, local authorities are able to use their powers under the statutory nuisance powers in Part III of the Environmental Protection Act 1990 with very little by way of guidance. The guidance under this part, with its strong status, will provide a guide to anyone interested in knowing what might be required of them by way of remediation. That will enable them to plan their property in vestments accordingly.

But aside from those benefits, the guidance will obviously have a central impact on the effect of these powers as a whole. That is why we feel that it is appropriate that it should come from the Secretary of State, and should be subject to parliamentary scrutiny through the negative resolution procedure. That is the effect of Amendment No. 165A.

That amendment also introduces two further requirements with respect to any guidance to be issued by the Secretary of State under this part. First, before it is issued he will have a duty to consult the appropriate agency, and such other bodies and persons as he considers appropriate. And I am happy to confirm that that consultation will be detailed and involve a wide range of interests. Secondly, the amendment states explicitly that any such guidance will be published.

I wish to commend this package to your Lordships. I believe that it provides a technically robust, and legally secure, basis for delivering the "suitable for use" approach which gained widespread support in the responses to our consultation paper Paying for our Past.

4.15 p.m.

Baroness Hilton of Eggardon

My Lords, the late arrival of the amendments on Friday evening makes it difficult to comment upon them in detail. I shall therefore address my remarks largely to the crucial amendment (Amendment No. 128C) which introduces the concept of significant harm.

The Bill as originally drafted had a wide definition of harm to any living organism. That might have caused great difficulty in relation, for example, to the application of pesticides to land, which could have resulted in it being automatically designated as contaminated. However, we are left with the words "significant harm", and their definition will be dependent upon guidance. So, in a sense, although we are slightly further forward, we are not entirely clear about what is intended by that definition of "contaminated land".

Amendment No. 128C appears to be inherently contradictory. The Minister said that it created a balance, but on one side it makes more stringent the definition of "harm", while on the other it introduces the possibility of harm, which widens the provision to the extent that it no longer provides a clear definition of what is contaminated land. One goes from a narrow definition at one end to what might be interpreted as a very broad definition at the other end.

The fact that we do not have the guidance before us makes real comment on the amendments difficult at this stage. I hope that we can obtain an assurance from the Minister that at least the draft guidance will be available when the Bill appears in another place.

Lord Coleraine

My Lords, I rise to speak to Amendments Nos. 128A, 129A and 133A, which stand in my name. They reflect the anxiety of the Law Society that the Bill's definition of "contaminated land" is inadequate. That was recognised by my noble friend in Committee in reply to the noble Lord, Lord Northbourne.

The Law Society's principal criticism of the definition was that it was too wide, requiring action where there was no real risk justifying expenditure. What was the point, for example, of requiring remediation where soil isolated from human contact or from groundwater was toxic to micro-organisms or invertebrates? The amendments in my name operate principally, first, by redefining harm by reference to harm to human health and property; and, secondly, by tempering the protection afforded to micro-organisms and the like by providing that land may be contaminated if it is in such a condition that serious harm to nature conservation interests is being or is likely to be caused.

My Amendment No. 133A would amend the definition of "pollution of controlled waters" so that the definition does not catch the entry into water of solid waste matter or poisonous, noxious or polluting matter in insufficient quantities to have harmful effect.

The amendments in the name of the noble, Lord Northbourne, and other noble Lords—which stand in danger of being partially pre-empted if an amendment is passed before they are called—take a less radical approach to the definition. They provide that proscribed harm must be serious and that harm to malign micro-organisms is permitted. These amendments would still leave an unnecessary and troublesome general protection in place for all other micro-organisms.

I have not been advised by the Law Society as to its views on these eleventh-hour amendments tabled by the Minister. I know that he is on record as considering that "serious harm" is a test that is too restrictive. My immediate thought is that his "significant harm" test is inadequate for reasons of certainty and clarity. It may be that this very lack of clarity has commended itself to the Government as allowing the infiltration of the Bill by further guidance provisions.

The Law Society is anxious about the time that must elapse before all the guidance in respect of contaminated land is promulgated. The timescale will not be bridged in any way when new Section 78R is added to the Environmental Protection Act 1990. The question of contaminated land, in particular where contamination arises in the land of various owners and it is necessary to apportion liability for remediation, is very complex and deserves a parliamentary Bill of its own. A considerable planning blight is already affecting the market and that will not be improved by the inadequacy of this clause as primary legislation so clearly reflected in the perceived need to regulate so much by guidance. I had hoped that the definition of "contaminated land" at least would be on the face of the legislation and not left to guidance.

Lord Stanley of Alderley

My Lords, will my noble friend reply to a specific question? If an area is in a nitrate sensitive zone, can it also be contaminated land?

Lord Northbourne

My Lords, it may be for the convenience of the House if I speak to my Amendments Nos. 128D, 128E, 128G, 129B to 129E, 142A and 144F. They cover the same issues as the amendments tabled by the noble Viscount, Lord Ullswater. I wish to speak separately in turn to Amendment No. 144G, which addresses a slightly different issue.

I welcome the Minister's amendments. They do much to address the anxieties of the House on the definitions of "contaminated land" and "harm", which I raised in Committee. The outstanding problem is that we do not know what the guidelines will state. Will the Minister assure the House that the Government will recognise the point made by the CBI? It stated:

British industry and the current owners of industrial land have the legacy of roughly 200 years of industrial activity since the start of the Industrial Revolution. The total cost of remediation far exceeds the capacity of one generation to provide the requisite resources. Inevitably, this raises questions of priority. In some cases, the contamination may represent a significant risk calling for urgent action. But in many cases the contamination is contained and presents little risk".

I am not too happy about the Minister's comments on the pollution of controlled waters. If one refers to serious harm but the word "serious" is not used in defining polluted waters, it may mean that the pollution of waters must be taken as an absolute issue. "Pollution of controlled waters" is defined at the top of page 48 of the Bill. It refers to:

any poisons ... or any solid waste matter",

which may be going into the water. That is a tough definition and I ask the Minister to reconsider whether a modification of the definition of "pollution of controlled waters" should he built into the Bill.

The Earl of Kinnoull

My Lords, I support what was said by the noble Lord, Lord Northbourne. I too congratulate my noble friend on the amendments that he has brought forward. However, I have a question about the guidance. When will the draft guidance be published? The timing appears to be out. One has the framework of the Bill; but the guidance, which will be at the nub of the issues, is to follow. Contaminated land is a critical issue and I hope that my noble friend will he able to give a timescale for the publication of the guidance.

Lord Elton

My Lords, I feel like a dowager at the edge of a ballroom, having many years ago sat in my noble friend's office and long since finished dancing the minuets that he is forced to dance before Parliament. However, I wish to reassure my noble friend on one matter. On Friday, he had a difficult decision to make; whether to table the amendments and suffer your Lordships' indignation because they had insufficient time to digest them or not to table the amendments and suffer your Lordships' indignation because they would not be discussed in this House before going to another place. I believe that he took the difficult but correct decision. Third Reading is scarcely the opportunity for a technical debate; but, in any case, I cannot conduct an exchange with seated Members of your Lordships' House.

I repeat that I believe that my noble friend made the right decision. He appears to have met a large majority of the anxieties that were expressed at an earlier stage. Any residual anxieties can be discussed later, and I hope that your Lordships will accept the amendments.

The Earl of Lytton

My Lords, I too believe that, notwithstanding the conventions, the Minister made the right decision in tabling the amendments. They have gone a long way towards allaying some of the fears expressed about the way in which the Bill will operate in practice. I welcome the amendments because they represent a clear sign that some of the anxieties have been heard. Certainly they deal with many of my own anxieties about the Bill.

I support what was said by the noble Lord, Lord Northbourne, and the noble Earl, Lord Kinnoull, about the need to know what will be in the guidelines. It is necessary for the House to have a reasonably full explanation of them so that, before the Bill goes to another place, we can reach a considered opinion on its impact. That is not in any way to seek to pre-empt the necessary discussions in which the Government must engage with others about how the matter is to be implemented. Otherwise, it seems to me that we are firing blind. That is extremely unsatisfactory bearing in mind the overriding need, as pointed out in the quotation from the CBI given by the noble Lord, Lord Northbourne, to remedy a long legacy of contamination. We need to get it right, and we need to know what the guidance will contain.

4.30 p.m.

Viscount Ullswater

My Lords, despite a certain amount of reservation from the Benches opposite, I am pleased to be able to introduce the amendments. I believe that they move us more than slightly further forward, which was the phrase used by the noble Baroness, Lady Hilton.

The main effect of Amendment No. 128 would be to specify that contaminated land includes any land or interest in land so that it covers specifically sub-strata and mines. It would also introduce the test of significant harm being, or likely to be, caused.

Amendments Nos. 128A and I 29A proposed by my noble friend Lord Coleraine seek to amend the definition of contaminated land so that different tests would apply to different categories of target which may be affected by the harm arising from the contamination. That is broadly in line with the Government's intentions, as I indicated in my earlier comments.

I understand that my noble friend has not had sufficient time to take proper advice from his advisers because of the lateness of the tabling of the amendments. I hope that when he has had the opportunity to study them, he will see that they go a long way towards allaying his anxieties.

The formulation adopted in the amendments of my noble friend reflects in particular the widespread anxiety about how the existing definitions in the Bill address damage to habitats and ecological systems. While it was not the Government's intention to introduce new protections in those areas which do not exist under other legislation, it was argued that that would be the effect of existing provisions. We have sought to remove those problems through government amendments which I shall move.

However, I suggest that the amendments of my noble friend Lord Coleraine and the noble Earl would not achieve the goals set for them. First, they would leave an essentially subjective test of serious harm to nature conservation interests. That is probably still too broad in many respects .as it fails to distinguish between those aspects of nature conservation which need to be protected under those powers and those which do not.

Conversely, the test of any harm to nature conservation interests having to be serious is potentially too narrow and restrictive where particular habitats and organisms need protecting. In some cases, that test of serious harm would not enable us to meet our European obligations, in particular in respect of those sites we are required to protect under the habitats directive.

Amendment No. 133A seeks to amend the definition of pollution of controlled waters. The noble Lord, Lord Northbourne, asked whether the test for polluting controlled waters is made more stringent by the Bill. Sites would still be open to regulatory action under Section 161 of the Water Resources Act 1991, which includes the test as currently included in those contaminated land provisions. Therefore, there is no change.

My noble friend Lord Kinnoull and other noble Lords indicated that they wish to see the guidance and asked when it will he available. The Government intend to publish an outline of the guidance on the question of significant harm before the Bill reaches Committee stage in another place. I agree with my noble friend Lord Elton that it would not be suitable to discuss that in detail on Third Reading. It will have to be draft guidance because apart from saying that we shall publish it we have said that we shall consult widely on it.

My noble friend Lord Stanley of Alderley asked a direct question about nitrate sensitive areas. I shall need to take further advice to be specific about that but I stress that this relates to pollution of controlled waters. Our intention is not to increase existing liabilities under the legislation. We are considering whether our present provisions achieve that particular state. Therefore, having had the opportunity to reply to noble Lords in relation to amendments which have been moved and spoken to, I ask the noble Earl, Lord Kintore, to withdraw the amendment.

The Earl of Kintore

My Lords, I thank the Minister for his helpful reply. I thank him also for tabling the government amendments which I shall study carefully. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 128A not moved.]

Lord Williams of Elvel moved Amendment No. 128B:

Page 45, line 9, at beginning insert: ("Subject to subsection (2A) below").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 128H, 170 and 174. I shall speak to those other amendments because they form part of a package, as I propose to explain.

There is a general problem of pollution from abandoned mines. That is recognised and I do not wish to go into detail or repeat the arguments which have taken place in your Lordships' House both during the passage of the Coal Industry Bill and also in Committee on this Bill. The severity of the problem has been illustrated by several bodies and studies, not least the review of November last year by the Department of the Environment.

Of course, the problem is not confined to abandoned coal mines. Metalliferous mines are affected also. They have the same toxic effects and are liable to pollute waters. As the Minister said in Committee, there is a somewhat anomalous legal position about who should or might be responsible for pollution caused by water from abandoned mines.

The Coal Authority, I understand, deals with abandoned coal mines, although the remit of the authority is not entirely clear. There are also abandoned metal mines. It is not clear from the regulations who is meant to deal with the pollution which arises or may arise from them. There are various categories of abandoned mine which have been dealt with by different bodies as and if problems arise. I do not wish to deal with the Coal Authority; it is the subject of a later amendment to he moved by my noble friend Lady Hilton. I wish to deal specifically with the amendments which I have placed before your Lordships.

In my view, there are two categories of abandoned mine. There is the category of existing abandoned mines, if I may use that expression; that is, mines which have already been abandoned and which constitute a threat. Those may be coal mines—many of which have been closed down over the past few years—or they may be metal mines of one kind or another.

The second category is mines which may be abandoned after the Bill becomes an Act. That is a slightly different category. I propose to deal with the two categories in that order.

So far as concerns existing abandoned mines, my amendments would ensure that any mine abandoned during the period between the date of Royal Assent of the legislation and the date from which the defence provided by Section 89(3) of the Water Resources Act 1991 ceases to apply should be treated as contaminated land. As we know, there are several procedures for the mediation of contaminated land which will apply even if the amendments that the Government are about to move—and which I imagine your Lordships will accept —are put into the Bill.

There is no intention in our proposal that the definition of "contaminated land" would normally apply to land under which abandoned mines are situated; indeed, it is not intended that any such question should be raised. All that matters is that the definition would refer to such land during the period specified irrespective of whether it did so otherwise. In other words, during that very limited period —and I shall say later just how limited that should be—the abandoned mine or mines would be treated as contaminated land.

I recognise that that proposal is a short-term solution. However, it is designed simply to ensure that there is no hole through which anyone can escape. In a way, it is a half-way house. It is so for two reasons. First, it is designed to give the Government time to determine what the role and, indeed, the funding of the Coal Authority should be; in other words, what should be the long-term solution for existing abandoned coal mines. We have heard many ministerial statements in that respect, but there is substantial doubt about the role and funding of the Coal Authority. Secondly, it would allow the Government to decide what to do about existing abandoned metal mines for which, at present, there appears to be no solution.

I turn now to the second category. So far as concerns any mines abandoned between Royal Assent and the date from which the defence against polluting controlled waters ceases to apply, they would be treated as contaminated land. But, again, I recognise that that is not an ideal solution. It is another holding situation. It is a holding situation which leads to the conclusion—and, because it is so, it should not last too long—that the date upon which the defence ceases to apply should be brought back and that it should not be a five year business. We believe that it should be put back to 1st January 1996. That is the object of Amendments Nos. 170 and 174.

At that point—if our proposal is adopted—the situation would become quite clear both for coal mines and for metal mines which are subsequently abandoned. Therefore, the amendments which I am putting before the House all hang together. They provide, first, an intermediate holding situation to what I acknowledge to be a difficult problem. They would allow space for the Government to come out into the open, if I may put it that way, on the Coal Authority's funding, and on its responsibilities, and on their proposals to deal with existing abandoned mines of other minerals. The Government could use that period to declare their hand.

The amendments also allow a new structure of responsibility to start operating from the date at which it should and not five years hence. As such, the amendments form a package which I hope will commend itself to the House. I beg to move.

4.45 p.m.

Lord Mason of Barnsley

My Lords, I should like to speak to Amendment Nos. 170 and 174. I believe that the Government must now be aware of the dismay that met their proposal in the coal legislation that effective legal responsibility on mine waters from abandoned mines would not come into force until 1999. The amendments seek the immediate abolition of the defence available to the owner of an abandoned mine and would not allow the defence to continue for another five years.

When the Bill was introduced to the House, noble Lords will remember that there was, in the Explanatory and Financial Memorandum, a special passage marked "Abandoned mines" which said:

Since these proposals are coming forward in parallel with the privatisation of the coal industry, there could be some adverse effect on proceeds to the Government. Accordingly, the removal of the statutory protections is being timed to reduce any possible effect".

In my opinion, that is the Government blatantly admitting that the reason for the delay in abolishing the defence is to reduce the possibility of an adverse effect on the proceeds of privatisation of the coal industry. Therefore, they have given a five-year safeguard. I find that quite incredible. It is a total disregard for the environment and for the likely pollution problems emanating from the cessation of pumping at abandoned mines.

Local authorities and National Rivers Authority regional officers in the coalfields are aghast. They fear the pollution of rivers and lakes allied with no responsibility being placed on the owner of an abandoned mine. The all-party Coalfield Community Campaign has expressed its concern that the Government's intention has been to maximise the proceeds from the sale of the coal industry and not the need to protect the environment of mining areas. That is a charge which should be answered.

The Government must be aware of the NRA report, Abandoned Mines and the Water Environment, which was published in March last year. It 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 alone, the report states that there are 134 kilometres of surface waters polluted from 110 discharges in the Clyde and Forth catchment areas alone.

If existing pumping by the Coal Authority were to stop before 31st December 1999, the length of polluted rivers would extend greatly and threaten some of our rivers of national importance. It also seems relevant that the Coal Authority, which is at present continuing to pump in areas such as Durham, South Wales and Yorkshire (where mines have already been abandoned), might become criminally liable if it stopped pumping, whereas it might not if, as proposed, there is a five year delay in abolishing the defence.

The Secretary of State for the Environment described the latter as "unique statutory exemptions". Well, of course, they are: they are favouring the potential polluters. The Government have given a commitment that the responsibilities of British Coal and the historical legacy of mining would be taken on by the new Coal Authority. Therefore, is it not unfair and unjust that the authority may be able to shelter behind that exemption in favour of abandoned mines? So far as concerns water pollution or even potential water pollution, there can be no doubt: the Government should not be content to rest on the present effect of the exemptions. If the existing rules remain, particularly on minewater pollution, private mine owners would have few environmental liabilities. The public sector would be placed in the position of having to clean up the pollution caused by privately operated mines. Moreover, what of the principle that the "polluter pays"? In those cases, the public would pay.

The Bill also fails to address the problems of long-time abandoned mines where pollution is already occurring. That is a problem, and a most worrying one, which faces mining communities. It concerns us that the legal loophole is to be removed only for coal mines abandoned up to the end of 1999.

There are approximately 23 former British Coal mines left, but scores of pits have been closed in recent years, with all the worries about cessation of funding. The Bill does not demand that, on abandonment, mine operators contribute to environmental protection costs or take account of the environment when they abandon a mine.

The Minister said:

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".—[Official Report, 31/1/95; col. 1484.)

Again it is a question of financial implications. So the Government remove a potential environmental liability and aid the sell off, irrespective of the pollution problems that might flow from cessation of pumping from an abandoned mine.

The truth is a disgraceful disregard of the looming environmental problems likely to hit our coalfield communities on top of the environmental degradation that we have suffered over the years from burning muckstacks, opencast coal mining, tipping sites and general industrial pollution. All of that is on top of the heartless mass closures of our coal mines, the massive rise in unemployment and wholesale misery in our mining villages. It is just not on.

I say therefore, on the environmental plane alone, that our people are worthy of a better, cleaner way of life. Mine water pollution of our rivers and reservoirs from abandoned mines will certainly affect the quality of life. Yet there is no sanction on private owners; they have no liability until after 1999. I believe that they should come under a legal statutory sanction immediately.

Also, the Coal Authority must not shelve its responsibility for its working mines by hiding behind this five-year exemption. It must be aware of its responsibilities for the countless numbers of abandoned mines in all our coalfields and the increasing dangers of pollution outbreaks from these old mines. There is a fear of a series of major pollution incidents from mine water discharges. The National Rivers Authority report identifies many significant water quality problems, including serious discharges from abandoned mines: 15 in Northumbria, 24 in the North West, four in Severn Trent, 21 in Wales and 36 in Yorkshire. There are over 10,000 abandoned mines, many containing pollution time bombs. We have already had a series of frightening reminders and there are likely to be many more. The Coal Authority, in alliance with the NRA, must start tackling those outbreaks.

Finally, the Coal Authority, now the owner of and responsible for all abandoned mines, should be required by statute to prevent, control and treat pollution from its abandoned mines regardless of when they were abandoned. Money should be afforded to the authority from the £1,000 million from coal mine sales and the moneys, estimated at £500 million, that will be made from the forthcoming land sales.

There is always a price to pay to protect the environment and to avoid environmental damage. The Government should now recognise their responsibilities in this regard and abolish the five-year defence for all mines and provide the moneys to the Coal Authority to help it protect our coalfield communities from these environmental dangers.

Lord Crickhowell

My Lords, the noble Lord, Lord Mason, speaks with vast authority on these matters. The House will understand why we miss his formidable contribution to the affairs of the NRA.

I do not need to add much to what the noble Lord said about the five-year gap before the removal of the defence afforded by Section 89 of the Water Resources Act 1991. He quoted the comments of my noble friend Lord Ullswater on 31st January. He did not quote an introductory remark by my noble friend, when he said that the 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".—[Official Report. 31/1/95; col. 1484.]

The noble Lord, Lord Mason, spoke of the impact and the financial implications and whether that was a good reason for acting. However, we are faced with a dilemma. While there are clearly financial implications, if this measure is of great significance as a means of improving the quality of discharges, then one needs a good reason for delaying its introduction. The delay causes me concern.

There are other matters which also worry me. My noble friend Lord Strathclyde, speaking as long ago as 26th April 1994, made it clear that the Coal Authority will be the owner of abandoned mines throughout Great Britain irrespective of when they may have been worked. There comes a point when the Coal Authority takes over responsibility. But, as the noble Lord, Lord Williams of Elvel, reminded us, there are not only coal mines to worry about, there are also metalliferous mines. He said that metalliferous mines could be just as polluting as coal mines. In reality they may well cause greater pollution. Our experience, certainly for example with the Wheal Jane tin mine, is that the "nasties" that they release may be a great deal nastier than those normally experienced with coal mines.

There is a serious anxiety to be addressed here. If the Coal Authority is to pick up the responsibility for coal mines it is by no means clear where responsibility for metalliferous mines is to lie or from where the resources for dealing with the problem are to come.

While it may be important that the removal of the defence is postponed for five years, there is a longer-term problem which also needs to be addressed. The Bill does not give the agency any new powers to require action to be taken to deal with already abandoned mines or mines that may be abandoned up to the year 2000. Essentially, the agency will have to continue to rely on the existing legislation and on non-statutory memorandums of understanding.

We need an answer to the question as to what route the Government think should be taken to deal with old, orphaned metalliferous mines. I do not pretend that it is an easy problem. The costs can be very great, as we discovered with Wheal Jane. It would at least be helpful if we had some indication from the Government as to how they think the problem might be tackled.

There is also one further issue which concerns me. It is the relationship of the legislation we are proposing to put in place with the directives of the European Union. Perhaps I would test my noble friend a little severely if I asked him to give me an immediate answer, but I should be grateful if at some stage he could say what is the legal position with regard to the dangerous substances and ground water directives. It is by no means clear to me whether coal or metalliferous mines are exempted from those directives. If they are not, how is it that the Government can allow the exemptions from the Water Resources Act to continue until the end of the century? It seems possible at least that the Government are opening themselves to the risk of challenge in the European Court. It is therefore not just a question of a gap. There is the real possibility of a conflict between our own and the European legislative position.

These are difficult issues. We have to face the fact that the costs of dealing with the problems can he great. I would be the first to argue that we have to choose our priorities, and to choose them with care. I do not for one moment argue that the new agency, or the Government, should be expected to rush in to deal with the discharge from every closed mine. There are mines which have been discharging discolouring water, often for centuries, without causing serious damage. Indeed, there are red rivers all around this country and the world. There are great companies—I refer to Rio-Tinto Zinc—named for that very reason. However, specific rivers which are affected by coal mine closure, and other metalliferous rivers, involve a very real threat and danger. We need some indication from the Government on how they intend to address the problems.

I conclude by reminding the House that the noble Lord, Lord Strathclyde, took us a considerable step forward in giving the commitments that he gave at an earlier stage about the role of the coal authority and the role that the Government envisage for the coal authority in tackling mines that have been abandoned.

5 p.m.

The Earl of Onslow

My Lords, I wish to muse for a small moment of time on the contrast between exemptions given to disused mines and the absolute offence of the pollution of a river by a private person or a private company, however good the defence is. It seems to me that a difference in values is being applied here.

Baroness Hamwee

My Lords, in supporting the group of amendments, I make one comment. The Government took a welcome step forward on the last day of the Report stage when dealing with environmental costs and benefits. They accepted that in that context costs include costs to the environment and not only the cash costs to individuals. It would be helpful and welcome if that principle could be applied to this serious issue. The Government's thinking having moved forward, I hope that the particular as well as the general provision will illustrate that.

Lord Peyton of Yeovil

My Lords, I have no idea what my noble friend will say in reply to the debate. However, I hope that the words spoken by the noble Lord, Lord Mason, will receive particular attention. Those who live in the mining areas have strong feelings. Whatever difficulties the Government may have, or however the Government may feel, those who live in the mining areas feel that they have been treated shabbily and that their interests have not been taken into account. If I may say so, I thought that the noble Lord, Lord Mason, put the point with great restraint and effectively. I very much hope that his words will be carefully weighed.

Viscount Ullswater

My Lords, we have leapt from an amendment on the definition of contaminated land, which the noble Lord, Lord Williams, moved to redefine abandoned coal mines as contaminated land, into abandoned mine provisions which are the subject of Clause 55. Although I should like to reply to the noble Lord, Lord Mason, and to my noble friend Lord Crickhowell, it would probably he as well not to go into too much detail because we shall go over the issue substantially on the amendment in the names of the noble Lord, Lord Williams, and the noble Baroness, Lady Hilton, on abandoned mines.

Lord Williams of Elvel

My Lords, I am sorry to interrupt. However, if the House proposes to accept the amendment, we shall not move those amendments. I regard the group as a package.

Viscount Ullswater

My Lords, my noble friend Lord Crickhowell indicated from my remarks at Committee stage that the provisions in Clause 57 represented a significant step. Coal owners have had the exemption now enshrined in the Water Resources Act 1991 since 1875. Therefore to end an exemption is quite a significant step. People have relied on that exemption for 120 years. That is one of the reasons why the amount of time is considered to be important: that we should not make such change right away but allow a certain amount of time for the industry to get used to the change in values.

The amendments moved by the noble Lord, Lord Williams, would affect the potential overlap between these contaminated land provisions and the separate legislation concerning water pollution from abandoned mines.

As noble Lords may be aware, Clause 57 removes, for mines abandoned after 31st December 1999, the defence against prosecution and the exemption from recovery of costs by the agency in cases where polluting water is permitted to flow from an abandoned mine.

It was no part of the Government's intention that the current clause, establishing the contaminated land powers, would have the effect of removing the existing defence and exemption which apply in the circumstances. However, that appears to have been the inadvertent result of the existing provisions in the Bill, and the Government will be bringing forward an amendment at a later date to rectify this.

The amendments in the name of the noble Lord, Lord Williams. would point in the opposite direction, however. Not only would they remove outright the existing defence and exemption, they would also provide that any abandoned mine would be treated as contaminated land as a matter of definition, no matter when it was abandoned. This would apply regardless of whether the mine was actually causing, or likely to cause, significant harm or the pollution of controlled waters. However, it would still place local authorities under a duty to serve remediation notices in respect of those mines.

This somewhat strange provision would then just as strangely lapse at the end of 1999, when the existing defence and exemption concerning permitting water from abandoned mines to enter controlled waters ceases to have effect for any mines abandoned after that date.

Instead of removing the statutory protections from 31st December 1999 in cases where water is permitted to flow from an abandoned mine, Amendments Nos. 170 and 174 in the name of the noble Baroness, Lady Hilton, would instead remove them for mines abandoned after 1st January 1996.

We consider that removal of the defence and the exemption will contribute towards the control of pollution from mines which are abandoned in the future. It is, however, a significant change which may create new potential liabilities and also has practical implications for existing owners and operators of mines. It is also possible that some land values will have taken account of the existence of the statutory protections. For those reasons we have allowed a period for adjustment in setting the date for their removal.

The noble Lord, Lord Mason of Barnsley, commented on the impact of Clause 57 on the proceeds from the privatisation of the coal industry. I am grateful to the noble Lord for giving me an opportunity to correct the impression that has been gained from the financial memorandum. It is obvious—I do not for a moment attempt to deny it—that proposing new legal liabilities affecting mine owners and operators in particular could have an adverse effect on privatisation and proceeds. Equally, it is obvious that the impact is likely to be larger if the industry is given less time to adapt to those new legal provisions.

However, the memorandum should not be read as meaning that this was the only or even the principal reason for choosing 31st December 1999 as the date after which the amended regime would take effect. But to lay to rest any suggestion that the Government have put privatisation proceeds above the proper protection of the environment, I point out that the arrangements under which British Coal's mines were privatised incorporate important safeguards in respect of any future abandonment. Under those arrangements, the mine operator has to give the Coal Authority six months' notice of any proposed abandonment and a report on the consequences, except in the case of real emergency.

As regards the consequences for the water environment, the report is to be based on consultation with the appropriate regulator, the agencies or the present bodies. The operator then has to take all steps necessary to ensure that the mine can be returned to the authority in a satisfactory condition; that is, a condition which does not expose the authority to future liability. If necessary, the operator would have to make an appropriate payment to the authority for any continuing cost before he could relinquish the lease. Any fair-minded person will agree that those measures, which are the basis on which the mines were privatised, anticipate to a large degree the new responsibilities which will be introduced with more general effect through the Government's proposals in the Bill. Consequently, any remaining impact on privatisation must be small.

The noble Lord, Lord Mason, said that he believed that the pollution from coal mines affected a considerable mileage of controlled waters. I am sure that my noble friend Lord Crickhowell would confirm that the latest NRA survey shows that pollution from abandoned mines currently affects only 1.5 per cent. of river length in England and Wales, and that only 0.5 per cent. is polluted by abandoned coal mines. So my noble friend's supposition is right. Pollution from other metalliferous mines is more damaging than from coal mines, at least on a percentage basis of the waters.

I understand the anxiety put forward by my noble friend Lord Peyton that these are important matters. We would not wish to minimise the problems. However, I have indicated that the steps we propose to take are significant and I suspect that we shall discuss them later this evening. We need to consider what my noble friend Lord Crickhowell said about the EC directives on dangerous substances and groundwater. We need to ensure that we do not fall foul of directives. However, I indicated that I do not wish to accept the amendment proposed by the noble Lord, Lord Williams, because of the difficulties it poses. I therefore ask him to withdraw it.

Lord Williams of Elvel

My Lords, I am grateful to the noble Viscount for his exposition of the reason why he does not feel that the amendments are appropriate. First, I emphasise that they form a package. I have said that three times and I say it again. I do not wish to convey the impression to noble Lords that a provision designating abandoned mines as contaminated land would last five years. I regard that as an intermediate solution, except for metalliferous mines, to which the noble Lord, Lord Crickhowell, drew our attention. I agree with him that at the moment there is no provision for dealing with metalliferous mines which have already been abandoned. We shall not oppose the government amendments about guidance on dealing with contaminated land. Dealing with metalliferous mines might well be included in that framework, perhaps in the form of guidance to local authorities or something similar.

I said at the outset that I believe that there is a real and immediate problem. I have heard many reasons for the Government wishing to postpone action for five years and I accept the noble Viscount's assurance that privatisation proceeds are not the only matter. We had the reason that the Government wanted to allow mine owners time to adapt to change. Another reason was the wish to allow land values to adjust. We now have the explanation that the exemption has existed for a long time and that we must give it time to run out so that everyone can accept that it no longer exists.

I do not believe that any of the explanations address the problems set out with great effect and sincerity by my noble friend Lord Mason of Barnsley. There is a real threat and danger. The coal mining communities and the metal mining communities have suffered and will continue to suffer. I do not believe that the Government have taken matters as seriously as they should. This is the time to introduce a package and for noble Lords to take the matter in hand and say to the Government, "This is what we want". We wish to ensure that the future of areas where pollution has been caused by industrial and mining activities is protected and the effects mediated soon. For that reason, I wish to ask the opinion of the House. I commend the amendment.

5.15 p.m.

On Question, Whether the said amendment (No. 128B) shall be agreed to?

Their Lordships divided: Contents, 105; Not-Contents, 175.

Division No. 1
CONTENTS
Acton, L	Fisher of Rednal,
Addington, L	Freyberg, L
Airedale, L	Gallacher, L
Archer of Sandwell, L	Gladwin of Clee, L.
Ashley of Stoke, L.	Gladwyn, L
Barnett, L	Glasgow, E.
Beaumont of Whitley, L.	Glenamara, L.
Blackstone, B.	Gould of Pottemewton, B.
Bottomley, L	Graham of Edmonton, L[Teller.]
Brooks of Tremorfa, L.
Bruce of Donington, L	Gregson, L.
Callaghan of Cardiff, L	Grey, E.
Carmichael of Kelvingrove, L.	Halsbury, E
Cledwyn of Penrhos, L	Hamwee, B. [Teller.]
Clinton-Davis, L.	Hams of Greenwich, L
Cocks of Hamliffe, L.	Haskel, L.
Crook, L	Hilton of Eggardon, B.
Darcy (de Knayth), B.	Hollick, L.
David, B.	Hollis of Heigham, B.
Dean of Thomton-le-Fylde, B.	Holme of Cheltenham, L
Desai, L	Hooson, L.
Diamond, L.	Howie of Troon, L
Donoughue, L.	Hughes, L
Dormand of Easington, L.	Jay of Paddington, B.
Elis-Thomas, L	Jeger, B.
EnnaIs, L.	Jenkins of Putney, L
Falkender, B.	Judd, L.
Falkland, V.	Kilbracken, L.
Farrington of Ribbleton B.	Kintore, E.

Lester of Home Hill, L	Rochester, L
Lockwood, B.	Seear, B.
Longford, E.	Sefton of Garston, L
Lovell-Davis, L	Serota, B.
Mallalieu, B.	Shaughnessy, L
Mar and Kellie, E	Sheffield, Bp.
Mason of Barnsley, L.	Shepherd, L.
McIntosh of Haringey, L.	Stedman, B.
McNair, L	Stoddart of Swindon, L
Merlyn-Rees, L	Strabolgi, L
Milner of Leeds, L.	Taylor of Gryfe, L
Molloy, L.	Thomson of Monifieth, L
Monksweli, L	Tope, L
Morris of Castle Mortis, L	Tordoff, L
Mulley, L.	Varley, L.
Nicol, B.	Wallace of Coslany, L
Ogmore, L	Walpole, L
Parry, L.	Wedderbum of Charlton, L
Pesten, L	Whaddon, L
Prys-Davies,	L White, B.
Rea, L.	Williams of Crosby, B.
Redesdale, L.	Williams of Elva L
Richard, L.	Williams of Mostyn, L
Robson of Kiddington, B.	Winchilsea and Nottingham, E

NOT-CONTENTS
Aberdare, L	Elles, B.
Abinger, L.	Elliott of Morpeth, L
Addison, V.	Elton, L
Ailsa, M.	Erne, E.
Alexander of Tunis, E.	Faithfull, B.
Ampthill, L	Flather, B.
Annaly, L	Fraser of Carmyllie, L
Archer of Weston-Super-Mare, L.	Gage, V.
Astor of Hever, L.	Gainsborough, E.
Belhaven and Stenton, L.	Gardner of Parkes, B.
Birdwood, L	Gilmour of Craigmillar, L.
Blaker, L	Gisborough, L
Blatch, B.	Goschen, V.
Blyth, L	Gray of Contin, L.
Boardman, L	Grimston of Westbury, L
Borthwick, L	Hampden, V.
Boyd-Carpenter, L.	Harding of Petherton, L.
Brabazon of Tara, L	Hardinge of Penshurst, L
Braine of Wheatley, L.	Harmar-Nicholls, L.
Brougham and Vaux, L	Harrowby, E.
Bruntisfield, L	Hayhoe, L
Burnham, L.	Henley, L.
Burton, L	Hertford, M.
Butterworth, L.	Hesketh, L
Cadman, L.	Hogg, B.
Caithness, E.	Holderness, L.
Campbell of Alloway, L.	HolmPatrick, L
Camegy of Lour, B.	Howe, E.
Carnock, L	Hylton-Foster, B.
Cavendish of Furness, L	Inchcape, E
Chalker of Wallasey, B.	Inchyra, L
Charteris of Amisfield, L.	Inglewood, L. [Teller]
Chelmsford, V.	Jenkin of Roding, L.
Chesham, L.	Johnston of Rockport, L
Clanwilliam, E.	Killearn, L.
Clinton, L	Kimball, L
Coleraine, L	King of Wartnaby, L.
Courtovm, E.	Kinloss, Ly.
Cox, B.	Kinnoull, E.
Cranborne, V. [Lord Privy Seat]	Knutsford, V.
Crawshaw, L.	Lindsay, E
Cross, V.	Long, V.
Cumberlege, B.	Lucas of Chilworth, L.
Davidson, V.	Lucas, L
Dean of Harptree, L.	Lyell, L.
Denham, L	Mackay of Ardbrecknish, L
Denton of Wakefield, B.	Mackay of Clashfem, L. [Lord Chancellor.]
Dundee, E.
Dunrossil, V.	Macleod of Borve, B.
Elibank, L	Mancroft, L
Ellenborough, L.	Manton, L.

Marlesford, L	Renfrew of Kaimsthorn, L
McColl of Dulwich, L	Renton, L.
McConnell, L	Renwick, L.
Melville, V.	Rodger of Earlsferry, L.
Mersey, V.	Romney, E
Miller of Hendon, B.	Saint Oswald, L.
Milverton, L	Saltoun of Abernethy, Ly.
Monckton of Brenchley, V.	Sandford, L
Monk Bretton, L.	Savile, L.
Monson, L.	Seccombe, B.
Monteagle of Brandon, L.	Sharpies, B.
Morris, L.	Shaw of Northstead, L
Mottistone, L	Shrewsbury, E.
Mountevans, L.	Skelmersdale, L.
Mowbray and Stourton, L	Soulsby of Swaffham Prior, L.
Moyne, L.	Stanley of Alderley, L.
Munster, E.	Stewartby, L.
Murton of Lindisfarne, L.	Strathcarron, L
Newall, L.	Strathclyde, L [Teller]
Norfolk, D.	Strathcona and Mount Royal, L
Nome, L.	Strathmore and Kinghorne, E.
Northbourne, L	Sudeley, L.
Northesk, E	Swinfen, L.
O'Cathain, B.	Thomas of Gwydir, L
Orkney, E.	Trefgarne, L.
Orr-Ewing, L.	Trumpington, B.
Oxfuird, V.	Tugendhat, L.
Park of Monmouth, B.	Ullswater, V.
Pearson of Rannoch, L	Vinson, L
Pender, L	Wade of Charlton, L
Peyton of Yeovil, L	Wharton, B.
Plummer of St. Marylebone, L.	Willoughby de Broke, L
Prior, L	Wise, L
Quinton, L.	Wolfson, L.
Rankeillour, L	Wynford,
Rawlings, B.	Young, B.
Reay, L.	Zouche of Haryngworth, L

Resolved in the negative, and amendment disagreed to accordingly.

5.26 p.m.

Viscount Ullswater moved Amendment No. 128C:

Page 45, leave out lines 13 to 15 and insert:

1. ("(a) significant harm is being caused or there is a significant possibility of such harm being caused; or
2. (b) pollution of controlled waters is being, or is likely to be, caused;").

The noble Viscount said: My Lords, I spoke to this amendment when the noble Earl, Lord Kintore, spoke to his Amendment No. 128. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. I28D and 128E not moved.]

Viscount Ullswater moved Amendment No. 128F:

Page 45, line 15, at end insert:

("and, in determining whether any land appears to be such land, a local authority shall, subject to subsection (8A) below, act in accordance with guidance issued by the Secretary of State in accordance with section 78R below with respect to the manner in which that determination is to be made.").

The noble Viscount said: My Lords, I spoke to this amendment together with Amendment No. 128C. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 128G and 128H not moved.]

Viscount Ullswater moved Amendment No. 128J:

Page 45, leave out lines 16 to 18

The noble Viscount said: My Lords, I also spoke to this amendment with a previous one. I beg to move.

On Question, amendment agreed to.

[Amendment No. 128K not moved.]

Lord Crickhowell moved Amendment No. 129:

Page 46, line 6, leave out ("a closed landfill site") and insert ("contaminated land").

The noble Lord said: My Lords, I now return to a group of amendments which were moved by my noble friend Lord Mills at an earlier stage. They are in exactly the same form as that in which they were debated in Committee. My noble friend and I are continuing to ensure that highly contaminated sites, which may well not be closed landfills, may be open to designation as special sites, and thus fall within the remit of the agency, which should have the expertise and the resource to deal with sites of this kind.

Replying to a number of amendments put down at the earlier stage, including one by my noble friend Lord Lucas of Chilworth, my noble friend the Minister indicated that the Government felt that they were justified in paying particular attention to closed landfills because they presented:

"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".

I quote from my noble friend's response in Committee on 31st January.

My noble friend also made it quite clear that the Government were willing to consider the question of expanding the range of sites that could potentially be designated as special sites. But he wanted to have a clear idea:

"of why the agency would be better qualified to regulate those other sites than would the local authorities".—[Official Report, 31/1/95; col. 1437.]

He indicated that he did not believe that the case had been adequately made.

Without making the case by way of examples, it seems almost on grounds of principle that there is a fairly strong argument. It is very hard to see why sites such as a closed steelworks or gasworks—to take two obvious examples—which may have been closed for decades or even longer, are likely to create less of a problem than the closed landfill sites. It is clear that such sites may well require the kind of skills possessed by the agency.

I could produce a long list of examples but I do not want to detain the House for too long. Certainly I could let my noble friend have a longer list than I shall give the House tonight. Let me give just two examples. One is a former chemical works. It is a property that had been a chemical factory since the 1960s and used for the production of pesticides and other products. The chemicals had been stored on site in drums and packages, many of which had been buried. The NRA, and possibly its predecessors, and the local waste regulation authority had been chasing the company for some considerable time to do something about the storage of those chemicals.

Then, in 1993 the site caught fire. Some of the water used to extinguish the fire inevitably soaked into the ground. Subsequent investigation by the NRA revealed ground water contamination which had spread at least one kilometre from the site. Much of that contamination is considered to be long term, and the problems of dealing with it have been hampered by the fact that there is no one authority with responsibility for the whole site; and the local authority has neither the resources nor the expertise to deal with the problems which have been encountered there. Under the provisions of the Bill as they currently stand, that site would be designated as contaminated land only and in the absence of an owner to pay for any remediation, the cost would ultimately reside with the local authority, which has already proved unable to deal with the issue.

Let me give another example with which I am familiar. I visited the site very soon after the NRA was set up. It is waste ground in the West Midlands. There is highly acidic water, which carries copper and nickel in strong concentrations, welling up on the site. It can be watched, highly coloured, going into the river. It is probably one of the principal sources of sulphuric acid, flowing eventually into the Trent and adding to the concentrations that emerge into the North Sea. It is a particularly difficult site because the land is in the ownership of various parties and development is unlikely. One attempt to establish light industrial use did not get very far because of the pollution problem. The pollution source probably originates from historical waste disposal into disused mineworkings from a nearby copper refinery. But proof would be difficult and extremely costly to obtain. We are in a situation in which all the industrial activity which is going on nearby meets modern pollution control requirements.

In that case, the site owners are neither responsible for the cause of pollution nor, individually, do they possess the resources to do anything about it. Indeed, the NRA has not been able to tackle the problem either, because it has not been able to find an adequate source of funding for it. It is very unlikely that pressure on the site owners or prosecution would resolve the issues. The local authority is not concerned to initiate action since the only impact is on water. The land is not close to housing and the contamination does not pose any obvious, immediate threat to human health. So that is a case in which, in my view, there is an urgent need for action, not least because I suspect that it is one of the major sources adding to the very considerable volume of dangerous or listed substances that eventually emerge by way of the estuary and cause problems in the North Sea with our neighbours in Europe. It seems to me that that is the kind of case in which we ought to put the agency in a position to act.

I can give examples of other sites; a retail site, a detergent factory and other examples are in front of me. I ask my noble friend to accept that there are many seriously polluted sites where we need the extension of the Bill in the way that I argue. I am glad that at an earlier stage he indicated that he was perfectly prepared to consider the proposition, if he could be given adequate supporting evidence. I hope he will accept that the strongly held view of the National Rivers Authority that there is a case will be taken as fairly good grounds for believing that some kind of action is required. I beg to move.

5.30 p.m.

Lord Jenkin of Roding: My Lords, I should like to come to the support of my noble friend Lord Crickhowell and provide my noble friend on the Front Bench with a little more of the evidence that he was looking for when my noble friend Lord Mills moved an amendment at Committee stage. The Government said that they would want a clear idea of why the agency would be better qualified than the local authorities to regulate such sites.

I had some experience of this issue—not dealing primarily with the matter of pollution but with very large derelict sites which had been abandoned—when I found myself with that difficult title "the Minister for Merseyside", a title given by the press and not by No. 10 Downing Street. I found myself with a number of extremely difficult sites which had been abandoned by their previous owners. In particular, there was the site of the old Burmah Oil refinery at Ellesmere Port, which I toured with representatives of the local authority of Ellesmere Port and Neston. I was overwhelmed by the sense that that relatively small and not particularly well-off local authority had been left with the appalling problem of an oil refinery which had been there for many years and from which the company had simply walked away, One can remember the financial problems of the Burmah Oil company at that time and it would have been quite ridiculous to have required it at that stage to do anything about it, even if one had had any power to do so, which one did not. There was a sense that the local authority had to grapple with something which was a great deal bigger than itself. The difficulties that it faced were beyond its capacity, however well-meaning it was. I must say that I greatly admired the officers of that local authority, but this was something outwith their experience and beyond the scale of their normal operations.

Looking at the whole subject, I find that industry itself feels that it would be better if the monitoring of some of the very large sites were the responsibility of the agency and not of the local authorities. Some of the arguments advanced are quite persuasive. One needs consistency of approach across the country. The agency is inherently more likely to be able to provide that than a large number of different local authorities, which have different experience and very different resources for dealing with such major contaminated areas. To deal with these sites often requires lengthy and very expensive investigation which may well be accompanied by complex issues of risks and their acceptability. Parallels have been drawn with the risks from manufacturing covered by the major hazard regulations. These are rightly placed under the control of the Health and Safety Executive, not the local authority. That is one reason. Another reason that I put to my noble friend is the experience overseas. A number of companies which face problems here also have overseas experience. In particular, I draw to the attention of my noble friend the Environmental Protection Agency in the United States. There, experience has shown that the development and application of new remediation technology to these types of sites is best carried out in conjunction with a single, central expert authority. Currently, remediation technology is evolving rapidly. I am quite certain that this country will be able to benefit enormously from the kind of environment that the agency can provide. It is much more likely to be able to keep up with, and perhaps keep ahead of, evolving technology abroad than a large number of local authorities.

I turn finally to the issue of prioritisation, to which I may wish to return in a later amendment. To place major remediation under the control of a central authority will greatly assist the decisions on where priorities should lie. That is very important for large manufacturing organisations whose sites are likely to be located in many different local authority areas. I urge my noble friend to look very seriously at the amendment that has been moved by my noble friend Lord Crickhowell. There are solid and substantial arguments in its favour, and I hope that those may be thought to tip the balance.

Lord Lucas of Chilworth

My Lords, I put my name to this series of amendments in the name of my noble friends Lord Crickhowell and Lord Mills. I felt that they better expressed the concerns that lay behind my amendments, which replicated those that I had put down at an earlier stage. I agree with all that my noble friend Lord Crickhowell has said. I also agree with what my noble friend Lord Jenkin of Roding has said against his background and experience.

I refer to the letter that the Minister wrote to me on 1st March. He said that the Government were trying to achieve regulation of the sites which would benefit from experience and skills available in the environment agency. He went on to say:

We are currently considering whether we can find a means of removing from the Bill the elements of the proposed regime which you feel might stigmatise landfills, whilst protecting our objective of ensuring appropriate agency involvement".

I believe that these amendments offer a workable solution. For example, if one can remove one arm of the current definition of closed landfill it will more adequately address the significance of contamination, which is what we are concerned about, rather than the source of such contamination. At the same time, I believe that it avoids the necessity to add to the list of sites that might be designated special at some future time and, at that future time, will require the amendment of primary legislation—that is, the legislation that we are currently considering. That is another good reason for simplifying what in part lies behind this series of amendments.

My particular concern is that we will then be reliant on the guidance under the new Section 78B(6) to set out the criteria by which potentially special sites are to be assessed. I hope that my suggestions and those of my two noble friends will add to the message that the Minister invited us to put before him when he spoke on the last occasion.

Viscount Mills

My Lords, I believe that my noble friends Lord Crickhowell, Lord Jenkin of Roding and Lord Lucas of Chilworth have put forward a number of convincing examples of where contaminated land sites other than closed landfill sites can and should be designated as special sites. I believe that this series of amendments offers greater flexibility in the legislation to allow sites other than closed landfill sites to be designated as special sites; greater flexibility to utilise the staff with the necessary skills and experience, the bulk of whom will be employed by the new agency; and greater flexibility for local authorities which, as I understand it, will be those who recommend to the Secretary of State the designation of special site status. This will provide special site status for a wider range of contaminated land. I hope that my noble friend will now find it possible to accept these amendments.

Lord Beaumont of Whitley

My Lords, we on these Benches often urge that matters should be devolved to local authorities. However, that is part of an approach which says that matters should be dealt with at exactly the right level. It seems to me that overwhelmingly the case made out by the noble Lord, Lord Crickhowell, and the noble Lord, Lord Jenkin of Roding, among others, is that in this case the right level is the agency. I hope that the Government will find some way of meeting this particular point.

Viscount Ullswater

My Lords, the noble Lord, Lord Beaumont of Whitley, rightly considers that the determination of the right level is the task that is before the Government at the moment. It is one that in many instances we share very much with the movers of this amendment. Amendments Nos. 129, 135, 137 and 138, moved by my noble friend Lord Crickhowell, address a more particular question in respect of closed landfills and will change the definition of a special site such that it need not necessarily be a landfill. I know that that is a matter about which my noble friend Lord Lucas of Chilworth feels strongly. His amendments at Committee and those that he has not moved today but has spoken to indicate his concern.

As I said during the debate in Committee on the Bill in response to similar amendments moved by my noble friend Lord Lucas of Chilworth, the intention behind the creation of the category of special sites which the agency is to deal with is to enable the particular skills and expertise of the agency to be brought to bear on a kind of site—closed landfills—where the skills associated with the agency's waste regulatory functions are most directly relevant and applicable. I also said at that time that we would be willing to consider whether there were any other types of site where similar complementary skills might exist. I agree with my noble friend Lord Jenkin of Boding that local authorities face such problems. From his experience, he spoke of the problems faced by some small local authorities and also authorities overseas. But we do not wish all kinds of sites to be taken from local authorities and passed to the agency for regulation solely on the grounds that serious harm or water pollution is possible, regardless of whether the agency has more appropriate skills and expertise available to deal with them than the local authorities. In our view the question of the seriousness of the problems caused by a site is not sufficient on its own to suggest that it must automatically be the agency which should be in the lead.

My noble friend Lord Crickhowell was also interested in water pollution and special sites. Where water pollution is a factor on any site the agency will be able to take appropriate action under its own powers under Section 161 of the Water Resources Act 1991. In many cases that would be the appropriate power to use where there is water pollution in isolation.

Although we would consider this issue still to be open for further discussion—I have heard very much what noble Lords have said this afternoon—we would not ish to accept these amendments, as we believe they fail to address the question of who has the most relevant expertise to deal with the particular types of site. I indicated that we are still carefully considering this matter. Having said that, I hope—

Lord Crickhowell

My Lords, before my noble friend sits down,'I do not want to get into a position, if I can avoid it, where I have to take this matter into the Lobbies. If my noble friend would undertake to come forward with some suitable amendment to cover the point that he has perfectly reasonably made, that would be fine. But I am bound to say that it does not seem to me that he has given a very cogent argument, or indeed has even approached giving a cogent argument, against the almost overwhelming case that has been put from both sides of your Lordships' House and by some of his noble friends who have very considerable experience of dealing with these matters. Before he sits down I hope that he will be able to go rather further in undertaking to come back to the House at a later stage.

Baroness White

My Lords, is the Minister taking into account the changes in local government? Does he not think that the situation might well arise when it would be impossible for the local authority concerned to take suitable action and it would have to turn to the agency?

Viscount Ullswater

My Lords, I thought I had indicated to my noble friend Lord Crickhowell that I was still carefully considering the possibility of bringing forward an amendment. I should like to reaffirm the Government's undertaking that we would want to bring forward an amendment. Having said that, I cannot say to my noble friend that I want to bring forward this amendment because I still believe that the fundamental difficulty with it is that it fails to address who has the most relevant expertise to deal with the particular type of sites. I completely accept that there may be special sites which are not closed landfill sites and which need the expertise of the agency to deal with them. At the moment I do not believe that the amendment addresses that point. We shall need to look at the matter very carefully.

I also hear what the noble Baroness, Lady White, says about the reorganisation of local government. I believe that local authorities will continue to have the expertise even when they have been reorganised and when the operations will be perhaps more locally based. This should not be a problem for them in the future.

Baroness White

My Lords, has the noble Viscount considered the Welsh situation? Perhaps what is happening with local authorities them will make him hesitate.

Lord Crickhowell

My Lords, I am grateful for what my noble friend had to say. I have never pressed my own amendments in almost any situation, but then I am well aware of the drafting resources available to government. However, as my noble friend used the words "we would want to bring forward an amendment", I take that as a pretty firm indication that he will bring forward a suitable amendment at a later stage. On that basis, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 129A to 129E not moved.]

Viscount Ullswater moved Amendment No. 129F:

Page 46, line 16, at end insert:

("(8A) The questions—

1. (a) what harm is to be regarded as "significant",
2. (b) whether the possibility of significant harm being caused is "significant",
3. (c) whether pollution of controlled waters is being, or is likely to be caused,

shall be determined in accordance with guidance issued for the purpose by the Secretary of State in accordance with section 78R below. (8B) Without prejudice to the guidance that may be issued under subsection (8A) above, guidance under paragraph (a) of that subsection may make provision for different degrees of importance to be assigned to, or for the disregard of,—

1. (a) different descriptions of living organisms or ecological systems;
2. (b) different descriptions of places; or
3. (c) different descriptions of harm to health or property, or other interference;

and guidance under paragraph (b) of that subsection may make provision for different degrees of possibility to be regarded as "significant" (or as not being "significant") in relation to different descriptions of significant harm.").

The noble Viscount said: My Lords, I spoke to Amendments Nos. 129F and 129G with Amendment No. 128C. I beg to move.

On Question, amendment agreed to.

Viscount Ullswater moved Amendment No. 129G:

Page 46, line 28, leave out from ("any") to end of line 31 and insert ("significant harm, or any pollution of controlled waters, by reason of which the contaminated land is such land; or").

On Question, amendment agreed to.

[Amendment No. 12911 not moved.]

Lord Jenkin of Roding moved Amendment No. 129J:

Page 47, leave out lines 34 to 48 and insert:

(""owner", 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 for the purpose of preserving, protecting, repairing, securing or investigating the condition of it, or otherwise protecting a security interest pertaining to 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; nor a beneficiary who is not entitled to ask for the trust property to be vested in him; "owner", 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 his rights as security holder for the purpose of preserving, protecting, repairing, securing or investigating the condition of it, or otherwise protecting a security interest pertaining to it, and otherwise performs no operational function in respect of it; nor does it include a bare trustee; nor a beneficiary who is not entitled to ask for the trust property to be vested in him;").

The noble Lord said: My Lords, we return to this issue, which we discussed in Committee on 31st January, about the extent to which lenders should become subject to the various powers and regulations in the Bill affecting contaminated land. In response to the amendment which I moved on that occasion, my noble friend said two things which have gladdened the hearts of the banks and building societies. He said:

"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 the next column he went on to say—and this was even more welcome:

"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".—(Official Report, 31/1/95; cols. 1448–1449.)

No amendments were tabled, whether late on Friday or at any other time, by my noble friend on this matter. We are left with the very unsatisfactory position that the definition of "owner" as it stands in the Bill will make these lenders liable if their property has been abandoned, the keys have been returned and they simply go in to make the place secure and perhaps take certain immediate remedial actions to minimise or even abolish the possibility that there might be contamination. As I said in Committee, one is dealing with properties such as petrol stations, dry cleaning establishments and other small establishments of that kind which handle potentially contaminating materials. I do not want to go over the arguments again because the Government have accepted the substance of the case: lenders should not be liable in these circumstances and they want to do something about it.

Without an amendment to the Bill action could be taken by the courts to make the lender a mortgagee in possession and thus liable as owner to clean up the site. If that position is left, lenders will simply walk away from a site. They will not make it secure. They will not take the steps perhaps to seal off and close valves and do other things which they might do to minimise the damage. I cannot believe that that is what the Government want.

It is important to deal, as I do in this amendment, with the point concerning trustees. As the Bill is drafted, trustees, including those who hold only bare legal title to the land—they have no beneficial interest in the trust assets—are presently caught by the definition of "owner" and personally held liable. That is the point. Trustees may be liable in certain circumstances, but why should they be personally liable in circumstances such as these?

I am grateful to the noble Lords, Lord Carmichael and Lord Williams of Elvel, because their amendment seeks to bring the Scottish provisions into line with those of England. However, it is fair to point out—my amendment covers the Scottish position as well as my advisers can draft it—that, while it is important that there is an exemption for "a heritable creditor" as well as for a mortgagee in possession, the overall position for lenders in relation to the definition of "owner" remains unsatisfactory.

I hope that my noble friend will be able to go a little further than he did at Committee stage and give us an assurance that there will be an amendment to deal with this problem which he says he does not want to arise in the circumstances that we have been considering. I beg to move.

6 p.m.

Lord Boardman

My Lords, I support my noble friend. There is no doubt that, unless the Bill is amended on the lines he suggests, it will become almost impossible for any owner of a site which has a high risk of being contaminated—such as near a petrol station or the like—to get a loan because the lender will be so conscious of the risk to which he is exposed that he will refuse to lend money. That would exclude from borrowing a very large band of people who are rather important to the economy. In so far as a loan was obtained, I am quite sure that the lender who is prepared to take the risk would insert terms requiring periodic inspections of sites to make sure that they are being looked after, at the borrower's cost. I hope that my noble friend will be prepared to accept an amendment, if not in the words put forward by my noble friend Lord Jenkin, then in terms which will carry out the intent of these amendments.

The Earl of Kintore

My Lords, I speak to Amendments Nos. 130 and 133 which are grouped with Amendment No. 129J. The purpose of these amendments, which clarify the definition of "owner", is to ensure that a surface owner who does not own the underground mineral seams or mines, cannot be held responsible for contamination in those mineral seams or mines. It may be bad enough for unlimited responsibility to be placed on innocent owners and occupiers of contaminated land, but it must be quite contrary to what anyone can consider just or reasonable for a person to be held strictly liable for property which he has not polluted; from which he has not received any benefit; which he does not own and does not occupy. The clause in the Bill provides just such a liability. It is hoped that the Government will agree to these amendments which remove this very serious potential for injustice.

Viscount Ullswater

My Lords, Amendment No. 1291 moved by my noble friend Lord Jenkin of Roding seeks to make particular changes to the definition of "owner" so as to protect the position of mortgagees who have taken possession of land only in order to secure and protect it, to protect the value of their security interests.

Following our discussion on a similar amendment moved by my noble friend at Committee stage, I undertook to consider whether any changes were needed to these provisions to deal with the situation where a secured lender found himself involuntarily in possession of land which might be contaminated.

On balance, I have concluded that no changes are justified to the definition of "owner" to deal with this question. Banks already have developed procedures to ensure that, wherever possible, they do not find themselves in possession of a mortgaged property. This reflects the general position in property law that where they are in possession, they are potentially liable to pay the outgoings of the property and also they are liable under various other statutory provisions such as the highways Acts, public health Acts and the building Acts. I can see no real case why we should depart from normal property law in a case of this particular kind of potential liability. Of course, banks will still retain the right not to go into possession of land over which they hold security if they believe that the land could have a negative net value.

This amendment would seek to go further, by specifically allowing the mortgagee to secure the property and take possession without being held to be the owner for the purposes of receiving a remediation notice. I do not believe that this would be justified, as it could prevent suitably prompt action to deal with contamination on a site. We have yet to reach a view as to whether trustees with no beneficial interest in the land should be exempt from any liabilities, as would also be suggested by this amendment. The problem of exemption for trustees is that it would open up an avenue through which people could seek unfairly, we believe, to evade liabilities by transferring their land into trust companies.

The noble Earl, Lord Kintore, spoke to Amendments Nos. 130 and 133 which seek to amend the definition of "owner" for both England and Wales and Scotland to specify that where contaminated land comprises substrata the "owner" would he the person who had the right to receive the full commercial rent in that substrata. This would have the practical effect of making the owner of the mineral rights or of a mine the "owner" for the purposes of the provisions where they comprised contaminated land and where ownership of such mine or mineral rights was distinct from that of the surface.

It is certainly the Government's intention that this should generally be the case and that it should be the owner of the mine or of the mineral rights in these cases who should potentially be liable if he is not already liable as a polluter.

We believe this is already the position under the existing provisions in that the definition of "land" in the Interpretation Act 1978 includes any,

estate, interest, easement, servitude or right in or over land

so that the owner of mineral rights would already be identified as an owner of land. This would mean that where the only contaminated land was the mine itself, the person who would be potentially liable as owner would be the owner of the mine or of the mineral rights and not the owner of the surface. On that basis I hope that my noble friend will agree to withdraw his amendment and that the noble Earl will not seek to press his.

Lord Jenkin of Roding

My Lords, we shall want to study very carefully what my noble friend has said. At first hearing I am left somewhat puzzled over reconciling what he said about the position of lenders under this legislation with what he said at Committee about not wanting to regard lenders simply as having deep pockets who could be made to clean up the land, for the pollution of which they are in no sense responsible. It may be that we shall want to return to this matter, having taken advice on the short but complex argument which my noble friend has advanced. At the moment I remain unconvinced. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 130 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 131:

Page 47, line 46, after ("guardian") insert (", lessee, any person holding title in respect of land,").

The noble Lord said: My Lords, without in any way desiring to reflect on the statement made by the noble Lord, Lord Jenkin of Roding, on his amendment covering the Scottish position, which the Minister did not accept in the way which the noble Lord would have liked, my amendments, which have been put forward by legal people in Scotland, would extend the definition of "owner" to make it quite clear in the Scottish sense what that is. I am advised that the definition of "owner" should be expanded to include those holding title, the various types of lessee, including ground tenants, and should specifically exclude heritable creditors not in possession.

I confess that the law is difficult enough, but land law is even more complicated and more difficult as we have heard during the last two or three debates. I am reliably informed by people who are very knowledgeable about land matters in Scotland, that this amendment covers the point very adequately and, if true, rather elegantly. I beg to move.

The Earl of Lindsay

My Lords, Amendments Nos. 131 and 132 moved by the noble Lord, Lord Carmichael of Kelvingrove, seek to make changes to the Scottish definition of "owner", specifically to include lessees and to clarify the position on heritable creditors who are not in possession.

As my noble friend Lord Ullswater has already said, we have been considering the need for further changes to the definitions of "owner". In particular, we have been aware of the need to make sure that the definitions applying in England, Wales and Scotland are as nearly equivalent as possible, given the differences in land law between the two jurisdictions.

As part of the consideration of the position of mortgagees we undertook after the debate at Committee stage, we also addressed particular questions in respect of the Scottish definition of "owner". Following this, we will be bringing forward an amendment at Third Reading to clarify the position of heritable creditors who are not in possession, to bring it better into line with the definition which applies in England and Wales. On that basis, I invite the noble Lord to withdraw his amendment.

Lord Carmichael of Kelvingrove

My Lords, I should like to echo the proviso that was given by the noble Lord, Lord jenkin of Roding, that we shall be able to decide whether the Government's amendment is appropriate when we see it. However, as the noble Earl's explanation has satisfied me that he has every intention of accepting the spirit of my provisions, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 132 to 1338 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 134:

Page 48, line 28, after second ("time") insert ("and in any event at no more than five yearly intervals").

The noble Lord said: My Lords, this is another short amendment. It seeks to ensure that local authorities are required to inspect their areas at least every five years for the purpose of identifying contaminated land. The provisions of what will be new Section 78B(1) (a) would allow a local authority to inspect its land on an unstructured basis. The amendment merely seeks to include an ultimate time limit of five years to ensure that an authority inspects its area regularly and locates any contaminated land. I beg to move.

Viscount Ullswater

My Lords, Amendment No. 134, which has been moved by the noble Lord, Lord Carmichael of Kelvingrove, seeks to change the basis of the inspection duty of local authorities to be at no more than five-yearly intervals rather than "from time to time", as is currently provided.

As I mentioned during the debate on a similar amendment in Committee, I firmly believe that a rigid approach to the timing of the duty to inspect for contaminated land would be inappropriate.

The wording as it stands will enable local authorities to discharge their duty of inspection in a sensible way and carry out more frequent inspections of sites where this is needed to monitor the potential harm or water pollution which might arise. If a site is causing particular concern, the inspections are likely to be at intervals of much less than five years. However, to require a local authority to carry out quinquennial inspections of its whole area would place an unnecessary burden on its financial resources particularly. Authorities should concentrate their resources on those areas where they believe that new problems may have arisen.

The operation of the inspection duty will obviously be central to the success of local authorities in using these powers to deal with the legacy of past contamination in an orderly and prioritised manner. This lies behind my amendment, Amendment No. I35A, which provides for specific guidance to be issued by the Secretary of State on the manner in which local authorities will carry out this duty. As part of the overall set of guidance documents relating to the definition of contaminated land and the process of its identification, this guidance on the inspection duty will receive parliamentary scrutiny through the negative resolution procedure. On that basis, I hope that I can persuade the noble Lord that his amendment is not necessary, and that he will therefore withdraw it.

Lord Carmichael of Kelvingrove

My Lords, the Minister has tried to convince me that the land will be inspected as required, but I did not quite follow him when he said that examining the land at five-yearly intervals would involve the local authority in a great deal more expense when the land might not require such inspections. I should have thought that there might be some form of rolling inspection of the land. Different categories of land might not need to be inspected except at five-yearly intervals, while other categories might need to be inspected much more frequently, particularly if a crisis arose.

Therefore, although I do not find the Minister's answer convincing, if he will allow me to read it carefully and to have it examined by those who are advising us on this matter, I shall beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 134A and 135 not moved.]

Viscount Ullswater moved Amendment No. 135A:

Page 48, line 32, at end insert:

("(I A) In performing its functions under subsection (I) above a local authority shall act in accordance with any guidance issued for the purpose by the Secretary of State in accordance with section 78R below.").

The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 128C. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 136 to 138 not moved.]

6.15 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 139:

Page 49, line 14, after ("any") insert ("written").

The noble Lord said: My Lords, the Minister said that the Secretary of State will be issuing instructions. My question is: will they be in writing? It seems as though they should be in writing but I should be grateful if the Minister could clarify that, having had an opportunity to examine both the amendments and the guidance. I hope that that will he the case. I beg to move.

Viscount Ullswater

My Lords, Amendment No. 139 would require that the guidance from the Secretary of State on the criteria describing special sites should be in writing. That is, in any case, the effect of my amendment which I discussed earlier when considering the overall definition of "contaminated land". All guidance from the Secretary of State is published. With that explanation, I hope that the noble Lord will withdraw his amendment.

Lord Carmichael of Kelvingrove

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Ullswater moved Amendment No. 140:

Page 49, line 23, leave out ("and").

The noble Viscount said: My Lords, in moving Amendment No. 140, I should like to speak also to Amendments Nos. 141, 144 and 276.

Amendments Nos. 140 and 141 provide for the Secretary of State to notify the occupier of any land which he has designated as a "special site". That appears entirely reasonable, as in some circumstances the designation could affect his interests, even if only to the extent of who might be seeking access to the site for the purposes of securing its remediation.

Amendment No. 144 removes the potential overlap between the agency's general cost-benefit duties and the provision stating that any remediation requirements must be reasonable in the light of the costs and the seriousness of the harm or the water pollution involved. It is an unnecessary duplication and an incorrect reference in the light of the fact that Clause 37 relates to the exercise by the agency of its powers and Section 78D relates to a duty. I should like to assure the House that the amendment leaves in place the requirement that an enforcing authority must have regard to the costs of what is required and the seriousness of the harm or pollution of controlled waters when specifying steps to be taken in a remediation notice.

Amendment No. 276 is consequential to the amendment moved by the noble Baroness, Lady Hamwee, and accepted by the Government at Committee stage, introducing the requirement for an affirmative resolution for any order to increase fines for non-compliance with remediation notices. It would prevent any such order having to pass through both the negative and affirmative resolution procedures. I beg to move.

On Question, amendment agreed to.

Viscount Ullswater moved Amendment No. 141:

Page 49, line 24, at end insert ("and (d) to any person who appears to the Secretary of State to be in occupation of the special site.").

On Question, amendment agreed to.

Viscount Ullswater moved Amendment No. 141A:

Page 49, leave out lines 29 to 31 and insert:

1. ("(a) serious harm is being, or might be, caused, or
2. (b) serious pollution of controlled waters is being, or is likely to be, caused.").

The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 128C. I beg to move

On Question, amendment agreed to.

[Amendment No. 141B not moved.]

Lord Jenkin of Roding moved Amendment No. 141C:

Page 49, line 43, at end insert ("shall, to the extent that it appears practicable to it to do so, consult the owner and occupier of the site and every person who appears to that authority to be, or who in its opinion might be considered to be, an "appropriate person" in relation to the site within the meaning of section 78E below, and").

The noble Lord said: My Lords, in moving Amendment No. 141C, it might be for the convenience of the House if we were to discuss also Amendment No. 141D, which stands in the name of my noble friend Lord Coleraine, and Amendment No. 144E which stands in my name.

In Committee, the noble Lord, Lord Northboume, moved an amendment in very similar terms to this, but which would have made the consultation optional. The Minister confirmed that he saw it as good practice that the enforcing authority should consult those concemed with the sites in the course of drawing up a remediation statement or a remediation notice.

From the point of view of those who might have to carry out the work, and the occupiers of the site—the use of which will undoubtedly be affected—such consultation is not just a matter of good practice but is essential, and it should appear on the face of the Bill. My amendment provides for such consultation.

Amendment No. 14IC relates to the drawing up of remediation statements. It makes it obligatory for the authority to consult all the parties who, in its estimation, are likely to be involved. The same applies to Amendment No. 144E, which deals with the remediation notice.

In each case, the duty is qualified by a reference to practicability. Of course it might not be possible to trace all the parties who should be notified or consulted in these cases—and it may be that the urgency of a situation would require the authority to act without much delay—but, nevertheless, where it can be done it should be done. I feel that the obligation should appear on the face of the Bill. I beg to move.

Lord Coleraine

My Lords, I shall speak briefly to Amendment No. 141D, which is in my name, and which broadly supplements the amendments to which my noble friend Lord Jenkin of Roding has spoken.

My amendment would go a stage further and provide that, except in emergencies, the enforcing authority should supply a draft of the remediation statement to the appropriate person so that that person can comment before the statement is made final. This is important because, apart from the reasons that my noble friend has given, the making of a remediation statement will be a matter which appears on the public register, and may have serious implications as to the value of the relevant land.

I certainly support all that my noble friend has said, and hope that his amendment will find favour with my noble friend the Minister.

The Earl of Kinnoull

My Lords, I too support the amendment. It strikes me that if a notice is served on the wrong person, enormous damage could be done, as my noble friend has said, and it would seem against justice that that should happen. I am sure that the appropriate authority would not wish that to happen. The Bill should contain a duty to that effect.

Viscount Ullswater

My Lords, dealing with my noble friend Lord Kinnoull's concern about whether the wrong person could be involved, there is an opportunity for that person to appeal to the Secretary of State under the meaning of "the appropriate person", which can be found in new Section 78E.

Amendments Nos. 141C and 144E, in the name of my noble friend Lord Jenkin of Roding, and Amendment No. 141D, in the name of my noble friend Lord Coleraine, all seek to introduce statutory requirements for consultation with interested parties before any regulatory action can be taken by enforcing authorities under these powers.

Consultation with those potentially affected by regulatory requirements should, at the very least, be a matter of professional good practice. I think similar words were quoted by my noble friend Lord Jenkin of Boding from my remarks at Committee stage. This would be true if for no other reason than that it is much more likely that any particular remediation requirements set by the enforcing authority will be accepted as "reasonable" if consultation has taken place.

But these amendments raise two particular questions. The first relates to the role of the "remediation statement"—required only for closed landfill sites—in the overall process set out in these provisions. This statement does not, of itself, require anyone to do anything by way of remediation. That is the role of the remediation notice. The statement is intended to act as a form of management statement, setting out in a published form what the enforcing authority sees as needing to be done on a particular site. It is not intended that the statement should go into great detail, but it could also cover questions of longer-term monitoring and control which might not be able to be specifically required in a remediation notice. The statement is intended to form a part of the process of arriving at the terms of the remediation notice, in particular providing a vehicle for consultation between local authorities and the agency. In the light of those considerations, I suggest that it is at the remediation notice stage that any consultation should take place.

The second question concerns who should be consulted. My noble friend's amendment would set a very broad net, in that it would include anyone who might be considered to be an "appropriate person". That would seem far too wide, and would impose a considerable bureaucratic burden on enforcing authorities, particularly as most of the people who would have to be consulted would not, in the end, be involved with the remediation process.

I do not believe that anything would really be gained by introducing statutory requirements for consultation. They would serve largely to add to the bureaucracy, expense and time involved in securing the remediation of any contaminated land. Having said that, I hope that my noble friend will consider that statutory consultation is not required and that he will withdraw his amendment.

Lord Jenkin of Roding

My Lords, I am grateful to my noble friend for the evident care that he gave to considering my amendment. The last thing I want to do is add to the time, cost and bureaucracy of what is an already complex procedure. I hope that when he is giving guidance to the agency, he will consider that one of the paragraphs might deal with the desirability, as a matter of good practice, of consulting the people who will obviously be involved. If he can do that, that would meet the case, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 141D not moved.]

Baroness Hilton of Eggardon moved Amendment No. 142:

Page 50, line 4, after ("any") insert ("land as likely to be").

The noble Baroness said: My Lords, the amendment is intended to assist in relation to land which may be contaminated. The intention is to break out of the difficulty of not being able to identify land which is contaminated without the considerable expense of sinking bore holes, and so on.

Local authorities are required by the Bill to inspect their areas from time to time, to identify contaminated land—the closed landfill sites—and other areas which are candidates for designation as special sites. If they do so identify contaminated land, they then must serve a remediation notice which can specify the works needed to mitigate the effects of the contamination or to restore the land to its former condition.

However, as stated in Committee, the procedure for the service of remediation notices makes the assumption that the local authority knows in advance that the land is contaminated. It does not allow for the case where, quite clearly, the business that has been carried on at a particular site is inherently polluting or contaminating—for instance, where certain types of car breaking business or other historical uses by industry make it almost certain that land is contaminated. The amendment would obviate the need for the local authority to conduct tests or to sink bore holes, and so on, and would enable it to serve a remediation notice without first establishing absolutely that the land was contaminated.

The Minister, in reply in Committee, said that if an authority were to serve a remediation notice on scant or little evidence that the land was contaminated, then the notice could be subject to review. But the implication of what was said was that local authorities could in fact serve such a notice where it was likely that the land was contaminated. Therefore, the amendment is intended to provide statutory cover for such service of a remediation notice, so that appropriate remediation can be carried out where it is likely that the land is contaminated. I beg to move.

6.30 p.m.

Lord Peyton of Yeovil

My Lords, I moved an amendment at an earlier stage which was intended to require that contaminated land should be improved so as to be suitable for the intended use. My noble friend was not satisfied with that amendment. So I have now put down a new version which I hope he will find more acceptable. My point is that it is obviously desirable that there should be a demand and use for land which has been contaminated, and that a measure of improvement, making it suitable for the intended use, is better than no improvement at all. So I am rather hopeful that my noble friend will accept this version. If he does not, perhaps he will undertake to do better than I have been able to do.

Lord Jenkin of Roding

My Lords, two of the amendments which I have tabled have been grouped with Amendment No. 142. Perhaps I may say a few words about each of them. It is obviously sensible that we should discuss the detail of remediation notices in one group, although they raise a number of different points. The point made by my noble friend Lord Peyton has a great deal of merit, if he will allow me to say so.

I shall deal first with Amendment No. 143B. The Bill defines "Remediation" (Section 78A(9)) as including the whole process from assessing the condition of land, through actual clean-up or containment operations, to subsequent checks that the remediation has been effective. Section 78D places the enforcing authority under a duty to serve "a" remediation notice but it is not clear what that should contain.

In practice, the following would be the likely steps: first, there would be the assessment of the probable and actual contamination of the site, partly through detailed investigations of its history, and partly through site investigations. That having been done, there would have to be an assessment of the seriousness and urgency of the problem in terms of the actual risk posed to human health and the environment. Thirdly, the enforcing authority would need to decide what measures are appropriate to deal with it (taking into account technical feasibility, effectiveness, cost and the degree of hazard or risk), and how long the work is likely to take. Subsequently it would carry out the work, and later monitor its effectiveness.

That means that the requirements for "remediation" (as defined in the Bill) will need to be laid down in a stepwise approach; normally, there will be at least two remediation notices. The first will demand the detailed investigations needed to assess the problem and the risks. Only then can the authority (or the operator) be in a position to weigh the seriousness and costs (as required by subsection (2)), and issue a further notice requiring the appropriate work to be carried out. In some cases the assessment may establish that, provided the condition of the site is monitored appropriately, there is no immediate need to proceed with remediation work.

Paragraph (a) of the proposed amendment is intended to clarify and allow for those requirements.

My noble friend will recognise that the provisions for remediation notices are modelled on the long-standing provisions for serving abatement notices under statutory nuisance. I am advised that established case law insists that an abatement notice which requires the recipient to carry out building or engineering works to achieve compliance must state very clearly what works are needed. It is not sufficient simply to require him to achieve a particular end result. In many cases with contaminated land, it will be inappropriate for the remediation notice to require a particular technical solution. Until the work gets under way there will often be a high degree of technical uncertainty, and what seemed right in the early stages may turn out to be quite the wrong solution as the work proceeds.

Paragraphs (b) and (c) of the amendment seek to ensure, first, that the remediation notice can specify an end result rather than particular works, and that the notice can be modified or replaced should subsequent findings show that to be appropriate. In other words, one is there seeking to spell out what will be likely to happen in any particular case.

I turn now to Amendment No. I44C. My noble friend will remember that in the Framework for Contaminated Land the Government rightly pointed out—this was referred to earlier—that:

it would be neither feasible nor sensible to try to deal with all land contaminated by past activities at once".

The noble Lord, Lord Williams, and others referred to the centuries of industrial activity which have given rise to a great inherited legacy of contaminated land. The document went on to point out that the "urgent and real problems" should be dealt with:

in an orderly and controlled fashion with which the economy at large and individual business and landowners can cope".

Those sensible words and that practical way of approaching the matter does not seem to be reflected in the Bill, which makes no allowance for that. As currently worded, it requires all land which is "contaminated", however slightly, to be subjected to apparently immediate clean-up. That is just not practical. In Committee, the Government accepted (Col. 1428) that that was not their intention and undertook to bring forward amendments to exclude sites not posing "unacceptable risks". But that still implies an approach which divides sites simply into those requiring and those not requiring clean-up, with no suggestion of an "orderly and controlled fashion" for prioritising the approach.

I have tabled the amendment, advised by my industrial experts in the field, as being a way of trying to reflect in the Bill what the Government originally put in their policy document—Framework for Contaminated Land. It may well he that we do not have it right, but there needs to be some provision indicating the need for prioritisation. That is what the amendment seeks to do.

Viscount Ullswater

My Lords, Amendment No. 142 would enable a local authority to use the remediation notice procedure as a method of establishing whether contamination is present on a site.

That appears to the Government to be unreasonable. It would, in effect, burden business, landowners and even homeowners with the costs of proving that their land was or was not contaminated. We believe that the enforcing authority should have to be able to demonstrate that actual contamination existed on any site, and then that there was sufficient contamination for the site to qualify as contaminated land, before it could require any remediation work, including further assessment.

As I explained in Committee, the provisions for further assessment to be included within a remediation notice were included in order to transfer to the "appropriate person" the costs of assessing the full extent of the contamination on any site. In practice, the process of carrying out that full assessment would be linked inextricably with the means chosen by the appropriate person to deal with the contamination itself.

Amendment No. 143B, spoken to by my noble friend Lord Jenkin of Roding, seeks to expand on the nature of any possible remediation notice, by specifying that it could provide for assessment, remedial works and monitoring in separate phases, either through separate notices or through variations to one notice. It would also make explicit that remediation notices could be framed so as to set overall objectives to be achieved, rather than describe particular engineering solutions to be implemented.

The Government understand the intention behind the amendment, which broadly reflects the iterative nature of the process of actual remediation on any site, with each stage enabling a better understanding to be reached of how further progress should be shaped.

The possibility of notices being served, which included only one, or two, of the three phases of remediation, is already implied in the current provisions. There is also nothing which might preclude the service of subsequent notices for whatever additional purposes might be reasonable in the light of the possibility of significant harm occurring. I am happy to clarify that it is the Government's intention that wherever practicable and reasonable, remediation notices should be framed in terms of objectives, as suggested by my noble friend. However, just as with the question of subsequent notices, I do not believe that this needs to be spelt out in detail on the face of the Bill, particularly as the provisions allow regulations to he made prescribing the form and content of remediation notices.

Amendment No. 144B, in the name of my noble friend Lord Peyton, seeks to introduce specific references to the use of the land into the considerations governing what might be required by way of remediation. Here again, I am happy to confirm that the Government's intention is that remediation should be required only to the extent that it is needed to ensure that land no longer qualifies as "contaminated land". But, with respect, neither of these amendments would actually achieve that, even with the narrowed scope of the definition of contaminated land.

As my noble friend's comments suggest, we have already been through one round of amendments seeking to put explicit references to site use on to the face of the Bill. On that occasion, I raised the difficulty of possible effects on the water environment which were not dependent on the use of the site. Both these amendments have sought to address that problem, but others still remain. We would want the definition of contaminated land to be triggered, for example, where damage was being caused to a site of special scientific interest. The difficulty then is that being an SSSI is not really a use of land. Similar considerations might apply if the condition of the land was adversely affecting the health of an endangered species.

The second major difficulty with both these amendments is that they are, in fact, too broad in their scope. Both refer to the uses to which land is likely to be put. The Government, however, do not intend that this regulatory regime should make that budgment. It should be restricted to the consideration of what are currently environmental problems. It is the role of the planning authorities, acting under the terms of the guidance note PPG23, Planning and Pollution Contrgl, for example, and the building control authorities, to ensure that the condition of land is suitable for proposed new uses and developments and that appropriate conditions are set to make sure that it is made so.

But even tying remediation requirements to current site uses would impose greater burdens than the Government would intend. In some circumstances, the only really cost-effective way of removing the possibility of significant harm on a site may, in the short term at least, be to change the pattern of use of the land to one that is less sensitive. For example, if a site used for public open space is contaminated to the extent that it presents health risks to those using the open space, the best way of removing those health risks may be to restrict public access to the site. Obviously, that is not going to be a universal or even long-term solution, but tying remediation requirements to an existing use would prevent it in all circumstances.

Amendment No. 144C, in the name of my noble friend Lord Jenkin of Roding, would seek to introduce various additional tests into the timing requirements for both the service of a remediation notice and the period within which remediation could be achieved. I do feel, however, that there are already sufficient protections against a person being required to do something in an unreasonable timescale, in that an enforcing authority must specify only things which are reasonable subject to the terms of Section 78D(2). This requires specifically consideration of the seriousness of the harm and the likely costs which would be involved. It is also intended that an unreasonable requirement would be a potential ground for appeal against the service of a remediation notice.

However, although I can understand the concerns that one company or individual may face if they receive a number of remediation notices in respect of different sites, I do not feel that this need necessarily be a consideration requiring the granting of extra time within which to comply with remediation requirements. If that company or individual is facing a number of remediation notices, that can only reflect the fact that it or he is responsible for contamination on a number of sites, whether as polluter or as owner. In such circumstances, it would appear reasonable that people should ensure that they are able to meet all their obligations; otherwise it will be public health or the environment which suffers. It could also result in those who have polluted many sites being dealt with more leniently than someone who is responsible for only one site. That could not be equitable.

I hope that, with that explanation as regards the assembled amendments, the noble Baroness will feel able to withdraw her Amendment No. 142.

6.45 p.m.

Baroness Hilton of Eggardon

My Lords, I find the Minister's answer disappointing on two grounds. The first is the implication that local authorities will act unreasonably in serving remediation orders. The implication that they will go around scattering them like confetti represented a deeply disappointing attitude toward local authorities. I am sure that they will act responsibly and will not issue such orders without appropriate evidence that a site is likely to be contaminated.,

The second reason why the answer was disappointing is that now the costs of assessing whether a site is contaminated will fall upon local authorities. As we know, they are very much strapped for cash and it means that contaminated sites will not be cleaned up. It will not be possible for local authorities to serve remediation notices when it is appropriate that they should do so because it is likely that a site is contaminated.

I find the Government's response disappointing but I shall read what the Minister has said. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 142A not moved.]

Lord Stanley of Alderley moved Amendment No. 143:

Page 50, line 12, at end insert:

("() In any case where it appears to the local or enforcing authority that land has become contaminated by reason of the deposit of controlled waste in contravention of section 33(1) and that the owner or occupier of the land neither deposited nor knowingly caused nor knowingly permitted its deposit, the authority shall not serve a remediation notice upon the owner or occupier of that land.").

The noble Lord said: My Lords, I shall speak also to Amendment No. 143A. I note that Amendment No. 145 is grouped with this amendment, but I prefer to speak to it separately.

In Committee, I raised the irritating problem of fly-tipping. Having read Hansard of 31st January (cols. 1426 to 1429), I am far from happy. The purpose of the amendment is twofold. The first is to discourage the totally irresponsible practice of fly-tipping. The second is to protect the innocent occupier from prosecution. If your Lordships accept the amendment, it will achieve those two objectives in the following way. When contaminated waste is fly-tipped on land the local authority may serve a remediation notice on the owner or occupier of that land. If the occupier did not give permission for that waste to be tipped on his land, it will be up to him to prove that. That is spelt out in the second paragraph of my amendment. It will then be up to the local authority to use its best endeavours to try to find the fly-tipper. It may then serve a remediation notice on that person.

Nowadays, with the help of forensic science, it is much easier to discover where the contaminated waste originated. Moreover, fly-tippers usually use nearby sites. If your Lordships suggest that I am trying to allow an occupier to opt out of his responsibilities, I say that I am not. My amendment puts more responsibility on him than Section 59 of the Environmental Protection Act 1990. However, having listened to my noble friend's reply to my question about nitrate sensitive zones—he said that the Government's intention is not to increase existing liabilities under the Bill—I am tempted to take out that extra liability.

The problem of fly-tipping is likely to increase because of the landfill tax. That is all the more reason why the innocent bystander or occupier should be protected. As the Bill stands, he is not protected. Therefore, I ask my noble friend to accept the amendment or to tell your Lordships why the Government believe that the innocent should be made liable. I beg to move.

Lord Gisborough

My Lords, I support the amendment. I live in an area near which there is a great deal of industry. Fly-tipping is continually done on my land. On no occasion could I possibly prove that I had not permitted it. I caught one person tipping a lot of stuff and I told him that he must come with me to the police station. He was a policeman. Therefore, I made him pick up twice as much as he had tipped and left it at that. But I could not possibly have proved to anyone else that I had not given him permission to do that in the first place.

It is totally unfair that somebody should have to tolerate fly-tipping on his land and then must also meet the cost of removing it. Moreover, he perhaps runs the risk of being prosecuted.

Lord Renton

My Lords, I too support the amendment. We should not lose sight of the fact that Clause 54 contains 14 pages of new legislation to be added to the Environmental Protection Act 1990. The climax of those 14 pages is to be found at page 54, where we find that failure to comply with one of those notices is a crime which attracts enormous penalties—£20,000 on summary conviction. In accordance with our normal standards of British justice, we owe it to owners and occupiers not to place them in a position in which, through no fault of their own, their land is contaminated without their knowledge.

Even if a person has only a few acres, it may take him some time to discover that, for example, drums of poisonous material which may contaminate his land have been dumped on it. He would not know who dumped them there. If somebody owns a large estate in a remote part of the country where contamination has taken place in an obscure way—perhaps in a thicket at the side of the road—it may take him several weeks to find out.

We should not place the owners in an unfair position. I hope that your Lordships will not think it ridiculous if I say that that is analogous to the case of somebody being in possession of stolen goods and not knowing that they were stolen. The fact that he is in possession of stolen goods enables the prosecuting authority—the police—to find out why he had them. He merely has to prove that he did not know that those goods were stolen. He does not have to go further and say that he knows who stole them or anything like that.

Here, we have the position of somebody whose land has been contaminated, which is a criminal offence. Although the liability will not arise until a contamination notice has been served and there has been failure to comply with it, nevertheless, that potential criminal liability exists. We must ensure that justice is done.

Baroness Nicol

My Lords, I support the intention behind Amendment No. 143A in particular. It seems fair that the owner of land on which fly-tipping has occurred should have a defence where he can prove that the offence was committed without his knowledge. I take on board the point made by the noble Lord, Lord Gisborough, but we must guard against the fact that there may be landowners who would allow the tipping to take place and then say that they had not allowed it. Therefore, I am afraid that the burden of proof must be on the landowner.

The power would remain for the local authority to serve a remediation notice when the landowner's defence could not be substantiated. This amendment may help to avoid injustice without impairing the power of the local authority to deal with real offenders. I hope that the Government will find that acceptable.

The Earl of Lytton

My Lords, I warmly support the amendment. Like other noble Lords, on occasions I suffer from the attentions of fly-tippers so I have had first-hand experience of dealing with the stuff, including clearing it with my own fork and bucket.

There is a problem in that as the Bill stands, it clearly goes significantly further than the Environmental Protection Act 1990. On previous occasions the Minister has said that it is not the Government's intention to extend further liabilities. However, I believe that the Bill does exactly that. That is the first point.

The second point relates to what may be described as the wider moral issue. I accept entirely that we want to get at polluters. The polluter pays principle is at the heart of that. But it is not acceptable to have as a line of default that somebody who is not the polluter pays. Never mind whether the polluter should not pay twice but should pay once. It is not good enough for an innocent party to be paying at all. Therefore, I have considerable reservations about the onus of proof being placed on somebody who is ostensibly an innocent party. That onus of proof involves cost and risk, and the outcome is uncertain. For what? It is because some not very public-spirited person has taken the easy way out on his way home or on his way to his place of work and has decided to unload his van with that stuff in the back. I have no doubt that he has been paid something for his time and trouble.

It seems to me that there is a clear imperative to catch those people. I accept that the person who is most likely to have the resources and the local information may well be the owner or occupier of the land. But that cannot always be the case. Therefore, to make a general role along those lines must be regarded as offensive to common sense. I support Amendment No. 143A but I enter that caveat.

Lord Jenkin of Roding

My Lords, my noble friend's amendment contains the phrase "knowingly permitted". The House will remember that in Committee I raised the anxieties which are felt in some quarters in relation to what that actually means.

My noble friend said quite correctly, as I expected him to do, that there is no evidence that the case law in relation to the phrase "knowingly permitted", which is taken from previous environmental legislation, such as the Water Resources Act 1991 and the Environment Protection Act 1990, has led to the kind of interpretation which my noble friend sought to put on it. The House will remember that it was suggested that an interpretation of the words may be that one needed to know that it was there and that, therefore, one had knowingly permitted it.

There are still some commentators who have said that the words can bear that interpretation and that it may be only a matter of time before a judge decides that that is what they mean. I understand my noble friend's reluctance to deal with the matter on the face of the Bill. However, perhaps he will deal with the matter by making it clear in the guidance to the agency and to local authorities which he intends to publish, that the words "knowingly permitted" imply a degree of mens rea; namely, that the person has to know that something has been done and has acquiesced to it—for example, fly-tipping or depositing scheduled goods on the land. Given the state of the law, it is possible that it is neither necessary nor easy to put such a phrase into the Bill. However, there are still anxieties in that respect. I hope that my noble friend the Minister will be able to go some way towards relieving them.

7 p.m.

Lord Peyton of Yeovil

My Lords, I should just like to add my voice to the general plea and say that I should really be rather shocked if my noble friend the Minister found himself unable to help. I do not believe that that august building at No. 2 Marsham Street has ever been the subject of fly-tipping. Therefore, the collegiate experience of those within it as regards the nuisance of fly-tipping is probably rather limited. If my noble friend is unable to assist in the matter, I must say that I should be most tempted, one convenient evening, to assemble a suitable load of garbage and tip it on the steps of that awful building.

Lord Coleraine

My Lords, the amendment moved by my noble friend Lord Stanley of Alderley seeks to provide a reasonable measure of protection for an owner against fly-tipping. I should like to speak to Amendment No. 154B, which is tabled in my name and which has been placed in this group of amendments. It is designed to provide a similar reasonable measure of protection to the producer or transporter of controlled waste who places it on a licensed disposal site. The position in the Bill at present, under Section 78E(2) of the Environmental Protection Act 1990, provides that,

the appropriate person is the person, or any of the persons, who caused or knowingly committed the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land".

I believe that that makes it quite clear that every time someone delivers controlled waste to a licensed disposal site he is bringing himself within the wording of that subsection. I do not think that that would really be considered reasonable.

Therefore, my amendment seeks to provide that the waste producer or the transporter shall not be,

the appropriate person by virtue only of his having imported, produced, can-ied, kept, treated or disposed of that controlled waste".

The Earl of Kintore

My Lords, I should like to speak to Amendments Nos. 152 and 153, which are tabled in my name and which have been placed in this grouping. The amendments seek to provide a defence against enforcement action for an owner or occupier of proving that he could not reasonably have known, at the time when he acquired that land, of the existence of the substances which are causing contamination. That would be a very limited defence but, if the amendment were accepted, it would remove some of the worst possibilities of owners and occupiers being held responsible for contamination in situations where they could not reasonably have been aware of any problem.

A housing development was recently built in Livingston, in Scotland, on land which had been contaminated by heavy metals more than 80 years ago. It is understood that the contaminated soil is now being removed by Livingston Development Corporation at a cost of several million pounds. Under the terms of the Bill, the owners of the individual houses would have been liable for that remediation work if the Bill had been in force. A survey for house purchase or, in most cases, purchase of a farm, could not possibly be expected to disclose such problems unless some very comprehensive land use history were readily available from local authorities.

Contamination is very different from other latent defects in land such as potential for subsidence, as it is virtually impossible to obtain insurance against environmental liability. The Bill makes some provision for hardship to be taken into account by a local authority in deciding whether to enforce the costs of remediation notice, but that is really not a satisfactory solution as the decision is a subjective one by the local authority. There should instead be a fair, and clearly established, principle applying to all owners and occupiers.

Viscount Ullswater

My Lords, Amendment No. 143A concerns the position of landowners whose land may have been contaminated by fly-tipping. At present, the waste regulation authorities have powers under Section 59 of the Environmental Protection Act 1990 to ensure that fly-tipped or any other illegal deposits of waste, are removed. As my noble friend stated, the "innocent" landowner has a ground for appeal against any attempt to make him remove the waste or be responsible for the costs of removing the waste where he can prove that he did not deposit or knowingly cause or knowingly permit the deposit.

However, the landowner could, in some cases, still be held responsible under the statutory nuisance provisions in Section 80 of the Environmental Protection Act and under the "amenity" provisions of Section 215 of the Planning Act 1990. In practice, the latter powers are not normally used in those cases so that the landowner subjected to fly-tipping will not have to bear the financial consequences of its clearance. That is the right policy and the one that we should like to see under the Bill.

However, as the Bill currently stands, I accept that that position is not fully achieved. Through paragraph 64 of Schedule 18, we have disapplied Section 59 in those circumstances where the land also comes within the definition of "contaminated land". Therefore, instead of there being two parallel powers as is the case at present, only the contaminated land provisions would apply. We see the need to change that position. I am grateful to my noble friend Lord Stanley of Alderley for raising such an important issue.

In making the necessary changes, we consider that the best way of meeting my noble friend's concerns is to disapply the contaminated land provisions in those cases where Section 59 would apply. In that way, all fly-tipping cases would he for the agency to deal with under its Section 59 powers. Indeed, that goes further than the former position in providing a guarantee that the grounds for appeal available to innocent landowners under Section 59 would always be available in cases of land subject to fly-tipping.

I tum now to the point raised by the noble Baroness, Lady Nicol. Under Section 59 of the Environmental Protection Act, an occupier is potentially liable if he knew about the situation and did not prevent it when it was within his power to do so. Therefore, the noble Baroness's concerns are reflected within the provisions of Section 59.

My noble friend Lord Jenkin of Roding returned to the problem as to whether the phrase "knowingly permit" is well understood. That phrase has been a basis for liability in environmental legislation for over a century. It was used in the Rivers Pollution Prevention Act 1876 and more recently was the basis for liability in relation to the deposit of waste in the Control of Pollution Act 1974 and in Part II of the EPA 1990; and, indeed, it was used for liability in respect of water pollution under the Water Act 1989 and the Water Resources Act 1991.

Over that long period, no substantial problems have arisen in relation to the courts' interpretation of the words "knowingly permit". Indeed, case law already provides that the test of "knowlingly permit" requires both knowledge of the contaminating substances and that it must be within a person's power to do something to prevent the pollution occurring. I hope, therefore, that my noble friend can accept that they are the proper words to use in the statute.

Having said that, we shall bring our own amendments to restore the scope of Section 59 so that it applies to any illegally deposited waste, and to disable the contamination of land provisions where Section 59 powers would be available. That would also restore the ground for appeal currently available to the victims of fly-tipping. On that basis, I hope that my noble friend will agree to withdraw his amendment.

I turn now to Amendment No. 145B, which is tabled in the name of my noble friend Lord Coleraine. It seeks to specify that a person who consigns waste to a landfill, for example, could not be held responsible for any subsequent contamination so long as the deposit made was legal, he was not the holder of a waste management or disposal licence, and he had no duties, or had complied with any relevant duties, under the waste management duty of care requirements.

As a statement of policy, the Government fully support the intention behind the amendment. We do not intend that the words

caused or knowingly permitted ... substances … to be in, on or under … land".

should be construed as including persons merely on the grounds that they had consigned materials to an authorised waste .stream. However, we believe that that is already the effect of the existing provision. As a result, we should be reluctant to introduce an amendment into this legislation along these lines, lest by inference it cast doubt on the interpretation of similar tests of responsibility in other legislation.

The Earl of Onslow

My Lords, is my noble friend not aware that, as a result of a House of Lords judgment, the meaning of the word "cause" has been tightened up so that it means something different from what it originally meant?

Viscount Ullswater

Yes, my Lords, indeed I am aware of that. That has been a helpful interpretation of the word "cause". Every future judgment must be made with that knowledge.

Amendments Nos. 152 and 153, in the name of the noble Earl, Lord Kintore, would enable an owner or occupier to appeal against a remediation notice on the grounds that at the time he acquired ownership or occupation of the land he could not have known of the presence of contamination in the land. During the debate in Committee on this Bill I stated that the Government will, at a later date, be setting out what we believe should be available as grounds for appeal against a remediation notice. We do not believe that the inclusion of grounds for appeal based on a state of knowledge in the past would be justified. It would have the undesirable effect of leaving real environmental problems unresolved, not as a result of consideration of their current seriousness but as a consequence of the time or manner in which they were originally created.

In cases where the original polluter cannot be found, it is reasonable for anyone who benefits from the ownership of the land to take responsibility for any adverse consequences of its condition and for any works needed to deal with the harmful effects of contamination. That is not a new concept. It has been the position under the statutory nuisance provisions now in Part III of the Environmental Protection Act 1990, which were in turn based on public health Acts dating from 1875 onwards. It also reflects principles in the common law, namely caveat emptor in property law and the fact that in the tort of nuisance a person can adopt a nuisance by acquiring a site, becoming aware of the nuisance and failing to do anything about it. In that situation the new purchaser can become liable for the nuisance at common law.

I hope that I have put Lord Stanley of Alderley's mind at rest in relation to fly-tipping and that my answers to other noble Lords allow them not to press their amendments.

Lord Stanley of Alderley

My Lords, I am very grateful to my noble friend for his reply. I trust that he will table the necessary amendment at Third Reading. If he cannot do so, I may be forced to table an amendment on lines that will satisfy my noble friends who supported the amendment.

I was grateful for the contribution of the noble Baroness, Lady Nicol. She too felt that it was necessary to place some onus on the landowner, although I believe that that is a minor point having listened to my noble friends Lord Renton and Lord Jenkin. I was a little chicken hearted including that particular part in the amendment. I did that to curry favour with the Department of the Environment. Perhaps I shall have to reconsider that aspect.

I gained the impression that there was considerable support for the amendment. I believe that my noble friend on the Front Bench also got that message. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

[Amendments Nos. 143A and 143E not moved.]

Viscount Ullswater moved Amendment No. 144:

Page 50, line 13, leave out from beginning to ("the") in line 15.

The noble Viscount said: My Lords, I spoke to Amendment No. 144 with Amendment No. 140. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 144A to 144C not moved.]

The Earl of Lindsay moved Amendment No. 144D:

Page 50. line 26, after ("the") insert ("significant").

The noble Earl said: My Lords, my noble friend spoke to Amendment No. 144D with Amendment No. I28C. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 144E and 144F not moved.]

Lord Northbourne moved Amendment No. 144G:

Page 50, line 48, at end insert: ("() 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 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: My Lords, it seems only reasonable that, if a local authority serves a notice requiring remediation of a particular site up to a certain standard, when that remediation has been carried out the local authority should acknowledge the fact. Indeed, as I understand it, the notice is recorded on a register. As the Act stands at present there appears to be no provision for striking that notice off the register or making any entry in the register to show that the work has been carried out.

Surely the local authority will have to satisfy itself that the work has been carried out. Otherwise landowners will simply get away with not doing the work. If the local authority has satisfied itself that the work has been done, then, in justice, it should acknowledge the fact in some form, either by making a note on the register or by providing a certificate of compliance. That must be extremely important in terms of the title to the land when future transactions take place. I beg to move.

The Earl of Kinnoull

My Lords, I strongly support the amendment. Perhaps my noble friend will be able to tell the House that this issue is already covered somewhere in the Bill. However, I am reminded of a similar situation in relation to a listed building. When a local authority seìves a notice of repair I am certain that, at the end of the repair work, a certificate is issued. Otherwise, as the noble Lord, Lord Northbourne, said, there would remain a stain on the title of the property that would make it virtually unsaleable. Therefore, in view of the importance of the matter, I hope that my noble friend has some encouraging news.

The Earl of Lytton

My Lords, I support the amendment warmly. It seems to me that there needs to be some comfort that an acceptable standard of remediation for a particular use has been achieved. That comfort applies on both sides, both to the local authority as the enforcing body and to the owner or occupier of the land on whom the remediation notice is served.

The purpose of the amendment is to provide some form of certification process to indicate that that has been achieved. That does not prevent a further remediation notice being served in the future. But it will mean that the present owner of the land can have some comfort that for the present or proposed use inherent in a particular scheme the land has been successfully remediated as regards contamination and the door is not left open to further demands for yet more action to clean up the land. That is entirely consistent with policy statements made in the past in terms of the need to lead the clean-up process from the front, if necessary, through the development process.

If there is uncertainty, risk is created where there is no need for risk. In certain circumstances it would be impossible to obtain funding for a scheme which relied in some part on a remediation approach. If that happens, important sites will be hostages to fortune as everybody tries to avoid liability in respect of those sites. Many of those sites are difficult enough to bring forward for development without adding to their problems. If such an amendment is not acceptable, I ask the Minister what will prevent a local authority enticing a developer to accept a clean-up programme as part of the development process and then progressively imposing more conditions? I hesitate to say that any significant number of local authorities would seek to do that but it might be a convenient way to circumvent the principles of cost benefits. The whole issue would become a moveable feast. I have some concerns about that.

I do not believe it right that new conditions should be added. I hope that the Bill does not provide for a rolling programme of additional encumbrances. I am sure that that is not the intention. However, the amendment seems an important safeguard in that respect.

Viscount Ullswater

My Lords, Amendment No. 144G, moved by the noble Lord, Lord Northbourne, imposes a specific duty on enforcing authorities to satisfy themselves that the requirements of remediation notices have been fully met and to issue a certificate of compliance accordingly. Quite apart from the additional workload associated with the duty to check that the requirements had been met and the extra bureaucracy implied by the service of another document, I do not believe that such a process would be appropriate. I shall explain why.

First, it would not readily address the problem of how to account for long-term remediation requirements, in particular, for example, where active venting or monitoring might be required to deal with landfill gas. In those cases the site would be in the process of complying with a remediation notice for a considerable period of time.

Secondly, a certificate of compliance might bring an unjustified implication that the site in question would be permanently exempt from further regulatory action. I know that the noble Earl, Lord Lytton, is concerned about that. But such a total assurance could never be given, even if the chances of further regulatory action can be greatly diminished. The circumstances on the site could change over time in a number of ways. New gas generation could start, containment measures could fail or a new and more sensitive used of the land could be introduced. Any one of those could lead to the land returning within the definition of contaminated land. If there were any sense that responsibility for further remediation would pass to the enforcing authorities, those authorities would display a marked reluctance ever to sign off a site as completely clear.

My noble friend Lord Kinnoull gave the comparison of a listed building. I do not believe that a listed building raises the same problems that we face with contaminated land. I hope that I have identified some of the problems which the amendment would pose for the regulatory authority. In view of that, I hope that the noble Lord will withdraw the amendment.

Lord Northbourne

My Lords, before the noble Viscount sits down, perhaps I may seek clarification. Is he saying that once a notice has been issued that certain land requires remediation up to a certain standard, that notice will always be on the record and can never be expunged?

Viscount Ullswater

My Lords, the whole point of the record is that it indicates what has been done to certain land which at the time was designated as contaminated. In the future it may be useful to indicate what has been done. We would consider the idea of adding other information to that register so that whatever has been done could form part of that valuable information.

The Earl of Lytton

My Lords, before the Minister sits down, perhaps I may say this. I think that I understood him correctly. What he said appears to preclude any identification of "suitable for use". One would never know what the term "suitable" meant. One could never attach the term to a use with the smallest degree of certainty. Perhaps the noble Viscount can explain that point further.

Viscount Ullswater

My Lords, I do not believe that I compromised the idea of "suitable for use". What I said was that if a contaminated land site needed further remediation over a period of years, then it would not be right for the agent), to assume that remediation by being able to sign off the previous owners as having stated they had complied with the remediation notice. Further remediation may be required in due course. The site may change and different and further remediation might be required.

The Earl of Kinnoull

My Lords, before my noble friend sits down, perhaps I may say this. While I accept that the listed building may not be a reasonable, practical example, there surely must be a division between contaminated land which can be cured—I refer to heavy metals, for instance—and contaminated land which might have problems of methane gas, or whatever, present for many years. When one considers the damage to the value of the land once it has received such a notice, it seems woefully wrong that the notice will never disappear off the record. There must be occasions when the contaminated land is completely cured. I hope that my noble friend will consider that point.

Viscount Ullswater

My Lords, with the leave of the House, perhaps I may say that of course I shall look at all the points made. However, I believe that it is right that the register should record what remediation has been done. There are circumstances when further remediation might be required, and I do not believe it right that the agency should assume those liabilities by signing off a previous owner with some certificate. As I indicated, the danger would be that the enforcing authority would show marked reluctance ever to sign off a site even if it had the power to do so.

Lord Northbourne

My Lords, I have just heard something very surprising. The noble Viscount said that he thought it right that the register should record what had been done. That is exactly what we ask for. Therefore, on that basis, I may well not have to bring hack the amendment. However, I should like to reserve the right to do so when I have read Hansard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Northbourne moved Amendment No. 144H:

Page 51, line 10, leave out ("be in, on") and insert ("come into, onto

The noble Lord said: My Lords, Amendment No. 144H refers to new Section 78E(2) which is beginning to get near the real crux of the problem that I and my noble friends have with the part of the Bill regarding who is the appropriate person. New Section 78E(2) states:

"Subject to the following provisions of this section, the appropriate person is the person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land".

One can read that subsection in this way: that the appropriate person includes anyone who knowingly permitted the substance to be in or on the land. It could be, for example, a neighbour who knew that the polluting substance was on the land but took no action to remove it. I suggest that the wording of the new section does not state what is intended. Subsection (2) is intended to define the polluter. It defines the polluter but also someone who might be an innocent bystander who knowingly permitted the substance to be there. I believe that my amendment makes the clause state what is intended. It defines the polluter. I beg to move.

Lord Coleraine

My Lords, I wish briefly to address Amendment No. 144J which stands in my name. It is a probing amendment. The amendment adds to new Section 78E the provision:

A person shall not be treated as having knowingly permitted substances to be in, on or under land until such time as he becomes aware that the relevant land is contaminated land and fails, within a reasonable time of becoming aware, to take what appear to the enforcing authority to be satisfactory measures for remediation".

I have no doubt that it would not be the intention that an enforcing authority could draw to the attention of an owner or occupier previously unknown or unsuspected contamination and immediately serve notice on him for knowingly permitting the contamination to remain. There must, I am sure, be a reasonable period for response which should be given before formal action is taken. I am confident that that would be my noble friend's intention with regard to the Bill, but I should be grateful if he would make the position clear.

The Earl of Lytton

My Lords, I support the amendment and ask the Minister to confirm, in the light of what he said about "knowingly permit", that it is understood that the provision will not attach a liability to an owner or occupier of the land for the time being who just happens to discover that a contaminant is on his land. We go back to the common-sense approach of ensuring that the polluter pays and that the innocent party is not unnecessarily affected.

Viscount Ullswater

My Lords, Amendment No. 144H seeks to amend the basic test of liability so that it would refer to persons who caused or knowingly permitted substances to come into, onto or under land rather than to be in, on or under land. To an extent, the amendment is driven by the same concerns as Amendment No. 144J, spoken to by my noble friend Lord Coleraine, which seeks to clarify the meaning of the term "knowingly permit". However, it would cause a number of different problems itself.

It would ignore completely the responsibility which ought to attach to those who genuinely and actively permit the continued presence of contaminating substances in land, for example, as a result of a redevelopment of a site. This would become more of an issue where it was in fact the actions of that later person, rather than the original polluter, who set in train the circumstances by which significant harm became possible, for example, through breaching containment on the site and causing the migration of contaminants elsewhere, or by introducing a more sensitive site use.

The wording of the amendment could arguably broaden the net of potential liabilities as well. It could, for example, be taken to include anyone bringing materials onto the site, such as tanker drivers or those consigning waste to a landfill. The formulation of causing or knowingly permitting substances to be in, on or under the land provides a much narrower focus on those directly responsible for the particular location and circumstances of the contaminating substances. For those reasons, I could not support the amendment.

Amendment No. 144J, spoken to by my noble friend Lord Coleraine, seeks effectively to qualify the meaning of the phrase "knowingly permit" so that a person would not be "knowingly permitting" substances to be in, on or under land until they knew the land was contaminated and failed within a reasonable time to take satisfactory measures for remediation. I argue that the qualification is unnecessary. I indicated to my noble friend Lord Jenkin of Roding that "knowingly permit" has been a basis for liability in environmental legislation for over a century. It is therefore a well-known phrase. I do not believe that I could accept the amendment.

The noble Earl, Lord Lytton, asked me to go much further than that, but I do not believe that I can confirm that what he suggested is the current state of the law.

Lord Northbourne

My Lords, I hear what the noble Lord says and I am impressed with the inadequacy of the wording of the amendment. I wish to take it away and reconsider it. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No, 144J not moved.]

The Earl of Lindsay

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.35 p.m.

On Question, Motion agreed to.