HL Deb 07 March 1995 vol 562 cc205-62

8.36 p.m.

Consideration of amendments on Report resumed on Clause 54.

Lord Northbourne moved Amendment No. 144K:

Page 51, leave out lines 12 and 13.

The noble Lord said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 144L and 144M. The amendments get to the heart of the problem. They relate to the questions: who is the appropriate person upon whom the notice should be served and who should be required to put the matter right? The subject divides itself into three sections: the polluter; the question of the transfer of liabilities; and the residual liability of the landowner or occupier. The point about the polluter is covered by what will be new Section 78E(2). These are probing amendments on the basis of which I should like to ask the Minister a number of questions. I accept that he may not have the answer in every case tonight, but I hope that we can at least discuss them between now and Third Reading.

My first question is: which polluter? Subsection (2) talks about finding the person who, "knowingly permitted the substances"to be on the land. There may be several such persons. Is the polluter the largest polluter or the most guilty? Is the polluter the person who is the easiest to find or the one with the deepest pocket? If none of those descriptions applies, what other criteria will be used for the selection of the polluter?

My next question is: how hard must the authority try to find the polluter? We have to remember—we shall come to this later—that if the authorities fail to find the polluter, the landowner may he liable. We may be talking about many millions of pounds. The question of how hard the authority has to try to find the polluter is therefore significant.

Should not the authority be responsible for allocating the responsibility as between the polluters? And what happens if the polluter is found but cannot pay the whole cost—or even any of it? More specifically, what happens if the polluter is a company and that company has gone into liquidation? If the polluter can get off the hook by going into liquidation, that will become standard practice. As soon as any chemical works or any other polluting activity closes down, the structure of the company responsible will be changed so that it goes into liquidation. Those are my questions in relation to the polluter.

Subsection (3) of new Section 78E relates to the transfer of liabilities. What does the Bill really intend by the words,

"the liability … has been transferred directly or indirectly"

to the landowner? That seems desperately vague. For example, does the phrase include or exclude the termination of a lease or licence by the effluxion of time, the termination of a lease or licence by its surrender, or the transfer of the freehold for a price which does not make allowance for the liability of pollution? How can the landlord prevent the implied transfer of the liability?

In this context, perhaps I can quote the case of Tilmanstone colliery in Kent. When I was a boy it was owned by Pearson, Dorman, Long. Foul water was pumped out from that deep pit. I remember that it was hot. It was pumped into channels which ran across a field; it steamed. The pollution sank into the ground and affected one of the aquifers being used by the South East Kent water company. The aquifer has never been purified. After the war, the water company installed a pumping station and a seven-mile pipeline to the sea. It pumped and pumped for about three years but simply could not reduce the pollution. In the end the project was abandoned.

Who is responsible for that pollution? Is it Pearson, Dorman, Long? Was responsibility effectively transferred to the National Coal Board? If so, did the National Coal Board successfully transfer the liability to British Coal? If so, has British Coal successfully transferred the liability to the agency, and so on down the line? That is a very important question. I shall come back to it.

The landowner has residual responsibility. I, my colleagues whose names are attached to the amendment, the Country Landowners Association, the National Farmers Union and the CBI, are in agreement that the landowner or occupier should accept his share of the responsibility for pollution where he had knowledge that pollution was taking place and consented to it, or where he benefited financially from the activity which caused the pollution. New Section 78E goes far beyond that. What about the landowner or occupier who is not to blame and who has not benefited? Your Lordships may say, "How can this be'?" I shall give examples; I have divided them into three categories. There is the landowner who could not have known. This reverts to the amendment of the noble Lord, Lord Stanley of Alderley, on fly-tipping. A landowner cannot necessarily know when material is being illegally dumped on his land.

What about the landowner who has a mine driving a gallery 1,800 feet below his property? How can he know? What about the aquifer I was describing in connection with Tilmanstone pit? How can a landowner know that 10 miles away an aquifer is being polluted and that that pollution is drifting under his land? There is also, of course, the question of airborne pollution.

The second category is the landowner who could not prevent the pollution taking place—for example, a landowner who is subject to a compulsory purchase order or who has mining licences granted in respect of the ground under his land. There is also the question of the movement of contamination from neighbouring land.

Finally—an important and desperately difficult issue—what about the situation where the goalposts have been moved? I give an agricultural example because I am a farmer. When I trained in agriculture and for many years thereafter the great guru of British agriculture was Sir George Stapleton. His recommendation was "lay farming" The good guys in agriculture were those who practised lay farming. They grew grass and every three or four years ploughed it in, putting fertility and humus back into the soil and thereby producing good crops.

About five years ago we were suddenly told that ploughing grassland was wicked because it was a major contributor to nitrates in the groundwater. All those years I had been doing what I was told to do, what ADAS told me to do and what, I think, I was given subsidies to do. Suddenly, the goalposts were moved. Am Ito be punished for having acted as I did? That is only one example. There are many, and there will be many more. When new forms of pollution are discovered, technology will unearth new problems relating to human health. For example, I am told that the European Union is considering designating coal as a contaminant. That completely changes the ball game as far as abandoned colliery sites are concerned. Who will be responsible for that? It is a real question. Why should the landowner be liable?

On Second Reading the Minister said that the provision in the Bill does not alter the present position under statute and common law as regards the responsibilities of the landowner. I am sure that the Minister has been incorrectly advised. The Bill would, I am advised, greatly extend the existing liability of landowners and occupiers under statute and common law. Furthermore, it removes the defences which presently exist. My Amendment No. 150A reinstates those defences.

In my view, the objective of those drafting the Bill has been to find a scapegoat who could be made to pay if the guilty party could not be found. I am sorry that so few noble Lords are in their places because this is a very important issue. If the House wishes to connive at such injustice I shall seek an opportunity to vote on the issue at Third Reading. In the meantime, I hope that the Government will see the justice of making some change, that they will take away these amendments, consider them, and come back with some help. I beg to move.

The Earl of Lytton

My Lords, I support the amendment, to which my name is attached, and confirm my belief that there is a very substantial point of principle as to how liabilities for contamination can be transferred. Many types of contamination are new phenomena which were unknown a generation ago. Some types of chemicals that we understand now to be contaminants were marketed freely. So it is not surprising that types of land use and refuse disposal techniques involving putting materials into land which may now be regarded as potentially contaminated have produced, in some instances, significant environmental harm. I do not wish to understate that but at the time it was not realised.

Now we have the situation, so eloquently underlined by my noble friend Lord Northbourne, where practices once thought harmless are being called into question. I wrote recently to the Minister with regard to how the principles of caveat emptor and strict liability were to be reconciled. I understand clearly, that the polluter pays—a principle which I support—but I had in mind the desirability of avoiding liability falling on the innocent, which, to my mind, is an equally undesirable aspect.

I was grateful to the Minister for what I describe as a most revealing reply. It was a genuine attempt to be helpful. Perhaps I may paraphrase what I understood it to say. First, it said that the polluter should not pay twice—I accept that—and that where there had been a valid transfer of land, reflecting the pollution presence, that transaction should be respected. Of course, I understand and accept that too. Then, something more than reliance on caveat emptor might be required where there was a known polluter. Of course, I can accept that principle as well, but there is a grey area where liability may arise out of a normal transfer under what are known as the standard conditions of sale, but where the polluter cannot be identified.

I have difficulty with the phrase "cannot be found". That may be capable of being interpreted in a number of ways: to include those who were in existence once, but are no longer; on the other hand, it may not be concerned with identity alone. This group of amendments seeks to obtain some guidance on those points. For if the polluter should not pay twice how much more important morally is it that the wholly innocent owner or occupier for the time being should be shielded from liability.

By "owner", I do not mean the well-heeled large estate owner so much as the householder, the smallholder, the small businessman, the small farmer. Those are the people who need protection. I wonder whether it is the intention of the Bill that the shirt should be taken off those people's backs for liabilities as regards which, patently, they may be innocent. As the Bill stands, some polluters may get away scot free while innocent parties struggle through the courts to try to clear their names. Worse still, for many of those people who happen to be owners or occupiers it will be pure chance. That cannot be allowed to stand, and I hope that the Minister will he able to give some further guidance on that point.

Baroness Hamwee

My Lords, I support the amendments. I am grateful to the noble Lord for having tabled them. I find some of the concepts contained in the paragraph difficult. English law does not normally recognise the transfer of a liability. It is something the Americans go in for, but the English by and large do not. I accept that this is not the same as attempting to transfer a liability under a contract, for instance, but, nevertheless, there is a culture which has affected the development of the law in this country.

The noble Earl, Lord Lytton, referred to the national conditions of sale. It might be appropriate to allow the customs of sale and purchase of land to take account of the new legislation, and for the provisions to come into effect from a specified date after the Act comes into force so that the provision would not be retrospective, something with which the practitioners would have little way of dealing as a matter of normal course.

Finally, if the noble Lord, Lord Northbourne, brings the matter back on Third Reading, he may like to think not retrospectively but prospectively of some type of long-stop —some long period of time after which some of these provisions may not bite.

Lord Stanley of Alderley

My Lords, this is an important amendment. I should like to ask my noble friend the Minister the same question as did the noble Lord, Lord Northbourne: what happens if the polluter is a man of straw? Does the liability then rest with the occupier? Then—this is similar to my previous amendment—can it really be right for an innocent occupier to be responsible in such cases, or in any case? Further—this is my overriding feeling about the whole Bill—it is the cavalier attitude shown towards the innocent bystander (occupier, or whatever he or she is) throughout the Bill that I find most unattractive.

Viscount Ullswater

My Lords, Amendments Nos. I44K, 144L and I44M seek to change the potential liabilities of owners and occupiers.

First, they would remove the liability which would fall under the existing provisions to the current owner or occupier where the original polluter could not be found. That would be a clear departure from the existing position under the statutory nuisance provisions in Section 80 of Part III of the Environmental Protection Act 1990 and under the caveat emptor rule at common law. It would therefore introduce a new exemption from liability for those groups.

My noble friend Lord Stanley of Alderley should refresh his memory as to what Section 80 of Part III of the Environmental Protection Act 1990 provides, because if he did so he would understand that there is an existing liability on owners.

As I have already said in my response to my noble friend Lord Stanley's amendment on liabilities arising from fly-tipping, we are going to restore the existing exemption that the innocent victims of fly-tipping enjoy currently. But the effect of the present amendment in practice would be either that there would be no means of dealing with significant harm in some instances, or it would require the public purse—the taxpayer—to pay to improve the condition of land not currently suitable for the use to which owners are putting it. That would give those owners significant, uncovenanted gains. I do not believe that that would be justified. It is a long-established principle that owners are responsible for the condition of their land, and I believe that that should continue.

My noble friend Lord Stanley and the noble Lord, Lord Northbourne, asked me about the position where the polluter cannot afford to pay. That would not imply that any responsibility would pass to the owner. That would happen only where the polluter could not be found. That might include the case of a company having gone into liquidation. We are considering possible anti-avoidance measures to prevent that route being taken deliberately to avoid liabilities.

The noble Lord, Lord Northbourne, cited also a coal mine in Kent. I am afraid that I do not know the details of the ownership of that coal mine, but where liability as a polluter lay with British Coal, if it did, it would pass to the latter's successors in tale; that is, from British Coal to any successor body, which would normally assume its liabilities with its functions. It was not the Government's intention to create new categories of potential liabilities. However, one area in which that may have been breached is in the case of liabilities arising under these provisions solely as a result of water pollution, especially where the contaminating substances may have escaped from one site to another without the knowledge of the owner of the site now affected. The Government are considering that issue. We expect to bring forward an amendment to deal with it at a later stage.

The second aspect of Amendment No. 144K seeks to change the way in which responsibility might transfer from the original polluter to the current owner or occupier. In our debate in Committee, I suggested that that was an area which the Government wished to consider in more detail before bringing forward their own amendments. I can now set out in some more detail the position which the Government believe ought to be reached.

There must, we feel, be some manner of proof that a transfer of responsibilities has taken place. There should be something more than just an assumption that that has happened, relying solely on the principle of caveat emptor. But that leaves the difficult question of whether such a transfer needs to have been provided for expressly in a sale contract. This would, of course, be the effect of these amendments. This is particularly an issue with respect to sales of land which have already taken place. We would expect that, as a matter of good legal practice, future contracts would address this question directly where it is likely to be an issue.

On balance, we believe that there should not be a need for "express" provisions if this is interpreted as an "express" reference to liability for contaminated land rather than as a reference to liabilities arising from the ownership of land. If the terms of an individual contract can be construed as bringing about a transfer of all burdens and responsibilities there does not appear to be any reason why responsibilities associated with contamination need be assumed to have been excluded. Owners are only too happy to accept benefits associated with their land which they had not anticipated at the time of their purchase. We can see no real reason why responsibilities should be treated any differently. On this basis, I would not wish to accept these amendments.

Amendment No. 150A, which was spoken to by the noble Lord, Lord Northbourne, seeks to introduce three specific grounds of appeal against the receipt of a remediation notice, The first of these grounds of appeal would be on the grounds that the "best practicable means" had been used to prevent or counteract the effects of the contamination. Despite a superficial reasonableness, a defence along these lines would run clearly against the polluter pays principle. The Government see no reason to depart from this general principle, which is widely accepted both nationally and internationally, and to pass the costs of remediation on to the taxpayers, who had no chance at all of preventing the contamination occurring.

In practice, the existence of a provision of this kind would tic up almost any attempt to secure remediation in detailed litigation on what precisely had been the supposed best practicable means available at some time in the past. This would be particularly difficult to ascertain where there had been consecutive contaminating activities on a site.

The issue of this ground of appeal and defence to prosecution may be clouded somewhat by comparison with the defence available under the statutory nuisance provisions. In that regime, "best practicable means" is available in some cases as a defence against prosecution for non-compliance, or partial compliance, with the requirements of an abatement notice. It would not preclude the service of such a notice in the first place, as would be suggested by the current amendment. The spirit of the statutory nuisance defence is already implied in the structure of remediation notices under the contaminated land provisions. The requirements of a notice have to be "reasonable", and we also intend that there should be a ground of appeal on the basis that a requirement is unreasonable.

The second suggested ground of appeal is that of having neither caused nor knowingly permitted the contaminating substances to be in, on or under the land. That would totally disable the provisions passing responsibility to site owners or occupiers where the polluters cannot be found or where responsibilities have been transferred. For the reasons discussed earlier in the debate, the Government would not see that as justified.

The third suggested ground of appeal is that the person could not have reasonably foreseen that the land would become contaminated land. That raises all the difficulties present in the best practicable means defence, in terms of allowing polluters to evade responsibility for their actions and opening up the possibility of excessive litigation. For these reasons, the Government would not accept it. It would also be unworkable as it would be extremely difficult to ascertain whether any particular "harm" arising was reasonably foreseeable and at what point in time the test should be applied where there were a number of contaminants deposited at different times on the site.

That suggested ground of appeal raises difficult questions of comparison with the common law, where the "reasonable foreseeability" test must be satisfied in relation to damage suffered for certain tortious actions. However, the comparison is not apt. Common law actions seek to provide compensation to private parties for specific damage which has occurred. The test of "reasonable foreseeability" relates directly to the question of whether that specific damage was foreseeable. The statutory regulatory regime that we are discussing today is not seeking to provide compensation to individuals, nor is it necessarily tied to specific damage which has occurred. Instead, it is aimed at ensuring that harm to health and the environment can be prevented. For these reasons, the Government believe that them is no necessity for the same manner of provisions to be available.

I hope that, with that long explanation of why the Government are unable to accept the amendments, the noble Lord will withdraw them.

9 p.m.

Lord Williams of Elvel

My Lords, in a throwaway manner, almost as an aside, the Minister has said that he is studying the possibility of a company which is going into liquidation being prevented from avoiding liability. How precisely can one do that without rewriting all the company and insolvency Acts?

Viscount Ullswater

My Lords, I have to say, obviously, with great difficulty. The noble Lord knows only too well of the difficulties of limited companies. This is a considerable issue and that is why we are studying it most carefully.

Lord Northbourne

My Lords, I am very disappointed by the Minister's reply. He did not address the fact that this Bill enlarges and extends the liability of landowners under common law and statute as it stands at present. We must be absolutely clear about the matter. By Third Reading I shall have chapter and verse about the way in which that is happening. I do not mind whether it is difficult to investigate the problem. The courts are doing so at the moment in respect of statute and common law. Why suddenly can they not do so in respect of this Bill? I understand that it is not true to say that this Bill does not significantly enlarge the liability of landowners. If that is what the House wishes, so be it. I believe that the House may well see the injustice of the proposals. I intend to return to the matter at a later stage, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 144L and 144M not moved.]

Lord Stanley of Alderley moved Amendment No. 145:

Page 51, line 20, at end insert:

("() Subsection (3) above shall not apply where compulsory powers existed to compel the owner or occupier to grant any Interest in the land related to the activity or activities which gave rise to the contamination of the land, whether or not such powers were used.").

The noble Lord said: My Lords, it is inappropriate for the Government to impose a liability for contaminated land where compulsory powers exist. There is no provision to protect an owner from the consequences of a remediation notice where he has been obliged to grant rights on his land for coal extraction, a pipeline or other purposes because compulsory powers have been used or, more importantly, threatened. The existence of compulsory powers is an under-rated weapon in the hands of the acquirer. Their mere existence is sufficient to secure rights by the Government with what they believe is agreement but it is not really agreement.

It is surely wrong that a person should be put at risk to the extent that he is liable for all the costs of remediation if the acquiring company or body no longer exists or cannot be found. That is more probable now, given the activities of the private sector companies with the benefit of compulsory powers. Moreover, what happens if the company which is responsible has gone bust?

I was fascinated by my noble friend's remarks in regard to those problems on the last amendments, as was, I gather, the noble Lord, Lord Williams. I shall be interested to see how the Government intend to deal with that problem because it affects us all.

I suppose that the problem revolves around compulsory rights orders. Somehow or other I feel that my noble friend would prefer not to discuss such orders. They received a rather rough reception in your Lordships' House. Perhaps he would prefer to accept the amendment in lieu. I beg to move.

Viscount Ullswater

My Lords, Amendment No. 145 seeks to exempt owners where land has been contaminated as a result of activities for which compulsory powers existed to compel owners or occupiers to grant interests in their land.

Essentially, we are considering here the issue of compulsory rights orders, as my noble friend indicated. Your Lordships debated the subject at some length in the last Session when considering the Coal Industry Bill. The anxiety underlying the amendment is that landowners may find themselves facing liabilities for contamination caused by activities which they never wanted on their land and which took place only as a result of the exercise of compulsory powers. While I understand that anxiety, I do not feel that it is justified not that an exemption from liability is needed or warranted. In particular, I do not believe that an exemption would be justified merely on the ground that compulsory powers existed, regardless of whether or not they had been used in an individual case.

The existing procedures for the granting of CROs already provide two particular safeguards for the position of landowners and occupiers. First, the planning authority will require appropriate restoration and aftercare as conditions of its planning consent. Those will be enforced by the planning authority in the normal way. Secondly, compensation arrangements include provision for the landowner to recover his reasonable expenses for any works necessary to bring the land back to its previous condition.

Taken together, those measures should ensure that any liabilities in respect of contaminated land which might result would fall to the operator and not to the landowner. The requirement on the planning authorities and relevant licensing authorities to satisfy themselves as to the financial capacity of the licence applicants to meet the restoration conditions should provide further safeguards. Having given my noble friend that reassurance, I hope that he will withdraw the amendment.

Lord Stanley of Alderley

My Lords, I will withdraw it, but we return to the same question, and I see that the noble Lord, Lord Williams, is smiling. What happens if the operator has gone walkabout or bust and is no longer there? In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 145A:

Page 51, line 33, at end insert ("in accordance with section 78R below").

The noble Earl said: My Lords, my noble friend spoke to this amendment when he moved Amendment No. 128C. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 145E and 145C not moved.]

Lord Northbourne moved Amendment No. 145D:

Page 51, line 33, at end insert:

("() In the case referred to in paragraph (a) of subsection (4) above, the guidance shall include provision to ensure that liability is shared between the persons in proportion to their responsibility for the contamination.").

The noble Lord said: My Lords, the noble Lord, Lord Peyton of Yeovil, has asked me to speak also to his amendment, as mine is roughly the same as his amendment. The object is to avoid an extremely unfortunate situation which will undoubtedly arise if such an amendment is not accepted; namely, that there will be a cat fight between the various parties responsible for pollution.

In discussing an earlier amendment I asked the noble Viscount which body the local authority will go for as a matter of choice from among a selection of potential polluters. If the answer is that the local authority can go for whichever it likes, and then that body has to take all the others involved through the courts to achieve an equitable solution, it will be nothing but a feast for the lawyers. It seems to me that the responsibility should be with the local authority to allocate responsibility for pollution in proportion to the contribution which was made to the pollution by each of the polluters. I beg to move.

The Earl of Lytton

My Lords, I should like to speak briefly in support of the amendment. It seems to me that equity demands that there should be a proper apportionment and that we should not follow what is commonly described as the American pattern under the "superfund" where vast sums of money seem to have been spent in pursuing various people who, in turn, then pursue others. The purpose of the Bill is surely to ensure that maximum resources are applied to cleaning up the environment for the benefit of the present and future generations. I believe that the amendment merits careful consideration.

9.15 p.m.

Viscount Ullswater

My Lords, Amendment No. 145C and, for that matter, Amendment No. 145D moved by the noble Lord, Lord Northbourne, both seek to insert onto the face of the Bill the requirement that, where two or more persons have caused or knowingly permitted contamination to occur, liability for remediation should be apportioned between them in accordance with their share of responsibility for the contamination.

As I stated in our debate at Committee stage, that principle is fine in so far as it goes. In the situation where different persons have separately contributed to the creation of an overall problem with contamination, it is entirely the right principle to follow. The Government would wish to reject totally any suggestion that liability in those circumstances should be joint and several. However, that principle cannot properly address the question of how to allocate responsibility where different people have had effective control over the same contamination, and its possible effects, in sequence. One person may have "caused" the substances to be present, but another person, in "knowingly permitting" them to remain, may have brought about the circumstances under which they came to result in significant harm. In such cases, it may he entirely appropriate for the whole responsibility for remediation to rest on the person with the most recent involvement with the contamination.

However, the amendments before us would not allow a judgment of that kind to be made. On that basis, I would not wish to accept them. Therefore, I would ask the noble Lord to withdraw his amendment.

Lord Northbourne

Yes, my Lords, I will do so. I can foresee considerable difficulties in deciding who will pay and also enormous legal costs being involved. I accept what the Minister said. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 145E:

Page 51, leave out lines 34 to 48.

The noble Earl said: My Lords, my noble friend spoke to the above amendment when dealing with Amendment No. 128C. I beg to move.

On Question, amendment agreed to.

Viscount Ullswater moved Amendment No. 146:

Page 52, line 1, leave out ("appears to have") and insert ("has").

The noble Viscount said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 147, 148, 149 and 150. The effect of these technical amendments is to make sure that the basic test of liability for a polluter—someone who has caused or knowingly permitted contaminants to be present—is the same in new Section 78F as it is elsewhere in this part of the Bill. The question should be one of fact, and not of appearance. Following an amendment moved in Committee by the noble Lord, Lord Northbourne, I undertook to bring forward the amendments. I am happy to be able to do so now. I beg to move.

On Question, amendment agreed to.

Viscount Ullswater moved Amendments Nos. 147 to 150:

Page 52, line 16, leave out ("appears not to have") and insert ("has not"). Page 52, line 23, leave out ("harm, or") and insert ("significant harm is being caused, or there is a significant possibility of such harm being caused, or that"). Page 52, line 28, leave out ("appears not to have") and insert ("has not"). Page 52, line 36, leave out ("harm, or") and insert ("significant harm is being caused, or there is a significant possibility of such harm being caused, or that"). Page 52, line 40, leave out ("appears to have") and insert ("has"). Page 53, line 3, leave out ("it appears that").

On Question, amendments agreed to.

[Amendment No. 150A not moved.]

Lord Elis-Thomas moved Amendment No. 151:

Page 53, line 14, at beginning insert:

("Any aggrieved person, or").

The noble Lord said: My Lords, this group of amendments also relates to the transference from the traditional statutory nuisance regime into the new regime proposed in the Bill. The amendments concern particularly the rights of citizens to achieve an abatement of a nuisance by applying to the magistrates' court to ask for that nuisance to be abated. Of course, that right is abolished by the Bill in that contaminated land is taken out of the statutory nuisance regime, as we have already debated, and is not to be replaced by a similar right for citizens in the new system proposed under the Bill.

The intention of Amendment No. 151 is to provide an equivalent citizens' right within the new clean-up regime. In my view, it would mean that the UK Government would in fact honour commitments in Principle 10 of the Rio Declaration. Amendments Nos. 157 and 158 similarly give an "aggrieved person" the ability to complain to a magistrates' court to require an enforcing authority to act to clean up land in accordance with a remediation notice where the person upon whom it was served has been convicted for not complying with it. Again, in that case, the transference from the previous legislative structure to the present one means that there will be no circumstance in which a local authority can be required to clean up contaminated land. It is my view that there should continue to be a local authority public sector involvement in this activity.

Under the present structure, if an aggrieved citizen applies to the magistrates' court for the abatement of a statutory nuisance from contaminated land the magistrates may order the local authority to abate the nuisance if a person against whom an order was originally made is convicted of failing to comply with a clean-up order. The intention of the amendments is to restore that right.

I believe that as we move into a new structure of environmental protection and of reduction of pollution it is important that we should not destroy existing rights which have worked well, but should increase the rights of citizens to take action to protect the environment. I beg to move.

Viscount Ullswater

My Lords, Amendment No. 151 moved by the noble Lord, Lord Elis-Thomas, would permit an aggrieved person to appeal against a remediation notice served on someone else. The intention is to allow the aggrieved person to ask the court to substitute alternative, possibly more stringent, remediation requirements than were contained in the original notice.

Not only would that be a totally novel approach to appeals; it would also, in our opinion, be entirely unjustified. The proper route by which individuals and companies can seek remedies for harm or nuisance caused to them by other individuals is through private actions at common law.

Enforcing authorities will have regard to statutory guidance in deciding what steps by way of remediation they are to require in any individual case. This will address the task of preventing the occurrence of the harm or water pollution which led to the land being identified as contaminated land, and it will do so in a technically robust way. There should therefore be nothing for the supposedly aggrieved person to be worried about, unless he wished to attempt to substitute his judgment of the remediation standards required on the site, replacing the requirements developed by the professional staff in the enforcing authority and the technical approach set out in the statutory guidance. In the unlikely case where an enforcing authority acted unreasonably or ultra vires, an aggrieved person would have the usual remedy of seeking judicial review of the decision taken.

Amendments Nos. 157 and 158 are somewhat different, in that, as the noble Lord indicated, there is a precedent contained in the statutory nuisance provisions in Part III of the Environmental Protection Act 1990 for an aggrieved person having the right to ask a court to order a local authority to act to abate a nuisance. The amendments seek to produce an equivalent effect in these contaminated land powers.

However, despite the apparent precedent in other legislation, the Government do not believe that it would be justified to follow it now. It may be instructive to note that the Department of the Environment is unaware of any cases where this supposed right of individual action has been used to deal with contaminated land. The Government's intention in bringing forward these provisions and in developing the statutory guidance which will support it is to set up a modem, structured regulatory regime run by technically competent public authorities. This will enable the environmental priorities to be addressed in a systematic and ordered way. Much of this will take place in the way in which local authorities go about inspecting their areas to identify contaminated land, concentrating on the more vulnerable areas. But there will also be a need to allocate resources in terms of money and key staff in a structured way to deal with those sites where the appropriate person is either unwilling or unable to pay for the costs of remediation himself. Allowing what would essentially be freelance regulators to step in to the process and overturn those priorities would serve only to divert the available resources away from the more urgent and serious cases.

With that explanation I ask the noble Lord not to press his amendment.

Lord Elis-Thomas

My Lords, I am grateful to the noble Viscount for his detailed response. I can assure him that it was not the intention of the amendments to set up freelance regulators. On the basis that he intends to set up a modern, structured, regulatory regime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 151A to 154 not moved.]

Lord Williams of Elvel moved Amendment No. 155:

Page 54, line 26, leave out first ("of") and insert ("not exceeding").

The noble Lord said: My Lords, in moving the amendment, it may be for the convenience of the House if I speak to Amendment No. 156. Both amendments are designed to give the judiciary some opportunity to modify the daily fine. In the Bill as drafted, the daily fine is mandatory. In the light of the difficulties that we have encountered in previous debates on remediation notices, it would seem that the judge should be given some opportunity to modify the fine if he deemed it appropriate. I beg to move.

Viscount Ullswater

My Lords, Amendment No. 155, moved by the noble Lord, and Amendment No. 156 to which he spoke, seek to introduce flexibility into the level of fine applicable for each day on which non-compliance with a remediation notice continues after conviction for the offence. That would depart from similar provisions in Section 80(5) of the Environmental Protection Act 1990 and to maintain consistency we would need to move consequential amendments to a very large number of similar provisions. We would not wish to do that without very good reason. Having said that, I take note of what the noble Lord said. However, I ask him to withdraw the amendment.

Lord Williams of Elvel

My Lords, I hear what the noble Viscount says: "It is here because it is here because it is here, because it is in other enactments and we do not wish to change those other enactments" . I am not sure that it would not be wise to consider all the other enactments. The position seems slightly absurd. However, I see that we shall not get far. However, I hope that the noble Viscount will consider the issue, and perhaps when the Bill reaches another place, it might consider the matter seriously. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 156 to 158 not moved.]

Lord Northbourne moved Amendment No. 158A:

Page 55, line 12, at end insert ("and whether having regard to all the circumstances it is reasonable to recover the costs from the person.").

The noble Lord said: My Lords, in moving Amendment No. 158A, I also speak to Amendment No. 158B. Although they are on slightly different points, the amendments are intended to be helpful suggestions of ways in which the Minister might be able to help a little on the question of liabilities of landowners.

Amendment No. 158A applies the test of reasonableness regarding whether a local authority which undertook work because it was not undertaken by the person on whom the notice was served should then seek to recover the cost. I hope that the noble Viscount will be able either to accept the amendment or to give me an assurance that the test of reasonableness is already implicit in the wording of the Bill.

Amendment No. 158B is an important suggestion. There is a very real danger that the cost of remediation in cases of contamination will impose liabilities upon the person responsible far in excess of the value of the land. That may be appropriate where that person has recklessly allowed pollution to take place. However, let us take the example of someone who inherits a piece of land. Let us consider the classic widow or orphan who has a reasonable competence and a reasonable level of income. Auntie Joanna leaves her a piece of property which subsequently turns out to be contaminated. That person might suddenly find herself wiped out, liable for millions of pounds of rehabilitation. She might have her whole assets removed, and be left destitute.

That clearly is not the intention of the Act. I believe that such a situation should be provided for. If we are talking about the innocent landowner, it seems reasonable that the amount of liability for remediation should be limited at least to the amount that he or she can recover from the sale of the land after remediation has been carried out and the liability should not impinge on such other assets as he or she has. I beg to move.

The Earl of Lytton

My Lords, I support the amendment, and perhaps I may add a little to the example of the widow or orphan. How would the Minister see the situation if, on inspection, the legacy were found to be contaminated land and the prospective beneficiary repudiated the legacy? What would happen then? Would the executor be responsible? What is the extent of the executor's liability? Is it the extent of the assets or how is it measured? That important point should be covered, otherwise the situation becomes like the National Lottery in reverse: the first prize for getting all the numbers in a row is complete financial ruin. I do not believe that it should he allowed.

9.30 p.m.

Viscount Ullswater

My Lords, both these amendments would change the provisions relating to the recovery of costs by an enforcing authority where it has acted on the default of the recipient of a remediation notice. Amendment No. 158A would require an enforcing authority to have regard to whether, in the circumstances, it was "reasonable" to seek to recover its costs.

It is not at all clear on the face of the amendment in what circumstances it might be held to be unreasonable to recover costs, except where questions of hardship were involved. That would potentially leave the question open to considerable doubt and legal argument on individual cases. This would itself be undesirable, but it might also open up the opportunity for the legitimate recipients of remediation notices to attempt to argue that they should not really have been held responsible and should not have received the notice. The Government could not accept the creation of such a back-door attempt to undermine the basic liability regime set out in these provisions.

I would point out that, in any case, the power to recover costs given to enforcing authorities is discretionary, and the Government would expect them to act reasonably in this respect, within the wider sense of the term. I would also point out that in preparing a remediation notice in the first place the enforcing authority can only specify things which are reasonable, having regard to the cost which is likely to be involved and the pollution in question.

Amendment No. 158B would seek to limit, to the value of the remediated land, the potential liability of any owner or occupier who was deemed to be the appropriate person to receive a remediation notice on account of his ownership or occupation. While calculations of that kind might he relevant in cases of potential hardship among home owners, they would not necessarily be appropriate in all cases.

The first effect of a provision of this kind would be to give such persons a potentially major incentive not to comply with the original remediation notice, because their exposure to any recovery of costs incurred by the enforcing authority would be limited. That would be perverse.

The second effect of the amendment would be to shield owners from the potentially negative net value of heavily contaminated land. The Government do not believe that this could be justified as a general principle. Even without having to meet the costs of regulatory requirements, owners in those circumstances would not be able to sell their land, as any purchaser would have to pay the costs of the necessary remedial action before he could seek to redevelop the site, for example. That could create another perverse incentive for owners to seek to be served with remediation notices, so that they could benefit from the limited liabilities they would then face. They would simply fail to comply with the notice and the public purse would then effectively bear the balance of the cost of any works in excess of the value of the site. The Government do not believe that the amendments would provide workable formulae for the recovery of costs, and would not wish to accept them.

To address the point put to me by the noble Earl, Lord Lytton, if a beneficiary repudiates a legacy, then I believe the legacy would pass to the next beneficiary named in the will, and maybe eventually to a residual beneficiary. But we are taking matters quite far in this context. Having explained where the Government stand on these amendments, I hope that the noble Lord will withdraw them.

Lord Northbourne

My Lords, the noble Viscount has rejected my efforts to produce some helpful suggestions. I am afraid that I have to accept that the problem is the injustice of the basic liability regime to which he referred; and I am afraid it is on that issue that we shall have to continue to attack. The injustice to the innocent landowner is, in my estimation, monstrous. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 158B not moved.]

Lord Williams of Elvel moved Amendment No. 159:

Page 56, line 29, at end insert:

("() An enforcing authority shall, for the purpose of enforcing in Scotland a charge under this section, have all the same powers and remedies under the Conveyancing and Feudal Reform (Scotland) Act 1970 as if it were a heritable creditor in possession.").

The noble Lord said: My Lords, in moving this amendment, it may be for the convenience of the House if I also speak to Amendment No. 160.

This amendment was suggested to us by the Law Society of Scotland. It would allow a local authority to create a charging order in order to obtain a security to recover costs incurred by the authority in carrying out the requirements of the remediation notice. It is clear to us that charging powers for Scottish local authorities require to be on all fours with their English counterparts. The amendment achieves this aim by enabling Scottish authorities to create a security for the purposes of recovering those expenses. I hope very much that the Government will see the merit of this argument. I beg to move.

The Earl of Lindsay

My Lords, at present the Bill makes provision in new Section 78J for a local authority in England and Wales to serve a charging notice on any person who fails to comply with any of the requirements of a remediation notice, and where the authority has incurred expenditure in carrying out work which that person should have done. Amendments Nos. 159 and 160, moved by the noble Lord, Lord Williams, would seek to introduce a similar system in Scotland.

I understand that the existing conveyancing practices in Scotland do not include the use of charging notices of this kind, and that the introduction of such a system would require fundamental changes to be made to the conveyancing system. I see no advantage in pursuing such changes and believe that the existing mechanisms under Scots law for recovering sums due are indeed adequate. I am therefore content that the Scottish local authorities should seek recovery through the courts of expenditure incurred under this section. I hope that, with that explanation, the noble Lord will withdraw his amendment.

Lord Williams of Elvel

My Lords, I am grateful to the noble Earl. His opinion obviously differs from that of the Law Society of Scotland. All I can do in my ignorance is to report what he said to the Law Society of Scotland and take the society's view. I hope that on his side he will check what he said with the lawyers in the Scottish Office and make sure that he is right. We shall possibly have to fight the matter out at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 160 not moved.]

Lord Coleraine moved Amendment No. 160A:

Page 57, line 24: at end insert:

(" (e) any information provided by the appropriate person or by the owner or occupier of land for the time being of action taken or information obtained pursuant to a remediation statement or remediation notice.").

The noble Lord said: My Lords, new Section 78L will provide that,

"Every enforcing authority shall maintain a register containing prescribed particulars of or relating to",

such matters as remediation statements and remediation notices. My noble friend has already replied in relation to an amendment moved by the noble Lord, Lord Northbourne, that it is not possible to require authorities to give certificates of compliance with remediation notices. Presumably one could not expect them to put anything on the register to say that an appropriate person had complied. On the other hand, the bare facts on the register will tend to make land unmarketable. This amendment is intended to alleviate that situation by providing that the appropriate person or the landowner may give details of how he has complied with a remediation notice and that those details will be entered on the register. It seems to me that that goes some way to meeting the points so reasonably made by the noble Lord, Lord Northbourne, earlier this evening. I hope that my noble friend can be encouraging on this occasion. I beg to move.

Viscount Ullswater

My Lords, Amendment No. 160A, moved by my noble friend Lord Coleraine, is close to the Government's desired solution for further information which might be included on the register. This is a point to which, as my noble friend indicated, I replied in a positive way when replying to an amendment of the noble Lord, Lord Northbourne. It would enable the recipient of a remediation notice, or the owner or occupier of the land where that is different, to have an opportunity to add his own information to the register of regulatory actions describing what has been done in pursuance of a remediation notice. Indeed, but for some minor concerns with the precise wording of the amendment, I should have been minded to accept it. Therefore, I hope that my noble friend will forbear and await a government amendment on this matter. Having said that, I hope that he will consider withdrawing the amendment.

Lord Coleraine

My Lords, I am very glad to learn that I correctly sensed the way that the wind was blowing when my noble friend replied to the amendment of the noble Lord, Lord Northbourne. I am happy to beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Viscount Ullswater moved Amendment No. 161:

Page 57, line 29, at end insert:

("() It shall be the duty of each enforcing authority—
  1. (a) to secure that the registers maintained by them under this section are available, at all reasonable times, for inspection by the public free of charge; and
  2. (b) to afford to members of the public facilities for obtaining copies of entries, on payment of reasonable charges;
and, for the purposes of this subsection, places may be prescribed by the Secretary of State at which any such registers or facilities as are mentioned in paragraph (a) or (b) above are to be available or afforded to the public in pursuance of the paragraph in question. () Registers under this section may he kept in any form.").

The noble Viscount said: My Lords, during the debate in Committee on this Bill, in response to an amendment moved by the noble Lord, Lord Carmichael of Kelvingrove, I confirmed that the registers of regulatory action to be kept under Section 78L were intended to be open to public inspection. The amendment appeared in the Marshalled List. I am not sure whether the noble Lord moved it, but I certainly took note of it.

Amendment No. 161 seeks to make that point explicit by requiring that the registers maintained by the various enforcing authorities should be available for public inspection free of charge and that facilities should be provided for the public to make copies of entries on payment of reasonable charges. The provisions are in common form with equivalent provisions relating to regulatory registers elsewhere in the Environmental Protection Act 1990. Given that both the noble Baroness, Lady Hilton, and the noble Lord, Lord Elis-Thomas, moved similarly worded amendments, I hope that your Lordships will feel able to accept the wording of my amendment.

However, my amendment goes somewhat further, in that it also provides for the Secretary of State to prescribe places at which the registers and facilities should be available to the public and permits the registers to be kept in any form. That is in common form with amendments to the other register provisions in EPA 1990 which are being made in Schedule 18 to the Bill. I hope that these will be equally acceptable.

Unfortunately, we have not yet been able to produce the amendment that I promised on the inclusion of further information on the registers relating to actions undertaken by the appropriate person to comply with the terms of a remediation notice. However, I can confirm that it is still our intention to do that at a later stage. I beg to move.

Lord Carmichael of Kelvingrove

My Lords, I thank the Minister. I am grateful to him. I remember moving the amendment and gave the example of the registry house in Edinburgh, where one can go and obtain copies. I am glad that the Minister has come just about as far as we expected. I thank him for that.

On Question, amendment agreed to.

[Amendment No. 162 not moved.]

[Amendment No. 163 had been withdrawn from the Marshalled List.]

[Amendment No. 163A not moved.]

Baroness Hilton of Eggardon moved Amendment No. 164:

Page 58, line t7, at end insert:

("Power of enforcing authority to vest land in itself.
  1. .—(1) Where no appropriate person can be found after diligent enquiry the enforcing authority may execute a declaration vesting the land in itself.
  2. (2) The Secretary of State may by regulations specify the form and content of the notices announcing the intentions of the enforcing authority to make such declaration, to be exhibited publicly in such places and at such minimum period as he prescribes prior to the execution of a declaration under subsection (1) above.
  3. (3) The enforcing authority may thereupon carry out any act by way of remediation, and may make such provision for the use of the land as it determines to be in the public interest, and may for that purpose enter into such arrangements with any other person as it deems necessary.").

The noble Baroness said: My Lords, we come again to amendments which we did not move at Committee stage owing to the lateness of the hour. Since then, I have exchanged letters with the Minister and I am grateful to him for his detailed response to the points I put to him on this matter.

This is an attempt to provide local authorities with the necessary power and means to develop town centres. It is in line with government policy, as most recently expressed in the document dealing with out of town shopping centres, which said that the Government desired to revitalise town centres. There are many areas of our towns and cities which continue to lie derelict and are wastelands because of old industrial processes that have been carried out there. Amendment No. 164 attempts to deal with what are called orphan sites, where the owners can no longer be traced. It will give local authorities a simple means to adopt them. At present there are complicated processes to enable local authorities to carry this out, but this will provide a simple statutory means to enable local authorities to take charge of such sites, include them in their structure plans and develop them.

Amendment No. 167 gives local authorities the means whereby they can develop such sites in consortia with business, central government and so on. As the Minister has said, the Government provide some funds to develop city centres under the urban regeneration agency, English Partnerships and various forms of city regeneration. But such measures are patchy and some are dependent upon competitions. That always seems to be a very strange way to ensure that we develop our cities. For example, City Challenge has dealt with some of the problems that are open to more entrepreneurial solutions but may not have dealt with those areas that are so derelict and depressed that they cannot put in a decent bid. Competition may work against cities which are in most need.

We are concerned that it is much easier for developers to adopt greenfield sites, where they do not have to clear away historic pollution and where access is easier. There are all sorts of reasons why they prefer to adopt greenfield sites rather than what are called brownfield sites. This amendment is an attempt to provide a framework and means whereby local authorities can regenerate cities and towns and relieve some of the pressure on the countryside, which is part of what any environment Bill should attempt to address. I beg to move.

9.45 p.m.

Baroness Hamwee

My Lords, it is unfortunate that we come to this so late. I merely add my voice to what has been said by the noble Baroness. Public expectations have turned around quite remarkably over the past few years. There is much greater understanding of the need to develop city centres and the jeopardy in which the non-development of city centres puts greenfield sites. Clearly, the Government recognise this, though, sadly, in the case of out of town retail centres, for example, perhaps too many applications have flowed under the bridge. We shall see. However, the aspirations and the means are still a long way apart. I support the amendment as an attempt to bring them closer together.

Viscount Ullswater

My Lords, Amendment No. 164, moved by the noble Baroness, Lady Hilton of Eggardon, would give a local authority power to vest contaminated land in itself where there was no person upon whom a remediation notice could be served. Although the total number of sites where that circumstance would occur is probably very small, the Government accept that without some available procedure a local authority will otherwise be unable to exercise its duties to secure the remediation of those sites. However, land may be acquired compulsorily by local authorities for many different purposes under a range of powers. If there is no specific compulsory purchase power, local authorities may also acquire land compulsorily under Section 121 of the Local Government Act 1972 for the purposes of many of their statutory functions which involve the holding or provision of land.

When an authority has been authorised to use compulsory purchase powers but the owners are unknown or untraceable, the authority may serve the relevant statutory notices by leaving them at the site. It may also pay compensation into court and vest land in itself by executing a general vesting declaration. Alternatively, it may pay compensation into court and execute a deed poll, after which the land vests in the authority.

Amendment No. 167 would give a local authority an enabling power to draw up plans for contaminated land in its area for the purposes of securing its return into effective use. The Government are certainly keen to see contaminated land brought back into effective use. In support of that objective, we have made available considerable sums of public money—in the order of £250 million a year—to support regeneration through dealing with land.contamination. This has been provided both to local authorities through, as the noble Baroness said, derelict land grant, and also through city grant and the work of the urban development corporations, Scottish Enterprise and the Welsh Development Agency. Since the start of the current financial year, English Partnerships has also been in full operation, and it recently announced details of its new investment fund which will replace the city grant and derelict land grant programmes.

Local authorities already have statutory powers to consult and to make plans for regeneration purposes, particularly as part of their development and planning control powers. In London and the metropolitan areas, councils produce unitary development plans setting out their policies, including those aimed at the improvement of the physical environment. Outside those areas, the district councils prepare local plans within the framework of county level structure plans; authorities are under a duty to include policies in respect of the improvement of the physical environment in their structure plans.

Planning Policy Guidance Note PPG12, Development Plans and Regional Planning Guidance, explicitly refers in this context to policies aimed at reclaiming contaminated and derelict land so that it can be brought back into use. Further guidance for local planning authorities on framing development plan policies and on controlling the development of contaminated land is set out in PPG23, Planning and Pollution Control. The Government do not therefore believe that the amendment is necessary. Having said that, I hope that the noble Baroness will withdraw her amendment.

Baroness Hilton of Eggardon

My Lords, it is disappointing that we have not had a more favourable response to the amendments. The local authorities feel, as I do, that there are insufficient powers and means for dealing with contaminated sites in town centres. We are therefore disappointed by the Government's response. However, I do not intend to press the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Ullswater moved Amendments Nos. 164A to 164D:

Page 58, line 22, leave out from beginning to ("Part") in line 24 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, this").

Page 58, line 27, leave out ("harm or") and insert ("significant harm is being caused, or there is a significant possibility of such harm being caused, or that").

Page 58, line 32, leave out ("harm, or") and insert ("significant harm is being caused, or there is a significant possibility of such harm being caused, or that").

Page 58, line 47, after ("(a)") insert ("significant").

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

On Question, amendments agreed to.

Viscount Ullswater moved Amendment No. 165:

Page 59, line 9, at end insert:

(""Application to the Isles of Scilly.

  1. 78Q.—(1) Subject to the provisions of any order under this section, this Part shall not apply in relation to the Isles of Scilly.
  2. (2) The Secretary of State may, after consultation with the Council of the Isles of Scilly, by order provide for the application of any provisions of this Part to the Isles of Scilly; and any such order may provide for the application of those provisions to those Isles with such modifications as may be specified in the order.
  3. (3) An order under this section may—

  1. (a) make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and
  2. (b) contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate, including provision saving provision repealed by or under any enactment.".").

The noble Viscount said: My Lords, this is a technical amendment to ensure that we would be able to provide for the contaminated land provisions to be applied to the Isles of Scilly after consultation with the Council of the Isles of Scilly. If we did not have this power, it could result in there being no legislation in force covering contaminated land applicable in the isles and in there not being appropriate powers to make any necessary modifications. I think noble Lords will agree that to proceed on this basis to reflect the particular institutional arrangements in place on the islands is the right thing. I beg to move.

On Question, amendment agreed to.

Viscount Ullswater moved Amendment No. 165A:

Page 59, line 9, at end insert:

("Supplementary provisions with respect to guidance by the Secretary of State.

  1. 78R.—(1) Any power of the Secretary of State to issue guidance under this Part shall only be exercisable after consultation with the appropriate Agency and such other bodies or persons as he may consider it appropriate to consult in relation to the guidance in question.
  2. (2) A draft of any guidance proposed to be issued under section 78A(2) or (8A), 78B(1A) or 78E(4) above shall be laid before each House of Parliament and shall not be issued until 227 after the period of 40 days beginning with the day on which the draft was so laid or, if the draft is laid on different days, the later of the two days.
  3. (3) If, within the period mentioned in subsection (2) above, either House resolves that the guidance, the draft of which was laid before it, should not be issued, the Secretary of State shall not issue that guidance.
  4. (4) In reckoning any period of 40 days for the purposes of subsection (2) or (3) above, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
  5. (5) The Secretary of State shall arrange for any guidance issued by him under this Part to be published in such manner as he considers appropriate.".").

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

On Question, amendment agreed to.

Lord Crickhowell moved Amendment No. 166:

Page 59, line 9, at end insert:

(""Default by local authority.

  1. .— (1) If the, Secretary of State is satisfied that a local authority has failed in any respect to discharge any function under this Part which it ought to have discharged, he may make an order declaring the authority to be in default.
  2. (2) The failure to discharge any such function may be a failure in a class of case to which the function relates or a failure in a particular case.
  3. (3) An order made under subsection (1) above which declares an authority to be in default may, for the purpose of remedying the default, direct the authority ("the defaulting authority") to perform any function specified in the order (whether in relation to a class of case or a particular case) and may specify the manner in which and the time or times within which the function is to be performed by the authority.
  4. (4) If the defaulting authority fails to comply with any directions contained in such an order the Secretary of State may, instead of enforcing the order by mandamus, make an order transferring to himself any function of the authority specified in the order, whether in relation to all the classes of case to which the function relates or to such of those classes or, as the case may be, such particular case as is specified in the order.
  5. () Where any function of a defaulting authority is transferred under subsection (4) above, the amount of any expenses which the Secretary of State certifies were incurred by him in performing the function shall on demand be paid to him by the defaulting authority.
  6. (6) Any expenses required to be paid by a defaulting authority under subsection (5) above shall be defrayed by the authority in like manner and shall be debited to the like account, as if the functions had not been transferred and the expenses had been incurred by the authority in performing them.
  7. (7) The Secretary of State may by order vary or revoke any order previously made by him under this section.
  8. (8) An order transferring any functions of a defaulting authority may provide for the transfer to the Secretary of Slate of such of the property, rights, liabilities and obligations of the authority as he considers appropriate; and where such an order is revoked the secretary of State may, by the revoking order or a subsequent order, make such provisions as he considers appropriate watt respect to the property, rights, liabilities and obligations held by him for the purposes of the transferred function.
  9. (9) Any order under this section may include such incidental, supplemental and transitional provisions as the Secretary of State considers appropriate.
  10. (10) This section shall not apply to Scotland.".").

The noble Lord said: My Lords, when my noble friend Lord Mills moved a similar and related amendment in Committee it was strongly resisted on the perhaps understandable ground that it appeared to be an attempt to allow the agency to take over the functions properly assigned to local authorities. My noble friend was aiming to ensure that, if for any reason local authorities failed to carry out the functions effectively, there was a fall-back position.

This amendment replaces the original attempt to transfer the responsibility to the agency with a proposal that we should place the default power with the Secretary of State. There is nothing very original about that because it is a frequent provision in a whole range of Bills. When speaking on the last occasion about this matter, my noble friend referred to the powers under the statutory nuisance provisions in Part III of the Environment Protection Act to deal with the problems posed by contaminated land. He pointed out that those powers were extensively used.

What he did not point out, although it seems relevant, is that there are default powers as regards the statutory nuisance provisions under Part III of the Environment Protection Act. I suppose it can be argued that local authorities have used those statutory nuisance powers extensively partly because there is a default power behind them. My noble friend's remarks can be found in the Official Report of 31st January at col. 1437.

I remain convinced that the Bill should include a default power, not because of any general failure on the part of local authorities in the past, but in recognition of the fact that, for a variety of reasons such as scarcity of resources and specialist expertise, there might be particular difficulties at some sites which would prevent local authorities acting effectively. Earlier this evening we debated an amendment on special sites. If my noble friend introduces an amendment at a later stage that picks up that special site provision effectively, I suppose that that will slightly weaken the requirement for default powers to go to the Secretary of State.

The case is strong and the form of provision is found in other administrative statutes. The exercise of default powers by the Secretary of State would be discretionary; the local authority would have an opportunity to comply with any directions given by the Secretary of State and only if the local authority then failed would the Secretary of State have to act. It is a reasonable proposal and, in view of the fact that the original suggestion has been modified, I hope that my noble friend may feel able to accept it. I beg to move.

Baroness Hilton of Eggardon

My Lords, I oppose this amendment. Naturally, the local authorities do not wish to be placed in a subservient position to the agency. I note that there is no suggestion that local authorities might be able to suggest that the agency was acting in default and that the Secretary of State should take over. It is merely local authorities which are viewed with suspicion.

The amendment is also unnecessary in the sense that it is the agency and not local government which has the responsibility for taking action as regards pollution from contaminated land to controlled waters. Moreover, local government has a good record in managing and remediating contaminated land. In the current year, for example, nearly £12 million has been made available by the Department of the Environment for supplementary credit approvals for contaminated land. Councils have bid in excess of £37 million, so it is clear that they are active in the area at present. There is no suggestion that they are lagging or not doing the appropriate things.

Moreover, the amendment threatens the integrated strategic approach to contaminated land which is laid down in the Bill. If contaminated land is to be dealt with in a strategic fashion, it is essential that there should be a partnership between local authorities and the agency. The local authorities should not have constantly to look over their shoulders and wonder whether they are going to be reported to the Secretary of State for not having carried out appropriate functions. It is essential that they work together as equal partners.

The understanding in the Bill is that contaminated land is essentially a local problem which requires local identification and management, but according to guidance issued by the agency. Such a partnership cannot survive or prosper if either of the partners believes that the other one cannot be trusted and must be placed in a subservient position in relation to them.

The agency is the best organisation to work with local government in determining appropriate standards and cannot, of course, be in a position to undertake the work itself. If the agency attempts to intervene over particular cases or sites by suggesting that the matter is not appropriate for local government, that will undermine the whole strategy which the authorities have carefully developed to cover their entire areas. For that reason alone, the amendment is misguided.

10 p.m.

Viscount Ullswater

My Lords, Amendment No. 166, which has been moved by my noble friend Lord Crickhowell, would enable the Secretary of State to declare a local authority to be in default for failing in any respect to discharge a function, to direct that local authority to carry out a function and, if it fails to comply with such a direction, to transfer the relevant functions to himself and recover his expenses in carrying out that function from the local authority.

My noble friend tabled an amendment in Committee with a similar intent, but which would have allowed a transfer of functions to the agency as opposed to the Secretary of State. The current amendment is, on that basis, better than the earlier version. However, I agree with the noble Baroness that it is still unnecessary, and undesirable.

There is no evidence that local authorities will fail significantly to exercise their functions under the powers. In any case, there is an argument that if they do fail, this should properly be a matter for local political judgments and remedies. The national report on the state of contaminated land which the agency will produce will also potentially reveal where any individual local authorities are doing little to exercise their function. To that extent, it would serve as a shaming mechanism.

It also gives the Secretary of State the power to make an order transferring any local authority's functions to himself and to recover his costs incurred in carrying out the function from the relevant authority. I do not consider it appropriate to transfer the functions of an elected local authority directly to central Government in that way. Therefore, I cannot approve the amendment and I ask my noble friend to withdraw it.

Lord Crickhowell

My Lords, I suppose that in some ways we should welcome the Government's new-found concern for the independence and freedom of local government. If that is the case, I wonder why it was as recently as 1993 that default provisions were introduced into the Clean Air Act and why they exist in Part III of the Environmental Protection Act. However, having made my point and in the hope that my noble friend is right and that local authorities will always perform their functions splendidly, I do not intend to press the amendment tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 167 not moved.]

Clause 55 [Abandoned mines: England and Wales]:

The Earl of Lindsay moved Amendments Nos. 167A and 1678:

Page 60, line 46, leave out from ("that") to end of line 5 on page 61 and insert ("any land will, in consequence of the abandonment, become contaminated land, within the meaning of Part IIA of the Environmental Protection Act 1990,").

Page 61, leave out lines 9 and 10.

The noble Earl said: My Lords, my noble friend spoke to these amendments with Amendment No. 128C. I beg to move.

On Question, amendments agreed to.

Clause 56 [Abandoned mines: Scotland]:

The Earl of Lindsay moved Amendments Nos. 167C and 167D:

Page 63, line 15, leave out from ("that") to end of line 22 and insert ("any land will, in consequence of the abandonment, become contaminated land, within the meaning of Part IIA of the Environmental Protection Act 1990,").

Page 63, leave out lines 26 and 27.

The noble Earl said: My Lords, my noble friend spoke to these amendments with Amendment No. 128C. I beg to move.

On Question, amendments agreed to.

Clause 57 [Amendments to sections 89 and 161 of the Water Resources Act 1991]:

Baroness Hilton of Eggardon moved Amendment No. 168:

Page 63, line 38, after ("apply") insert ("to the Coal Authority or").

The noble Baroness said: My Lords, we discussed at length earlier the problems of the pollution of water due to mines in general. This group of amendments seeks to address specifically the problems of water pollution from coal mines. It seeks to place the responsibility for dealing with it quite specifically on the Coal Authority.

When I moved these amendments in Committee, I did so with the aim of seeking an effective and lasting solution to this particular problem. This subject was addressed last year during the passage of the Coal Industry Bill, and the noble Lord, Lord Strathclyde, made various statements to the effect that such mine water pollution would be the responsibility of the Coal Authority. He said:

"We do, of course, understand the concerns about the threat of pollution related to mine closures and the related concerns about the legal framework applicable to abandoned mines".—[Official Report, 26/4/94; col. 539.]

The noble Lord, Lord Strathclyde, stated last year that the Coal Authority will become the owner of all abandoned mines and will take on the responsibilities that go with the ownership of that property.

These amendments seek to place that responsibility on a statutory footing, and to bring the Coal Authority in line with other industrial sectors with regard to trade effluence.

The Minister responded to these amendments in Committee and said that all would he resolved. He said:

"The Government will expect [the Coal Authority] to go beyond the minimum standards of environmental responsibility which are set by its legal duties".—[Official Report, 26/4/94; col. 541.]

I hope that the Minister will clarify what those specific legal duties are, and in what way the Coal Authority will go beyond the minimum standards of environmental responsibility.

If it means, however, that the Coal Authority will be expected to do no more than was done by British Coal, then we can be certain that the pollution problem will worsen. The situation that exists today is clear enough testimony to the failure of British Coal in that role over the past 50 years since nationalisation. We know that there are already 150 miles of polluted rivers and streams in England and Wales, and a further 100 miles in Scotland.

The intention of the amendments is to give the Coal Authority the legislative tools that it needs. It does have sufficient finances, one would imagine, because the Government tell us that £1 billion was raised from the sale of the coal industry, and that a further £5 billion is expected from the sale of British Coal's substantial land and property portfolio. Therefore, the money is available to support the statutory duty which these amendments seek to impose on the Coal Authority.

In those circumstances, what are the statutory duties of the Coal Authority with regard to the coalfield environment? In what ways, specifically, do the Government expect the Coal Authority to go beyond its statutory environmental duties? What funding does the Coal Authority receive to deal with minewater pollution?

Finally, in view of the large sums of money that the Coal Authority will receive from the sale of its various assets and land, is it intended that some of those financial resources shall he devoted to dealing with the problem of minewater pollution? I beg to move.

Lord Stanley of Alderley

My Lords, I have some sympathy, to say the least, with the amendment, although, as I understand it, the amendment would mean that the Coal Authority would accept the first responsibility for polluted minewater, whereas I believe that the first responsibility should be on the polluter. Maybe I am wrong about that, but that is how I see it. Therefore I should like to speak to my Amendment No. 169, which follows this and which takes a very similar line.

I raised the problem of innocent occupiers being saddled with the liability for polluted minewater on 31st January. I was given, I am sorry to say, a Sir Humphrey answer—possibly in keeping with the time of the night, which I think was 12.45 a.m.

This amendment would define and protect the innocent landowner, the one who has not been the operator or played any part in the mining activity. My noble friend suggested at col. 1481 that I was trying to protect someone who had sold his interest in the mining operation. With respect, I believe that my noble friend was misinformed. Such a person could not escape liability because of Section 85 of the Water Resources Act 1991.

As the Bill is drafted, innocent owners who find, or are told, that water is percolating through their land into controlled waters are guilty because they knowingly permit it. The polluted water could come from a mine many miles away, particularly—this is likely—as the pumps may be turned off in future in abandoned mines, if that has not been done already. I have to ask my noble friend, as did the noble Baroness, to study carefully the Government's statement on polluted water at cols. 539–542 of the report for 26th April 1994, during the passage of the Coal Industry Bill.

My noble friend Lord Strathclyde then said:

Once the lease has come to an end the authority will be responsible for the mine as for any other abandoned mines".—[Official Report, 26/4/94: col. 542.]

Unless the Government were being mealy mouthed, that means, to me anyhow, that any pollution caused by an abandoned mine where the owner cannot be traced or is the man of straw about whom we have heard on many occasions—I see the noble Lord, Lord Morris, laughing—will be the responsibility of the Coal Authority.

I hope therefore that my noble friend will accept the amendment, or something like it, or will assure noble Lords that the innocent occupier can never be liable for polluted minewater in which he had no interest flowing across the land.

Lord Northbourne

My Lords, perhaps I may draw the attention of the noble Lord, Lord Stanley, to the danger of polluted minewater flowing under his land, because there is a real danger, now that many shafts are being filled with rock, of polluted water from lower strata coming up and being sucked into aquifers at higher levels. That may be a long-term problem.

Lord Dormand of Easington

My Lords, I support Amendments Nos. 168, 172 and 177 and wish to express my deep and continuing disappointment at the Government's attitude toward the issue. During the debates last year on the Coal Industry Bill we received the clear impression that the Coal Authority would be responsible for all discharges from coal mines, and that, in addition, the date of the abandonment of the mines would not be irrelevant.

Can we take it that the seriousness of the effect of minewater pollution is not in dispute? Some of us have on numerous occasions spelt out what occurs when the pumping of minewater ceases. That is not a theory; it has already happened on a small scale in various parts of the country, including County Durham, which I know well. If it were to happen on a large scale, the outcome hardly bears thinking about. On that point, I was extremely surprised by the statement made the Minister earlier this evening—he will correct me if my impression is wrong—that only 1.5 per cent, of mine workings would be affected if pumping were to cease.

I remember that vividly—I hope that I am not doing the noble Lord, Lord Crickhowell an injustice—because when that figure was mentioned, I remember him shaking his head. He is an expert on this subject. He knows the details. I suspect that that figure may be wrong, but perhaps the Minister will comment upon it when he replies. I am bound to say that, even if it is 1.5 per cent, the people affected by that 1.5 per cent, will know what it is all about. I believe that the Minister has seen some of the photographs and diagrams produced by Durham County Council, which have made a big impression on Members of the House who are interested in this issue.

The question therefore is: who is to be responsible under a privatised coal industry? The Government have given a commitment that the responsibilities for British Coal and the historical legacy of mining will be taken on by the new Coal Authority. It would be manifestly unfair if the Coal Authority were to shelter behind the exemption in favour of abandoned mines. Are the Government saying—they certainly seem to be implying—that the problem of minewater pollution has nothing to do with the mining of coal?

During the Committee stage of the Coal Industry Bill, the noble Lord, Lord Strathclyde, said:

I should like there to be no doubt that so far as water pollution or potential water pollution is concerned the Government will not be content for the authority to rest on the present effect of the exemptions".

The words "will not be content" appear to be pretty strong stuff and clearly mean that more will need to be done. Indeed, the noble Lord, Lord Strathclyde, went on to say that,

we will expect it go beyond the minimum standards of environmental responsibility which are set by its legal duties in these areas".

Those words make the position even more clear. But there may be a sting in the tail. His next words were, "and to seek the best environmental result which can be secured from the use of the resources available to it for those purposes".—[Official Report 26/4/94; col. 541.]

What if the Coal Authority states at some point that it does not have the resources to deal with minewater pollution? I feel sure that it will, and that may be a legitimate point to make. I confess that I am not entirely sure about the way in which the Coal Authority obtains all its money. What I do know is that the Government have obtained millions of pounds—£1 billion has been mentioned on a number of occasions—from the sale of the coal industry and, moreover, have millions more to come from the sale of British Coal Corporation land and other assets. What is to be done with all of that money? We would like to know. Perhaps tonight is an opportune time to be told. I remind your Lordships that in County Durham alone, where all the pits have been closed, pumping costs exceed £1 million per year.

At Question Time last week I said that it was disgraceful that the stocking of coal on the sites of abandoned mines should be permitted because for decades mining communities have had to put up with the dust, dirt and pollution caused by pit heaps. If minewater is allowed to pollute former mining areas that would be yet another addition to the degradation of those areas.

Coalfield communities can and do feel proud of the contribution they have made for many years to the national wealth. Accepting the proposed changes would be at least some recognition of that contribution. I wish to repeat for the sake of emphasis that the main issue, which was clearly spelt out by my noble friend on the Front Bench, is whether the Coal Authority will be responsible for this most important issue. We ought to know that, and tonight is the time for us to be told.

Lord Crickhowell

My Lords, I do not intend to repeat what was said earlier arising from my noble friend's misunderstanding of what I said about the relative impact of seepage from metalliferous mines and coal mines. I was making the point that the substances which emerge from metalliferous mines are often more dangerous than those from coal mines. However, that is not to suggest that coal mines cannot present serious problems to our water environment. It is a mistake to talk just in terms of percentages. If rivers or parts of rivers are wrecked by seepage from coal mines, that is a disaster for that particular area whatever percentage of the total river mileage is affected. Therefore, I hope that my noble friend will not pursue that point too far.

I wish to repeat the question which I asked earlier. Has the Minister had time to consider, since I raised the matter earlier, the question I posed about the legal position with regard to the dangerous substances and groundwater directives? We should have some guidance as to whether or not mines are exempted from those directives because if they are not, the Government in particular should be concerned about the possibility that we render ourselves liable to challenge if we fail to comply with the requirements of those directives.

The Earl of Onslow

My Lords, I became depressed at an earlier time when this was discussed because my noble friend on the Front Bench produced the excuse that this sort of behaviour had been going on since 1875. It seems rather odd to pray in aid Mr. Henry Davis Pochin's pleading to the then Conservative Government—or was it a Liberal Government?—or the special interests of the then Lord Londonderry that they had to be relieved of duties to keep the water clean. That is not a sufficiently good reason to produce in 1995.

The Earl of Kintore

My Lords, as the noble Lord, Lord Stanley, went down one group of amendments, and spoke to Amendment No. 169, with which my Amendment No. 249 is grouped, it may be for the convenience of the House if I speak now to that amendment.

The key Scottish points on abandoned mines are contained in Schedule 13. Amendment No. 249, which amends Schedule 13, provides that the persons responsible, under the Control of Pollution Act 1974, for causing or knowingly permitting mine water from entering controlled waters are the owners or occupiers of the mine in question and not the surface owner.

The definition "knowingly permitting", which is accepted by the courts, is wide and may well place liability on a farmer or other surface owner of ground where polluted mine water emerges from underground shafts on to the surface.

It is hoped that the Minister will confirm that surface Owners should not be held liable in that situation and that the appropriate persons to be held responsible are the owners and occupiers of the mine in question as provided for in the amendment.

On the subject of abandoned mines, it will be helpful if the Minister will clarify whether polluted water presently in a disused mineshaft may result in the land or mine falling within the definition of contaminated land under Clause 54.

The Earl of Lytton

My Lords, I support the amendments. There is one thing worse than contamination for spreading around its ill effects and that is risk. There is one thing worse than risk in general and that is unquantifiable serious risk and, following on from that, people's reaction and their total aversion to it.

I said earlier in connection with the Bill that it is no good looking for scapegoats and, in particular, for innocent scapegoats. As usual, the noble Lord, Lord Mason of Barnsley, spoke with enormous authority about coalfield dereliction and the problems associated with that. I know a little of the problems caused in some areas of the Nottinghamshire and Leicestershire coalfields, from where some of my forebears come.

I accept that mines have been closed and I make no particular point on that. But does the economic blight caused by those closures have to be added to by the blight of uncertainty relating to how liability for mine water is to be apportioned?

I said earlier that there are certain aspects of old residual contamination that rightly and properly fall into the public domain. I also said that it is no good for the Government and the Minister to ask, "Why should the taxpayer pay?" It is a matter of fine judgment as to what is appropriate for society to bear generally via the taxpayer —also known as the Treasury—and what it is proper for the individual to bear. One of the failings of the Bill as it stands is that it makes no proper distinction between the two. I support the amendments because the Government will now have to consider whether to leave things as they are or face the music of the human and social disarray and economic dereliction which will otherwise be visited on areas which already have problems enough at present.

Viscount Ullswater

My Lords, Clause 57 removes the statutory protections for discharges permitted to flow from mines abandoned after the end of 1999. Section 30J(4) of the Control of Pollution Act 1974 added by paragraph 2 of Schedule 13 and the amendments in paragraph 25(16) of Schedule 18 have the same effect in Scotland. In proposing those changes, the Government have been concerned to remove an anomaly which resulted in discharges from abandoned mines being dealt with differently from other discharges.

In the Bill we are seeking to enhance the agencies' abilities to deal with water pollution from abandoned mines, and to remove anomalies in the existing legislation. There is at present a defence against prosecution and an exemption from recovery of costs by the National Rivers Authority in cases where polluting water is permitted to flow from an abandoned mine. We consider it right that those statutory protections should be removed, but have, for the reasons which I gave earlier, decided that they should only be removed in the case of mines abandoned after the end of 1999.

The effect of Amendments Nos. 168 and 172 tabled in the name of the noble Baroness, Lady Hilton, would mean, for the Coal Authority alone, that the removal of the statutory protection applied to all coal mines regardless of when they were abandoned. That would simply create a new anomaly. Surely it cannot be right for one discharger, whether it be the Coal Authority or anyone else, to have far heavier responsibilities than any other.;

The same point applies in the case of Amendment No. 177 which places on the Coal Authority responsibility for the prevention, control and treatment of water pollution from abandoned coal mines. That responsibility would apply to mines abandoned before 1st January 1996. It is not clear whether the amendment envisages that the statutory protections for such mines would continue to apply. It would in any event appear to envisage that the Coal Authority is responsible for water pollution from any abandoned coal mine. Under the water resources legislation, an offence is committed where a person causes or knowingly permits water pollution to occur. If pollution from an abandoned coal mine occurred but the Coal Authority had neither caused nor knowingly permitted the discharge, it would clearly be wrong for the authority to bear the responsibility.

My noble friend the Chief Whip said, while he was a Minister with the DTI, that the Government would expect the Coal Authority to go beyond the minimum standards of environmental responsibility that are set by its legal duties, and to seek the best environmental result which can be secured from the use of the resources available to it. We consider that the Coal Authority should have the discretion to take action where circumstances demand, rather than be placed under such an indiscriminate duty as Amendment No. 177 would appear to envisage. There is clearly a need to have proper regard to use of public funds in addressing environmental problems of that kind.

While it is too soon to say what might emerge, the Coal Authority is currently consulting the regulators about concerns and priorities. I believe that that answers in part the questions posed by the noble Baroness, Lady Hilton, as regards the nature of the statutory duties and how the authority would go beyond its legal duties. I shall have to write to her on the question of the money it has, as I do not have the answer for her this evening.

I understand the concern expressed by the noble Lord, Lord Dormand of Easington, and by his noble friend Lord Mason of Barnsley in respect of a previous amendment, about the problems of the North East of England in particular, the closing of so many coal mines in Durham, and the consequent problems of the pumping of minewater from those abandoned mines. Perhaps the noble Lord misheard me. I indicated that the NRA' s recent report stated that 1.5 per cent. of river length in England and Wales is currently affected by minewater pollution. I did not refer to what would happen if pumping operations ceased in the future. I also indicated to my inoble friend Lord Crickhowell that I gather that, of that 1.5 per cent., only 0.5 per cent. of the river length in England is polluted by water from abandoned coal mines. I do not disagree with my noble friend that perhaps the 1 per cent. is more damaging than the 0.5 per cent.

It is right that my noble friend should draw attention to our European responsibilities. Earlier in the evening my noble friend raised the question of the provisions in the Bill concerned with abandoned mines and compliance with European Community legislation. My noble friend will be well aware that it is the Government's policy to comply with our European Community obligations in this area as in any other area.

The amendments tabled by my noble friend Lord Stanley of Alderley and the noble Earl, Lord Lytton, would maintain for landowners the defence against prosecution for pollution of controlled waters and the exemption from cost recovery by the agency where water is only permitted to flow from an abandoned mine unless they are the owner or operator of the mine. The amendment of the noble Earl, Lord Kintore, aims to achieve a similar effect as regards defence against prosecution in Scotland.

Under the provisions in the Bill, discharges from mines abandoned after the end of 1995 will be subject to the same rigorous controls as other discharges into controlled waters. That means that anyone causing or knowingly permitting such discharges will need to do so in compliance with a discharge consent. In addition, the provisions in Clauses 55 and 56 will place a requirement on mine operators to furnish the agencies with information regarding the consequences of abandonment for any future pollution of controlled waters. In those circumstances such abandoned mines will be well known to the regulator and it will be a matter of fact whether any landowner is either causing or knowingly permitting the discharge.

My noble friend Lord Stanley, in speaking to his amendments, drew attention to his concern at the possibility of innocent landowners being prosecuted for discharges from abandoned mines. An offence would be committed only if a person had caused or knowingly permitted the pollution of controlled waters. This is a strong test and there would be no liability for truly innocent landowners. To be liable a landowner would have to know about the discharge and it would have to be within his or her power to do something to prevent it. As I have already said, the provisions of Clauses 55 and 56 will greatly improve the agencies' knowledge of mines to be abandoned and enhance their ability to prevent pollution occurring in the first place. It is clear that in those circumstances the agencies would prefer to act against mine owners or operators in advance of pollution occurring wherever that was possible, since they are the people in the best position to do something about it.

The noble Lord, Lord Northbourne, and I believe the noble Earl, Lord Kintore, asked about the test of liability regarding "caused or knowingly permitted". The knowledge of an ability to prevent the pollution occurring is required to satisfy "knowingly permitted". That would be a difficult test to meet where there was pollution of an aquifer deep under ground. The owner of the surface land would be unlikely to know about it or be able to prevent such pollution.

The provisions in Clauses 55, 56 and 57 and Schedules 13 and 18 strike a balance between protecting the environment and creating a regime which is workable. They also remove a long-standing anomaly which is widely felt to be confusing and unnecessary. It would surely be wrong to remove that anomaly only to replace it with another, thus frustrating the Government's aim of putting all types of water pollution on the same footing.

Having said that, I ask the noble Baroness to withdraw the amendment.

Baroness Hilton of Eggardon

My Lords, I have listened with interest to what the Minister said. However, I do not think that he has fully answered the points made to him. The Government gave certain undertakings during the passage of the Coal Industry Bill last year which I do not believe have been fully fulfilled. I believe that there should be a statutory obligation on the Coal Authority to deal with minewater pollutions from abandoned mines. In the circumstances, I propose to test the opinion of the House.

10.36 p.m.

On Question, Whether the said amendment (No. 168) shall be agreed to?

Their Lordships divided: Contents, 20; Not-Contents, 56.

Division No. 2
Barber of Tewkesbury, L. Hilton of Eggardon, B.
Beaumont of Whitley, L. Kintore, E.
Carmichael of Kelvingrove, L. Lytton, E.
David, B. Moms of Castle Morris, L. [Teller.]
Dormand of Easington, L. Nicol, B.
Elis-Thomas, L. Northbourne, L.
Feversham, L. Onslow, E.
Freyberg, L. Palmer, L.
Graham of Edmonton, L. [Teller.] Walpole, L.
Hamwee, B. Williams of Elvel, L.
Addison, V. Long, V.
Astor, V. Lucas, L.
Blatch, B. Lyell, L.
Brain of Wheatley, L. Mackay of Ardbreeknish, L.
Brougham and Vaux, L. Mackay of Clashfem, L. [Lord Chancellor.]
Bumham, L. Marlesford, L.
Cavendish of Furness, L. McColl of Dulwich, L.
Chalker of Wallasey, B. Miller of Hendon, B.
Clinton, L. Norrie, L.
Courtown, E. Northesk, E.
Cranbome, V. [Lord Privy Seal.] Rankeillour, L.
Cumberlege, B. Rawlings, B.
Denton of Wakefield, B. Renton, L.
Dundonald, E. Rodger of Earlsferry, L.
Elton, L. Rodney, L.
Fraser of Carmyllie, L. Shaw of Northstead, L.
Gage, V. Shrewsbury, E.
Gisborough, L. Shuttleworth, L.
Glenarthur, L. Skelmersdale, L.
Goschen, V. Stewartby, L
Henley, L. Strathclyde, L. [Teller.]
HolmPatrick, L Thomas of Gwydir, L.
Howe, E. Trumpington, B.
Inglewood, L. [Teller.] Ullswater, V.
Kingsland, L. Vinson, L.
Knutsfonl, V. Willoughby de Broke, L.
Leigh, L. Wise, L.
Lindsay, E. Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

10.44 p.m.

Lord Stanley of Alderley moved Amendment No. 169:

Page 63, line 38, after ("apply") insert ("to the owner or operator of any mine").

The noble Lord said: My Lords, I was most unhappy about the last amendment and could not make up my mind, so I stayed in my seat. The question I must ask my noble friend yet again is this. As the downstream owner or occupier of land, I may know perfectly well that polluting water is coming on to my land from an abandoned mine. I knowingly permit it into the water course. Therefore, as I read the Bill, I am guilty. I am saying that that is incorrect in so far as it is not my fault. I am an innocent bystander, an innocent occupier, and I should he able to pass the responsibility back to the person who pollutes. The snag comes when I cannot find that person if he is dead or nobody owns the mine. What is the position so far as I am concerned? Am I protected as an innocent landowner? I have knowingly permitted that pollution to be in the water. I can see my noble friend Lord Crickhowell, in his former position, coming along to me and saying, "Stop that water going into the water course". As I see it, it is my liability, according to the Bill, to clear it up. I would be very pleased to hear my noble friend explain exactly what the position is. Unless he can say that I am innocent, I am most unhappy.

The Earl of Onslow

My Lords, it is extremely important to get this question of the interpretation of the word "cause" absolutely clear in our minds. There is the case (admittedly, it arose on another issue) of a company called CPC polluting a stream. There was no possible way that the company could have known about the pollution. It was completely innocent, and the NRA said that its behaviour was exemplary. However, the company was found, because of an interpretation of the word "cause", to have committed an offence. You can "cause" something in law, it appears now, completely and utterly innocently and unknowingly and you are still, according to the law, guilty of an offence. In spite of everything that my noble friend on the Front Bench said about "knowingly permit" implying that there has to be an element of negligence or knowledge, if the word "cause" is in the Act that "cause" allows no such defence. That is what the Appeal Court has found within the past five years. Can my noble friend confirm or deny that fact?

Viscount Ullswater

No, my Lords, of course I cannot deny that fact. But it is, I believe, a different point entirely from the one that troubles my noble friend Lord Stanley. My noble friend Lord Onslow is talking about "causing". I believe that my noble friend Lord Stanley is not so much interested in "causing" because I believe he understands that the pollution about which he is worried and which is appearing on his land he did not cause. The test, which I believe my noble friend accepted, is that if it is pollution of controlled waters, to be liable the landowner would have to know about the discharge and it would have to be within his or her power to do something to prevent it. If he were not in a position to prevent it, then he would not be liable. But if he was able to prevent it, and was asked by the agency to prevent it and failed to prevent it, then I dare say that he would be liable. But that is a different offence to causing it.

Lord Stanley of Alderley

My Lords, it is late at night. I shall not prolong this debate. I am still not happy. My noble friend says that I would not be guilty if I was in a position to prevent it. But what does that mean? Does it mean that I should have to go back to the mine and pump it out? I am not happy. Do I have to pump out every mine in the country because the pollution might be coming down to me? I might not be able to prevent it.

I shall leave the matter for the moment, but I may well come back to it—in fact, I am almost certain to come back to it—at Third Reading. I am most unhappy about it. I beg leave to withdraw the amendment,

Amendment, by leave, withdrawn.

[Amendment No. 170 not moved.]

[Amendment No. 171 had been withdrawn from the Marshalled List.]

[Amendments Nos. 172 to 174 not moved.]

[Amendment No. 175 had been withdrawn from the Marshalled List.]

Baroness Hilton of Eggardon moved Amendment No. 176:

After Clause 57, insert the following new clause:

("Survey of water pollution from abandoned mines . The Secretaries of State shall require the Agency and SEPA to carry out a national survey of potential and existing incidents of water pollution from abandoned mines which shall be publicly available and shall be updated annually.").

The noble Baroness said: My Lords, we have been talking about the serious problem of water pollution from abandoned mines. This amendment seeks to ensure that we identify the extent of water pollution from abandoned mines. To some extent so far we have been dependent on anecdotes, newspaper accounts and possibly, in some instances, scare stories. The amendment would provide that there should be a national survey of potential and existing incidents of water pollution from abandoned mines. It is an attempt to assess the extent of the problem. I beg to move.

Viscount Ullswater

My Lords, The amendment moved by the noble Baroness, Lady Hilton, would place a significant new duty on the agencies. It proposes that they should be required to carry out a national survey of both existing and potential incidents of water pollution from abandoned mines. The survey should be publicly available and should be updated annually.

The National Rivers Authority produced a useful report in March 1994 entitled Abandoned Mines and the Water Environment. In fact, we took account of the report in our review of the legislation governing water pollution for abandoned mines, which resulted in the abandoned mines provisions in the Bill. In seeking to estimate the scale of the problem of water pollution from abandoned mines, the NRA reported on those discharges from abandoned workings which cause significant pollution. However, it pointed out the problems which would be encountered in undertaking a survey of all existing and potential polluting discharges. Among these are the fact that the effects of discharges from abandoned mines are often most acute in streams and upper reaches which are not routinely monitored; the lack of records of long abandoned mines; and the complexity of underground workings, particularly where mines have been worked over several centuries, which makes it difficult to predict where an outflow of minewater may occur. There would therefore be considerable practical difficulties in producing a survey of the kind envisaged by the noble Baroness.

Apart from those practical considerations, it has always been our view that the water regulatory bodies should have discretion in the way in which they exercise their powers, and the same should apply for the agencies. It will be for the agencies to consider whether they wish to produce surveys of particular kinds of pollution, and we would not wish to impose statutory duties for activities of that kind. If they do carry out surveys of pollution, the agencies will consider whether the likely environmental benefits will justify the costs involved.

I appreciate that the noble Baroness's concern will be to reduce the incidence of water pollution from abandoned mines. That is the intention of the measures which we have included in the Bill. In particular, the new requirement for mine operators to give the agencies at least six months' notice of their intention to abandon a mine will allow steps to be taken to prevent future incidents of minewater pollution. With that explanation, I hope that the noble Baroness will see fit to withdraw her amendment.

Baroness Hilton of Eggardon

My Lords, I thank the Minister for his response. Clearly, it would place an onerous duty on the agencies. I understand that. But this was an attempt to assess the extent of the problem. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 177 not moved.]

Lord Crickhowell moved Amendment No. 178:

After Clause 57, insert the following new clause: ("Preventative and remedial action . After section 161 of the Water Resources Act 1991 there shall be inserted— "Preventative and remedial action. 161A.—(1) Without prejudice to section 161 above, where it appears to the Agency that any poisonous, noxious or polluting matter or any solid waste matter is likely to enter, or to be, or to have been, present in any controlled waters, then the Agency may, by notice, require the person on whom the notice is served to carry out the following works and operations, that is to say— (a) in a case where the matter appears likely to enter any controlled waters, works and operations for the purpose of preventing it from doing so; or (b) in a case where the matter appears to be, or to have been, present in any controlled waters, works and operations for the purpose— (i) of removing or disposing of the matter, (ii) of remedying or mitigating any pollution caused by its presence in the waters, or (iii) so far as it is reasonably practicable to do so, of restoring the waters, including any flora and fauna dependent on the aquatic environment of the waters, to their state immediately before the matter became present in the waters, and, in either case, the Agency shall be entitled to carry out investigations for the purpose of establishing the source of the matter and the identity of the person who has caused, or knowingly permitted, it to be present in controlled waters or at a place from which it was likely, in the opinion of the Agency, to enter controlled waters. (2) Subject to subsection (5) below, a notice under this section may he served on any person who, as the case may be— (a) caused or knowingly permitted the matter in question to be present at the place from which it was likely, in the opinion of the Agency, to enter any controlled waters; or (b) caused or knowingly permitted the matter in question to be present in any controlled waters. (3) A notice under this section shall— (a) state that the Agency is of the opinion that works and operations are needed; (b) specify the nature and location of the matter in question and its point of entry into controlled waters, or its likely point of entry; (c) specify the steps to be taken by way of works or operations to be undertaken; (d) specify the period within which those steps must be taken. (4) Any person who fails to comply with any requirement imposed by a notice under this section shall be guilty of an offence and liable— (a) on summary conviction, to a fine not exceeding £20,000 or to imprisonment for a term not exceeding three months or to both; or (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both. (5) A person on whom a notice is served may, within the period of twenty-one days beginning with the day on which the notice is served, appeal against the notice to the Secretary of State. (6) On any appeal under this section the Secretary of State may confirm the notice, with or without modification, or quash it. (7) Where the Secretary of State confirms a notice, with or without modification, he may extend the period specified in the notice for doing what the notice requires to be done. (8) Regulations may make provision with respect to— (a) the grounds on which appeals under this section may be made; or (b) the procedure on any such appeal. (9) Regulations under subsection (8) above may (among other things)— (a) include provisions comparable to those in section 290 of the Public Health Act 1936 (appeals against notices requiring the execution of works); (b) prescribe the cases in which a notice is, or is not, to be suspended until the appeal is decided, or until some other stage in the proceedings; (c) prescribe the cases in which the decision on an appeal may in some respects be less favourable to the appellant than the notice against which he is appealing; (d) make provisions as respects— (i) the particulars to be included in the notice of appeal; (ii) the persons on whom notice of appeal is to be served and the particulars, if any, which are to accompany the notice; and (iii) the abandonment of an appeal; and (e) make different provision for different cases or classes of case. (10) A notice under this section may not be served on a person requiring works and operations in respect of water from an abandoned mine which that person permitted to reach such a place as is mentioned in subsection (2) above or to enter any controlled waters unless the mine in question became an abandoned mine after 1st April 1996. (11) In this section "controlled waters" and "mine" have the same meaning as in section 161 above.".").

The noble Lord said: My Lords, I know that the House is anxious to jump the hurdle or hedgerow into national parks and I shall try to be as brief as I possibly can.

Amendment No. 178 and Amendments Nos. 280A and 282 cover related but rather different subjects. Amendment No. 178 would give the agency a new power to serve a notice requiring anti-pollution works to be carried out by a polluter or potential polluter of controlled waters. These works could include the removal of polluting matter, remedying or mitigating pollution or, so far as reasonably practical, restoration of waters to their state before the pollution occurred.

When a similar amendment was moved on 31st January, my noble friend said that he recognised that:

the underlying principle that the agency should be able to require polluters to take action to remedy water pollution and pay for that action merits further consideration".—[Official Report. 31/1/95; col. 1486.]

He criticised the amendment then before the House on the ground that it provided no right of appeal. This amendment has introduced a right of appeal. The appeal provisions are modelled on those in the Bill for contaminated land enforcement notices, which I hope will satisfy my noble friend's desire to achieve as much consistency between provisions in the Bill as possible. On 31st January the Minister asked my noble friend Lord Mills to withdraw the amendment while he undertook consideration of the problem. I press the matter again tonight to see what that consideration has produced and whether or not the Government have come to any conclusion upon it.

Amendment No. 280A raises an issue that 1 have raised before. Following the decision of the House of Lords last year in the Yorkshire Water Services case, we have been forced reluctantly to the conclusion that discharge consents issued by the NRA restrict or control only the discharge of substances that are identified within the terms of the consent. The net effect is that the holder of a discharge consent will have a defence as regards pollution caused by the discharge of matter or substances which are not controlled or regulated by the consent purely because the consent exists. If that is really so, a discharge consent can in effect become a licence to pollute. I cannot believe that that is the intention of Parliament. The NRA and all its predecessor bodies have taken the view that a discharge consent is exclusive; in other words, anything that is not identified in a consent is not permitted to be discharged. Surely, that must have been the intention of Parliament when the legislation was introduced. I know that the Government are considering the problem, and I do not expect my noble friend to produce a solution tonight. But it is important that some indication be given of the way that the Government intend to act.

If legislative action is taken—which may be the neatest way—we have to ensure that it is not retrospective in effect. We must also ensure that it does not make dischargers responsible for that for which they cannot reasonably be held responsible. Section 87 of the Water Resources Act 1991 probably satisfactorily relieves sewerage undertakers of the responsibility for the wrongdoing of trade effluent dischargers. On the other hand, if the new agency is forced to proceed by way of amendment of all existing consents, I think it is perfectly fair to suggest that there ought to be prior consultation between the DoE, the agency (or the NRA if the matter comes up sooner) and such organisations as the Water Services Association, the CBI, the Chemical Industries Association and so on. I do not suggest that we rush in without proper consideration of the issues. If there is not to be a major void created in effective pollution control there must be either legislative action or large-scale amendment of existing consents.

That takes me to Amendment No.282. I confess that I do not expect my noble friend to accept it. I urge that, if the agency has to go down the route of amending its consents and that stimulates a rush of appeals against those amended consents, as it almost certainly will, those appeals should be dealt with expeditiously by the department. I suggest that there be a 12-month limit before the Secretary of State deals with the appeal. If the appeal is not determined in that period, it will fail. We must address the realities of the situation.

That brings me back to a point that I believe I made fairly forcefully at Second Reading. I said that this legislation created a partnership between the agency and government. If the department does not play its part effectively, the agency will be totally ineffective. If we have a situation where discharge consents are amended and appeals are not dealt with promptly, the agency will be rendered powerless.

I am prompted to make that observation because in the five years and more of the NRA's existence a very large number of appeals have been made against revised consent conditions and virtually none of them has been dealt with by the department. That has proved a major weakness. I really do fear that it could be a crippling weakness for the new agency. I hope that if my noble friend is not prepared to put in a 12 months' limit—I suspect that he will find all kinds of faults with my amendment—he will at least give a very clear undertaking that the Government recognise the seriousness of the problem that I have identified and will come along with, a solution and give undertakings that every attempt will be made to deal with the problem speedily and effectively. I beg to move.

11 p.m.

Viscount Ullswater

My Lords, Amendment No. 178 revisits a proposal made in Committee for the agency to be able to exercise a new power to serve a notice on a polluter or potential polluter of controlled waters requiring the performance of anti-pollution works. This amendment sets out in more detail the procedure envisaged, and I am grateful to my noble friend for the further work which has been undertaken.

We are giving very careful consideration to the proposal for the introduction of a pollution notice procedure. I appreciate that the NRA considers that such a power would be of considerable benefit in preventing pollution incidents and that such a power would have proved useful in respect of a number of recent cases. As I indicated in Committee, the proposal does raise some difficult issues and we need to complete our consideration of them. If we are able to develop a suitable proposal, I am sure that we would wish to discuss it with interested parties.

We considered an identical amendment to Amendment No. 280A during the Committee stage. I appreciate that my noble friend has a very strong interest in this matter which, as I have previously indicated, we are looking at carefully. The amendment would amend Section 88 of the Water Resources Act 1991, which provides certain statutory defences against a charge of pollution, so that any consent granted by the agency in respect of discharges to controlled waters is not to be taken as authorising the discharge of substances other than those specifically identified in the relevant consent. The intended effect would be to establish that a discharge under and in accordance with a consent should not attract a statutory defence against a charge of pollution as regards any substance in respect of which there is not specific provision in the consent. In short it would limit the scope of the current defence.

I know that there is a long history underlying this proposal and I appreciate that my noble friend Lord Crickhowell takes the view that enforcement actions by the National Rivers Authority have been constrained. However, as I explained to the House previously, we cannot accept the proposal which he has put forward.

As I mentioned in Committee, many of the perceived difficulties stem from the drafting of the consents that have been granted. My noble friend indicated that he agrees with that. Legislation is unlikely to be the right vehicle to try to solve the contentious but clearly technical matters affecting individual consents which vary greatly and have been granted over a long period of time by different regulatory authorities. Retrospective effects are of particular concern to the Government and also to my noble friend.

We are, however, looking at the effect of recent judgments on the law governing these matters. That is a prerequisite before considering whether corrective action is required or, if so, whether a legislative route would be either desirable or practicable. Changes in this area are of great importance, affecting a substantial number of dischargers, and potentially controversial. We therefore need to be quite sure of our ground before any action can be considered.

My noble friend recognised these issues to be extremely difficult and complex. I should also signal that, were the conclusion to be reached that action might be required, given the potentially major implications for those currently holding discharge consents and those applying for consents in future, we should want to hear from all the interested parties.

Amendment No. 282 would give the Secretary of State, or the inspector acting on his behalf, 12 months to decide an appeal against a discharge consent, otherwise it would be treated as refused.

The intention behind the proposal is to reduce the time taken by my department to reach decisions on appeals. It is the case that delays have occurred in the past in a number of discharge consent appeal cases which have involved complex policy issues. However, through discussion primarily with the National Rivers Authority and the water industry, these issues have largely been resolved. A general review by the NRA and the water industry of affected consents and related appeals is now well under way.

For the future, it is envisaged that numbers of new appeals in respect of decisions by the environment agency on discharge consent applications will be very substantially fewer and the timescale for resolving them significantly shorter, especially through the use of inspectors appointed by my department's planning inspectorate. I hope that in the light of this response my noble friend will feel able to withdraw his amendments.

Lord Crickhowell

My Lords, I am grateful to my noble friend for the assurances which he has given. A member of the department complained rather sadly that it was perhaps inconvenient that the House of Lords judgment did not come until December, which virtually coincided with the introduction of the legislation. These things tend to come at inconvenient moments. The reality is that a solution has to be found because, as my noble friend said, these consent wordings go back a very long time to predecessor bodies, which suggests that people have been working on certain assumptions about their meaning and indeed that they have been generally accepted because they have not been previously challenged in the courts.

Therefore, we have a problem and I believe that my noble friend recognises that. In the light of the clear assurances which he has given that serious consideration is being given to the best way to resolve the problem, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Norrie moved Amendment No, 178A:

Before Clause 58, insert the following new clause:

("Major development test . Any proposal for development within the National Parks which is likely to have significant effects on the environment shall not be permitted unless it can be demonstrated by rigorous public examination, prior to a decision on consent being made, to be necessary in the national interest and there are no practicable alternatives.").

The noble Lord said: My Lords, I take as my brief in bringing this new clause before the House the recommendations of the most thorough and highly respected National Parks Review Panel. Part III of the Bill represents a considerable step forward in the internal management and protection of the parks, but it still does nothing to protect them against the arguably far greater threats which they face from external pressures for development.

At Committee stage there was overwhelming support for the principle that that issue should be addressed. There was also strong support for the concept that because national parks are such precious assets they deserve special and different protection from such external development threats. It is for that reason, and with the Edwards Report ringing in my ears, that I bring forward this new amendment.

It will ensure that development proposals in national parks which have potentially significant environmental effects will not be permitted unless environmental criteria are satisfied. I hope that noble Lords will find that this much simplified amendment responds to the criticisms of the earlier amendment at Committee stage. I shall return to that point.

The national parks cannot be entirely insulated from major development pressures. However, I believe that their special status requires a statutory test to ensure that such development is allowed only in certain circumstances. It should be demonstrated through rigorous public examination that the development meets a national need and that there is no alternative means of achieving the desired objective. The need for such a test is strongly endorsed both by the Countryside Commission and Countryside Council for Wales.

The Government have already agreed in principle the need for such a test. That is demonstrated by the 1992 policy statement on national parks and by Planning Policy Guidance Note No. 7. However, the weakness of PPGs is that they constitute advice only and that they are but one material consideration among others. Also they do not cover all forms of development, the main categories being electricity, infrastructure and major road proposals. As I have mentioned, this new amendment has been drafted in response to criticism of an earlier amendment in Committee that "major development" would be difficult to define.

My amendment overcomes that problem because the test would apply to any proposal requiring an environmental assessment. Whether a development requires such an assessment is already established in legislation. The trigger is whether a development is likely to have "significant effects" on the environment. That term is well understood and has a precise legal meaning, being used in the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. Environmental assessment legislation applies to developments under the electricity and highways legislation, so, unlike PPGs, this test would apply to the necessary range of projects. The Government rightly regard national park designation as conferring a high status of protection as far as landscape and scenic beauty are concerned. I believe that we should take the advice of the Edwards Report that that cannot be achieved without a statutory test for assessing major development. I beg to move.

Lord Williams of Elvel

My Lords, the House will be aware that we supported the amendment moved by the noble Lord, Lord Norrie, in Committee —and we support this amendment. It is difficult to achieve a balance between policy planning guidance on the one hand and practice on the other. As we have discovered on many occasions, the major developments which may take place are not necessarily subjected to the rigorous examination that they need. The noble Lord mentioned developments under the Electricity Act. I should like to refer also, as I did in Committee, to developments under the Telecommunications Act whereby BT has rights to override the planning mechanisms.

In Committee the Minister said that his right honourable friend the President of the Board of Trade was aware of those matters. I very much hope that the Government feel that something needs to be built into this part of the Bill to ensure that those who are on the fringes of the planning process, if I may put it that way, can be brought fairly and squarely within the ambit of the Bill—although they abide by the legislation that is relevant to them.

There is a danger at present that, although environmental assessments may well be undertaken by those who are outside the normal planning procedures, the crucial questions are not asked. They include questions as to whether a certain development is necessary and whether there are alternatives to it. I noted that, in their 1992 policy statement on the national parks, the Government said that, when an environmental impact assessment is to be carried out, the national park authorities may reasonably expect a prospective developer to examine alternatives to his preferred option. I believe that the amendment would help to ensure that that happens in practice. I very much hope that the Government will give it a fair wind.

Lord Chorley

My Lords, I have added my name to the amendment and should like to make three points on it. First, I believe that it would bring transparency to the decision-making process. I should like to make it clear that what we are trying to do does not relate only to public inquiries. Whether a decision is being made by a national park authority, the Secretary of State or an inspector, and whether a proposal falls within the town and country planning system or the consent procedure operated by the President of the Board of Trade, the proposal should be subject, as the noble Lord, Lord Norrie, said, to rigorous examination of need and alternatives, and there should be an opportunity for public input into the decision-making process.

My second point is parenthetical. I had the impression in Committee that some noble Lords thought that major developments in national parks were usually subject to parliamentary scrutiny. The Okehampton bypass was cited. As I understand it, that proposal came before Parliament because the compulsory purchase of an open space was involved and therefore the parliamentary procedure under the Acquisition of Land Act 1981 applied. In fact, parliamentary scrutiny does not normally apply just because the land targeted for development may lie within a national park, nor, as I see it, does this introduce scrutiny by Parliament.

Thirdly, in Committee, as I understood it, the main thrust of what the Minister and other noble Lords said was that we have in place, through statute and the PPG system, clear planning procedures and criteria. National parks are planning authorities, and we have laid down in statute for structure plans and local plans, procedures and so forth. But PPG7, taken with these statutory procedures, is argued to be a better control mechanism—better because, implicitly, the guidance element is a more flexible tool than statute for detailed definition. In a sense, solutions can be "negotiated", in that appropriate solutions can be achieved on a case by case basis.

The system usually works well within its terms, but I accept that it only on the basis that the existing statutory backing—fine though it is for its purposes—is entirely different in kind from what is needed for national parks. I emphasise the point different in kind. That is what this amendment seeks to provide. Moreover—and the noble Lord, Lord Williams, raised this in Committee - PPGs can be changed; Secretaries of State change; Governments change. I do not think that the noble Lord, Lord Williams, received a satisfactory answer from the Minister on that point.

We need to set out the broad principles in the Bill—as this amendment seeks to do—and those principles should underpin the guidance procedure.

Lord Beaumont of Whitley

My Lords, I will speak very briefly at this hour of the night. We on these Benches feel that national parks should have the highest possible protection from the kind of development that we are talking about. The amendment includes a reservation about the national interest, because in an on-going parliamentary democracy you cannot have total, absolute protection. The Bill provides the most protection we can give and, that being so, we should give it.

Lord Elis-Thomas

My Lords, the Edwards Report lists the national development pressures on national parks as being mining, quarrying, major roads, electricity, water supply, sewage treatment, major tourism and military installations and defence training grounds. I could speak for hours on all of those aspects as they have affected the national parks in Wales, but I will not do so.

Lord Marlesford


Lord Elis-Thomas

If there is enthusiasm on the Government side to keep the debate going, I am sure that noble Lords on all sides would enjoy doing so.

The time has come—and this, surely, is the time—for national park legislation to state the priorities for sustainable development in national parks, and to relate them to this major development test. When arguing for sustainable development within national parks we are sustained by the support of the national concept in another sense. I use "national", obviously, in the ambivalent national Welsh and national English context.

With regard to national parks, the concept is about a clear designation of land for a particular environmental, social and amenity purpose. Therefore it follows that, having made that definition, there are certain other national interferences with that concept that should not be allowed to play. That is what the amendment is about. It is about stating quite clearly that within a particular designated area there is a test which limits developments to those which have a value that overrides the initial environmental, social and amenity value given to designated areas.

In fulfilling their national parks obligations in terms of existing legislation and sustainable development, the Government continue to repeat in This Common Inheritance and other papers the importance of national parks—we heard that in earlier debates—as areas where sustainable development can be tested. But it seems to me that what is sustainable in national parks is what relates to the local socio-economic and environmental structure. That structure is sustained by the further concept of the amendment that there should be no interference with that externally by major developments.

I could obviously cite power stations, nuclear power stations, reservoirs and road building—my noble friend Lord Chorley raised the issue of the A.5 in Committee—which are all examples of potential or existing interference with sustainable development within the national parks, which have been allowed by previous governments. Obviously, I do not hold the present Government responsible for that, but I ask them, at this stage of our legislation on national parks and environmental policy, to take seriously the whole issue that there should be no interference with sustainable development within national parks unless it is an overriding necessity.

It is self-evident that at this stage, or later in the Bill, the Government should return to the Edwards Committee's recommendation and legislate clearly to ensure that an underpinning of the planning basis for national parks is set out clearly in the Bill.

The Earl of Onslow

My Lords, my noble friend the Minister sent me a letter on this issue, from which I should like to quote. He wrote:

We have an objection of principle to putting planning policies in statute which we consider both unnecessary and undesirable. Putting selected planning policies on a statutory basis would consume a great deal of Parliamentary time to keep them up to date. We will continue to uphold the test for major development in National Parks set out in Planning Policy Guidance note 7".

If the Government resist the amendment, what they are saying —as I read the letter—is that they want to be able to change PPG7 easily. Those of us who are worried about a major development in national parks do not want the Government to be able to change PPG7 easily. As I understand it, what my noble friend said in the letter was that he wants to be able to change something easily. In this case he should not be allowed to do so.

The Earl of Lytton

My Lords, at the risk of delaying the House further, perhaps I may make just a few points on the amendment. First, I have always held the view that planning schemes should be dealt with on their merits—that includes their demerits —and I hesitate before accepting that there should be a blanket provision in the Bill.

My first impression was that the amendment was very widely drawn, but the noble Lord, Lord Norrie, pointed out the formula which he said was well tried and tested. I take it that he meant the formula of words, "likely to have significant effects on the environment". The noble Lord nods in affirmation, so I take it that I have it right.

I did not know that that form of wording was statutorily defined. I should like to ask the Minister whether he is satisfied that that is the case and whether the wording suits the particular purposes of national park authorities. The noble Lord, Lord Norrie, referred to environmental assessments. As I understand it, in the little blue book which I have there are two categories where environmental assessment, in one case for major petro chemical installations and that type of thing is mandatory, and another where it is more discretionary. I am not clear about whether the noble Lord, Lord Norrie, intends that his new clause shall apply to everything in both categories or only one.

I was even more confused when the noble Lord, Lord Elis-Thomas, fluidly rolled off a list of items from the Edwards Report. It covered items which might or might not fall within the environmental assessment category. I am a little bemused but believe that there are grounds on which there should be a presumption against certain types of intrusive and disruptive developments in national parks. I do not believe that anyone disputes that but I am a little anxious about the wording as it stands.

Lord Marlesford

My Lords, I believe that the wording is not good. We know what is meant and are sympathetic to what Edwards had in mind. However, the phrase "significant effects on the environment" is better than "major development". It is interesting that the latter phrase has been omitted.

We are talking about what is not only a development but also an activity and therefore I should have preferred the phrase "development or activity". Furthermore, rather than the phrase "significant effect on the environment", it would have been better to have thought in terms of "any significant effect on the character of the park". Finally, the phrase "rigorous public examination", certainly in the context of the history of the House of Lords, almost implies the use of the rack and therefore I do not believe that the use of the word "rigorous" is ideal.

Viscount Ullswater

My Lords, when in Committee we considered the amendment tabled by my noble friend Lord Norrie, I made it very clear that we had an objection in principle to putting planning policies in statute because we considered that to be both unnecessary and undesirable. I am glad that I managed to repeat the same words that I put in a letter to my noble friend Lord Onslow. There is some method of consistency somewhere.

I also made clear in Committee, however, and shall repeat again tonight, that the test for major development in the national parks is set out in Planning Policy Guidance Note 7. That states unequivocally that major developments should not take place in national parks save in exceptional circumstances. Because of the serious impact that major developments may have on the natural beauty of the parks, applications must be subject to the most rigorous examination, including a demonstration that they are in the public interest. All major development proposals in the national parks must be examined against this test.

The noble Lord, Lord Williams, asked whether such considerations should include those assessments. I wish to draw his attention to the considerations that are quoted in PPG7. It states:

Consideration of such applications should therefore normally include an assessment of: (1) the need for the development in terms of national considerations and the impact of permitting it or refusing it upon the local economy".

That is a point which the noble Lord, Lord Elis-Thomas, also considered. It then says:

(2) the cost of and the scope for developing elsewhere outside the area or meeting the need for it in some other way; (3) any detrimental effect on the environment and the landscape and the extent to which that should be moderated".

The document continues:

Any construction or restoration should be carried out to high environmental standards".

The Government's planning policies, as set out in planning policy guidance, are material considerations which the town and country planning Acts require local planning authorities to take into account both in preparing their development plans and in deciding individual planning applications. The Secretary of State is bound by the same requirement and shall have regard to the same policies on matters which come before him on appeal or where he may have called in applications for his own determination.

A number of noble Lords expressed concern that perhaps other statutory undertakers would not be bound by the same kind of test. I confirm that the test also applies to those major developments which are controlled under other legislation. Those responsible for that legislation, as, for example, those bodies responsible for consents associated with the provision of statutory services, are well aware of the test for major development in national parks set out in PPG7 and the need to take government policy on these matters fully into account when considering major proposals.

I do not accept that policies for major developments in national parks are unique and therefore justify this exceptional treatment in statute. National parks are extremely important areas of the countryside and fully deserve the protection that our policies already provide for them. However, I know that there are others—for example, with a close interest in he future of green belts—who could claim the same treatment.

That would introduce a degree of inflexibility which I believe to be unreasonable. An enormous amount of effort and parliamentary time would be absorbed by the need to keep such tests up to date.

My noble friend Lord Onslow indicated that he wanted to make certain that the amendment should be accepted and that that would override PPG7. I cannot accept that. Planning decisions always involve judgments. Putting a planning test into statute will not make it any more or less likely that some people will disagree with particular decisions. I believe the present system works well and is underpinned by strong and effective legislation.

I do not believe that my noble friend's amendment raises substantial new issues, and I have not heard anything this evening which persuades me that we should review the principle that it is not appropriate for this and other planning policies to be put in statute. I therefore ask him to withdraw this amendment.

11.30 p.m.

Lord Norrie

My Lords, I am grateful for the Minister's reply. At this late hour, I shall not pursue the matter. I shall look very carefully at Hansard to see whether we can come hack on Third Reading with something about which we agree. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 [Purposes of National Parks]:

The Earl of Lytton moved Amendment No. 178B:

Page 64, line 26, leave out ("the next following subsection") and insert ("subsection (2) of this section").

The noble Earl said: My Lords, in moving Amendment No. 178B, I should like to speak also to Amendment No. 178C and 178D in the name of the noble Lord, Lord Barber.

The purpose of this group of amendments is to explore further the amendment which was moved and agreed to in Committee to revise the second national park purpose. I thank the Minister and his officials for the help which they gave in relation to the wording of the amendment. I also declare an interest as a farmer in a national park.

In Committee, the noble Lord, Lord Norrie, gave an extremely comprehensive explanation as to what he meant, and in particular what he did not mean, by the term "quiet enjoyment". My amendment is intended to reinforce that explanation and to ensure that it is defined clearly on the face of the Bill.

The noble Lord referred in particular to his amendment being concerned with the type of recreations which national parks were to have a statutory purpose to promote. My amendment is nothing to do with banning any recreational purpose but is everything to do with the purpose of promoting. I should like to make that very clear.

The purpose of the amendment is to define "quiet enjoyment". It defines it as:

enjoyment in ways which are not likely to disturb the tranquillity, or otherwise detract from the special qualities, of the areas in question".

That is what national parks will have a purpose to promote. That is the first part of the amendment and I hope that we can all agree that that is the intention underlying the amendment that was agreed to in Committee and that my interpretation is correct.

In Committee, we heard a great deal about noisy activities and the effect that they have on the enjoyment of the parks by others. A view is held in some quarters that such activities should be banned. As I understand it, in Committee, the noble Lord, Lord Norrie, explained that he did not intend that any activities should he banned as a result of the introduction of the term "quiet" in the second national park purpose. Therefore, my second amendment sets out to ensure that that intention is made explicit on the face of the Bill. It makes clear that,

no person shall be under a duly to prevent"—

and I stress the last three words—

reduce or restrict noise in [national parks] by reason only of the reference…[to promote] opportunities for the quiet enjoyment of those areas".

There may well be other reasons why noise should be prevented or reduced and I believe that there are other means to control noisy activities, but concentrating on the particular point at issue, the purpose of my second amendment is to make it clear that the word "quiet" in the Bill would not in itself be a reason to prevent such activities from taking place.

More particularly, I would go further and say that it is certainly not my intention that the existing powers to prevent noisy or damaging activities should be circumscribed —far from it. The whole idea is that the amendment should leave them intact. I believe that that was the noble Lord's intention in Committee. The amendment is intended to probe whether that is in fact the case. My intention is to clarify the term "quiet enjoyment"

The wording of the amendment, into which a good deal of careful thought has been put by others, may not be perfect. I would be the first person to recognise the fact that reconciling the different views of what is actually meant by the word "quiet", and from whose standpoint, is a vexed and difficult area.

I turn now to the amendment tabled in the name of the noble Lord, Lord Barber. On my yardstick, if I may put it that way, I believe that his amendment takes matters quantifiably further than the comments of the noble Lord, Lord Norrie, by introducing the concept of "lasting" damage and conflict with enjoyment by the public, in addition to the concept of acoustic disamenity. In my opinion, that highlights the dangers of leaving the term "quiet enjoyment" undefined on the face the Bill. I believe that that is something of a slippery slope due to poor definition.

The concept that I should like to flag here is that of multi-use recreational facilities in national parks as an integrated entity with existing land use activities. National parks are not wilderness areas, although parts of them may be—and, in that respect, some more than others. Nor are they mere tourist fleshpots, though that certainly applies in some limited areas. In many cases, they have to cope with extremely large visitor numbers at times and I feel that that poses the greatest challenge of all. However, in the past, the parks have catered for a broad spectrum of activity. I believe that that should continue and that no single interest should be unnecessarily pre-emptive of others. I beg to move.

Lord Williams of Elvel

My Lords, I was not sure whether the noble Lord, Lord Marlesford, wished to intervene at this point, but perhaps I may make our views of the amendment as clear as I can. I recognise that there is some need for a definition of the term "quiet enjoyment". However, after the noble Earl's introduction, I am unclear whether the amendment is a government effort—he seemed to imply that it was drafted by officials in the Department of the Environment—or whether it is an individual, solo performance by the noble Earl. Nevertheless, I am sure that the Minister will clarify the position in his response. I see that the noble Earl wishes to intervene. I give way.

The Earl of Lytton

My Lords, I am much obliged. I expressed my concerns in the past about the lack of definition of the words "quiet enjoyment" and, indeed, did so in a letter to the Minister. I must admit that the formula of words in the amendment is not mine; it comes from the department. The purpose of the amendment is purely to open the way for debate on this matter and to try to achieve a better definition. As it is a probing amendment, it is not one that has any consequence for us this evening.

Lord Williams of Elvel

My Lords, I am not quite sure where that gets us. Perhaps it gets us one step further.

I find the first half of the noble Earl's amendment perfectly acceptable but I have some difficulty in understanding the second half. Its language seems rather tortuous. Clearly, it would be very difficult for a national park authority, which is after all a planning authority, to make a distinction when called on to make a planning decision as to whether it was accepting or refusing the application by reference only to quiet enjoyment or for other reasons. That requires a sudden change of hats which would be difficult to put into practice.

I am therefore more attracted to the amendment which I hope will be spoken to by the noble Lord, Lord Marlesford. If some conjunction between the two could be achieved by the Government, they would do the whole House and the Bill a service. I believe that some definition is needed. I am not sure that the noble Earl, Lord Lytton, has got it absolutely right. However, I believe that the Government have an opportunity to include a provision which makes sense and improves the Bill.

Lord Elis-Thomas

My Lords, far be it from me to speak for draftsmen in the Department of the Environment or the Welsh Office, or for my noble friend, but the amendment has a certain attraction. It sets out at greater length the general principle of quiet enjoyment. It attempts to define it, but then does not relate it to specific activities. That seems to be the intention of the amendment.

We are on a positive track. Earlier in the debate some of us may have sidetracked the House by referring to specific examples of noise or activity which disrupted the "quiet enjoyment" of parks. That may have prevented the Government from seeing the validity of utilising this definition. If we can reach a definition of quiet enjoyment as a general principle in terms of park objectives which does not predetermine decisions in respect of specific activities that might seem to conflict with that principle, we shall have achieved something. For those reasons, on balance I am attracted by the amendment.

Lord Chorley

My Lords, we have two entirely different amendments on the same point. I hope that we can treat them both as probing amendments. The noble Earl, Lord Lytton, said that his was a probing amendment. I hope that we can treat them both as such, because I believe that we need to explore the question more thoroughly.

On reflection, I have been wondering since the Committee stage whether we need to define quiet enjoyment in the Bill. Reference was made at Second Reading to similar phrases in landlord and tenant law. So far as I am aware, quiet enjoyment in that sense has never been defined by statute but in the courts we nevertheless seem to get along quite well.

As regards Amendment No. 178C, I too find it acceptable up to the semicolon. Then I run into difficulty with the second part. I listened very carefully to what the noble Earl said about the second part of the amendment, but I read it as having the opposite effect to that intended. The amendment states that:

no person shall be under a duty to prevent, reduce or restrict noise".

It seems to me that, whatever level of noise emerged over time, the authority would have no power to reduce or restrict it. I hope that that is wrong. Since we have learned that the provision was drafted at the DoE, perhaps the noble Viscount will tell me whether I have it right or wrong. It is rather crucial.

Amendment No. 178D seems reasonably satisfactory, although I should like some reference to the words "intrusive activities"—a phrase used by the Edwards Review Panel. I believe that the key lies in the word "intrusive" in relation to special qualities of a park rather than concentrating narrowly on noise. If we need a statutory definition, do we need to spell it out in detail? Would we not do better to arrange perhaps for some guidance note, although clearly not the kind of guidance used in the 31st January draft circular?

It seems to me that the problem is getting the right balance. I thought that the Edwards Review Panel got it about right. The Edwards Report states:

We recognise the intrusion caused by several noisy sports…While we do not support their total prohibition in national parks, they should only take place on those rare sites where they do not cause undue annoyance to other park users or damage to the fabric of the parks themselves. In most cases, there may be more appropriate sites outside the parks, and recreational provision of this kind should be determined on a regional scale".

That is the essence of the Edwards Report. Perhaps that could be the basis of guidance.

11.45 p.m.

Lord Barber of Tewkesbury

My Lords, I had not realised that we had got as far as the amendment in my name. My noble friend Lord Lytton has, happily, helpfully said nearly everything that I was going to say. My main aim in moving the amendment is to seek to bring a sense of purpose and urgency in finding a definition that will fit.

I do not wish to repeat much that has been said, but I wish to make this background point. I refer to the sense of relief that we all had when the amendment in the name of the noble Lord, Lord Norrie, was carried. It dealt with the question of "quiet enjoyment". All of us who work with the parks in one way or another realise how vulnerable and fragile these marvellous places are. However well we try to protect them, any close personal association with them brings a sense of unease because their integrity will be extremely difficult to maintain; such is the strength and variety of the inevitable pressures which beset them. Here, in this successfully amended clause, was some provision to help.

Perhaps I may make clear a few points, even if they have been made before. It was made clear in the debate on Second Reading that the purpose of "quiet enjoyment" does not preclude a wide range of other activities taking place. It does not preclude noisy sporting undertakings. Planning controls, traffic regulation orders and by-laws are mechanisms available for quelling noisy sports. It does not affect field sports, as some people have mistakenly suggested. The sweet cry of hounds and the sound of 12 bores remain unaffected. It means primarily that the parks do not have the statutory purpose of promoting the whole recreational range.

However, it was also made clear at the Committee stage that much difficulty lay in defining the term of "quiet enjoyment". I do not believe that we have got much further forward at this stage, beyond suggesting that Amendment No. 178D is slightly less obscure than the amendment in the name of my noble friend Lord Lytton. I still cannot understand the latter part of his amendment.

I have no intention of wandering idly into legal fields which are terra incognita to me and out of bounds. But I am advised by one legal source that a statutory definition of "quiet enjoyment" in the context of national parks is not essential because the expression does not have an existing statutory definition elsewhere. An accepted understanding of its meaning in landlord and tenant affairs, for example, has evolved through case law. But clearly there is a need to explore further as to legal and non-legal definitions that are proper and practical in application.

The amendment, which is supported by many bodies—not least the Countryside Commission and the Countryside Council for Wales—has been stitched together with some care as a step down the road to a clearer view. I offer it for consideration, although I have no doubt that some refashioning and re-honing may well be desirable. I repeat that I feel anxious—and I think I speak on behalf of large numbers of people—that we must have a sense of purpose and urgency in eventually establishing precisely what the definition should be. In that spirit, I commend Amendment No. 178D.

Lord Marlesford

My Lords, I believe we all agree that it is important to get this amendment right in one form or another. Inserting the words "quiet enjoyment" was useful in reinforcing the Bill in carrying out one of the essential themes of Edwards. We had difficulty in Committee, possibly caused by the noble and learned Lord, Lord Ackner. I am not a lawyer, like some who have spoken, but I had the impression that somehow he felt that the words "quiet enjoyment" had a well-established common law meaning which may not be appropriate in a statute. Unfortunately, he is not here to help us further tonight.

Setting that aside, assuming that for that reason or others, we need a definition, I prefer the one put down by the noble Lord, Lord Barber and myself, except for the frightful word "quietude", which I cut out. Perhaps I may put the word of the noble Earl, Lord Lytton, "tranquillity" in place of "quietude" and then we would have a useful definition. We need quiet enjoyment in the Bill as a concept; it must be in the statute. Secondly, if it needs to be defined, let it be defined and let us at least say that it is a starting point. My impression is that the Government are well seized of the desirability of what we have been talking about and will help us, if not tonight, at some later stage.

Lord Norrie

My Lords, I wish to add my strong support for Amendment No. 178D in the names of the noble Lord, Lord Barber, and my noble friend Lord Marlesford. In addition, I am interested in Amendment No. 178C in the name of the noble Earl, Lord Lytton. I have had less opportunity to study it, but I understand it to be probing. It is a constructive contribution.

As noble Lords will know, I brought forward an amendment in Committee to make it clear that national parks should promote quiet enjoyment. I was worried that as it stood the Bill required the parks to promote all kinds of enjoyment, even noisy and intrusive activities. Noble Lords agreed that the Bill should be amended in that way.

There was also agreement during the Committee stage that it would be helpful to define "quiet enjoyment" in the context of the national parks. I am advised that, as the noble Lord, Lord Barber, said, such a definition need not be on the face of the Bill. However, I hope that we can agree that a definition in some form of the quiet enjoyment of national parks as used since 1945 will greatly assist those responsible for implementing the legislation.

When I moved my amendment in Committee, I used as my point of reference the description of "quiet enjoyment" in the Dower report of 1945 which laid the foundations of our national parks. It is significant that the Dower definition provided the basis for the Countryside Commission's proposed definition. That demonstrates that we are not talking about a new concept. There has been great consistency in what kind of recreation is intended for promotion in the parks. The only difference is that in 1949 no one thought it necessary to qualify in the statute the type of enjoyment intended. The escalation of modem, noisy and incongruous pursuits was understandably not foreseen. It is important that any definition should capture the three elements of the Dower description. They were that any recreational activity should be considered in terms of its impact on, first, the natural qualities of the parks; secondly, the quietude of the area; and, thirdly, people's enjoyment. Amendment No. 178D captures those three dimensions. Amendment No. I78C captures the first two dimensions most elegantly, but not the third.

The noble Earl, Lord Lytton, asked me to return to the distinction between "promoting" and "banning". As I said in Committee, the promotion of quiet enjoyment is not equivalent to banning other activities. There are mechanisms already in place, such as planning controls, by-laws and traffic regulation orders, for controlling noisy or intrusive activities on a case by case basis. I also wish to repeat the statement that I made in Committee that I do not wish to see the promotion of quiet enjoyment used as a basis for banning field sports.

I strongly endorse the Countryside Commission's advice, published for Report stage, that national park authorities should take a positive approach to recreation in the parks. They should make extensive use of positive management methods so that, wherever possible, multi-purpose use can take place without causing damage to the essential quality of the parks.

I also note the Government's position as described in the 1992 policy statement on national parks. Not only did this state that park purposes shall refer expressly to "quiet enjoyment"; it also provided a detailed strategy. I shall quote the relevant paragraph to the House, because I consider it to be most pertinent:

The Government believes that cooperation is the best means of encouraging sensitive use of the National Parks. Nonetheless, it is clear that those experiences which are unique to the Parks—and which are largely related to the quiet enjoyment of these areas—should be protected and fostered. New recreational uses which threaten those qualities are inappropriate. The question of existing activities, some of which support long established businesses, has to be examined on an individual basis".

I believe that this existing policy provides a very sensible way forward. I further suggest that Amendment No. 178D is consistent with the Government's policy that I have just described.

I welcome clarification on Amendment No. 178C. I ask the following questions. What would the impact be on existing controls over noisy or intrusive activities? Would the amendment mean that action could be taken only if an activity affected the landscape of the park and never on the basis of excessive, troublesome noise? What effect would the amendment have on the use of by-law procedures where issues of noise are currently decided on a case by case basis? I shall be interested to hear what the Minister has to say in response.

I hope that the two amendments before us tonight will provide a very good basis for discussions with the Government. There is much common ground. I hope that it will perhaps be possible at Third Reading for the Government to bring back a definition of their own upon which we can all agree.

Lord Northbourne

My Lords, I welcome the two amendments. It is so very necessary in a crowded island such as ours to have places where we can escape from the tyranny of the noisy internal combustion engine. I suspect that the national parks are one of the places where this should be made possible. I support the amendment.

Lord Annaly

My Lords, I shall be very brief at this time of night. I opposed the amendment on "quiet enjoyment" when it was passed. The noble and learned Lord, Lord Ackner, made a very powerful speech. No one tonight has answered the points that he raised. "Quiet enjoyment" is totally subjective. I fully respect all noble Lords who have made the point tonight that it will not affect field sports and this, that and the other. But at the end of the day the national park authorities will interpret the legislation when it is passed. I have no confidence that they will necessarily interpret it the same way.

Therefore, short of doing what the noble and learned Lord, Lord Ackner, said in Committee—that is, making a list of activities, whatever they may be, that are not allowed as they do not pass the "quiet enjoyment" test—I am not happy. I cannot support these amendments.


Viscount Ullswater

My Lords, we have had a further interesting discussion about the meaning of the second national park purpose, as amended in Committee. The fact that nine noble Lords have spoken about this matter indicates the level of their concern about how "quiet enjoyment" describes that purpose.

The amendments of the noble Earl, Lord Lytton, the noble Lord, Lord Barber of Tewkesbury, and my noble friend Lord Marlesford, defining the term "quiet enjoyment" have, I believe, helped to expose the very important issues which surround the use of the term. The amendment proposed by the noble Earl, Lord Lytton, represents what I believe many noble Lords said in Committee, explaining the intention underlying my noble friend Lord Norrie's amendment. Indeed, the noble Earl sought my assistance on the amendment, as he described.

There is clearly some concern among your Lordships about how the term might be interpreted. However, our debate has produced some measure of agreement about the meaning of "quiet enjoyment". The majority view seems to be that it means enjoyment by the public in ways which are not likely to disturb the tranquillity of the parks or otherwise detract from their special qualities.

There seems to be less agreement about what "quiet enjoyment" excludes. I feel that it was useful that my noble friend Lord Annaly drew attention to his concern on that matter. On the one hand, there are those who think that the revised second national park purpose provides a justification for banning some noisy activities, such as motor-bikes and four-wheel drive vehicles driven across open countryside. In Committee the noble Lord, Lord Elis-Thomas, would perhaps have liked to get rid of low-Flying aircraft. On the other hand, there is a view, as my noble friend Lord Norrie explained in Committee, and as the amendment of the noble Earl, Lord Lytton, makes clear, that the parks should be areas where quiet activities are to be promoted but noisy activities are not to be prevented from taking place by reason of the introduction of the term "quiet enjoyment".

In addition, the noble Lord, Lord Barber, expressed his view that "quiet enjoyment" goes beyond the concept of tranquillity and quietude to embrace the physical condition of the parks so that activities that may cause lasting or serious damage to their fabric should be brought within the scope of the term. That is an interesting point of view.

I have listened with great interest to what has been said this evening. I believe that we need to study very carefully the points that have been made. I expect that there will be a further opportunity for this matter to be considered in another place. In the meantime, I ask the noble Earl, Lord Lytton, to withdraw his amendment.

The Earl of Lytton

My Lords, clearly, I do not want to prolong the debate. I thank the Minister for that very helpful reply. I also thank other noble Lords who have spoken to the amendments. I am sorry if the second part of the amendment was so baffling to a number of noble Lords. Perhaps I should reinforce what I thought I had said earlier; namely, that it endeavours to make sure that there will not be a consequential duty to prevent along with the purpose to promote. That was a point mentioned by the noble and learned Lord, Lord Ackner, in Committee. He was concerned that the one was the obverse side of the coin to the other. I am trying to separate the two.

By that separation, I wish to reassure noble Lords that the intention is to leave completely intact all the existing powers available to national park authorities. They would not be circumscribed by the amendment. I thought that the wording was reasonably clear and that it meant that there was no duty to prevent arising out of the particular purpose to promote, but all other duties and powers from wherever they are derived remain.

Obviously, I should like to answer a number of the points made by many noble Lords, but the hour is late and it would be wrong for me to prolong matters. I shall read carefully what has been said. I hope that perhaps with the Minister we can sit down with other interested noble Lords and try to find a better formula of words if mine is not acceptable. For the time being, while reserving my position, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 178C not moved.]

Lord Barber of Tewkesbury had given notice of his intention to move Amendment No. 178D:

Page 64, line 30, at end insert:

(" () In section 5 of the National Parks and Access to the Countryside Act 1949 (National Parks) after subsection (3) there shall be added— (4) For the purposes of this Part of this Act, the expression "quiet enjoyment" in subsection (1) above means recreation, active or passive, which does no lasting or serious damage to the natural beauty, wildlife or cultural heritage of a National Park, respects its quietude and does not diminish enjoyment of its special qualities by the public.".").

The noble Lord said: My Lords, I should like to echo what has been said by my noble friend. (That is something that I appear to have been doing for the past half hour.) I thank the Minister for his constructive reply. It is hoped that there is a general feeling that we should press on with this as a matter of urgency. I would hate to think that we would lose that quiet enjoyment as a result of getting into a legal tangle and finding it difficult to find a way through it. I shall not move the amendment.

[Amendment No. 178D not moved.]

The Earl of Lindsay

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at five minutes past midnight.