§ (" .—(1) Where
- (a) a disposal licence under section 5 of the 1974 Act became a site licence by virtue of section 77(2) of the 1990 Act (conversion, on the appointed day, of existing disposal licence under section 5 of the 1974 Act into a site licence),
- (b) the licence has expired at a time ("the time of expiry") falling before the day on which this Act is passed but not earlier than the appointed day,
- (c) the licence authorised the carrying on of activities in or on land in England or Wales, and
- (d) relevant activities have taken place at a time falling not more than one year before the day on which this Act is passed,
§ (2) Subsection (3) applies where—
- (a) a disposal licence under section 5 of the 1974 Act expired at a time ("the time of expiry") falling before the appointed day (so that it was not converted into a site licence by section 77(2) of the 1990 Act),
- (b) the licence authorised the carrying on of activities in or on land in England or Wales. And
- (c) relevant activities have taken place at a time failing not more than one year before the day on which this Act is passed.
§ (3) The licence shall (subject to subsection (7)) for all purposes be deemed—
- (a) not to have expired, and
- (b) to have been subsisting on the appointed day and (accordingly) to have become on that day a site licence by virtue of section 77(2) of the 1990 Act,
§ (4) Where—
- (a) a site licence in force immediately before the day on which this Act is passed—
- (i) became a site licence by virtue of section 77(2) of the 1990 Act, and
- (ii) will expire on or after the day on which this Act is passed (if it has not previously been revoked entirely, or had its surrender accepted, under Part II of the 1990 Act), and
- (b) relevant activities have taken place at a time falling not more than one year before that day,
§ (5) Where subsection (1), (3) or (4) has effect in relation to a licence, the terms and conditions of the licence as continued in force by that subsection shall, except so far as providing for the expiry of the licence and subject to subsection (6)(b) and (c), be such as were in force immediately before the relevant time (unless and until varied under Part II of the 1990 Act); and "the relevant time" means—
- (a) where subsection (1) or (3) has effect in relation to a licence, the time of expiry;
- (b) where subsection (4) has effect in relation to a licence, the beginning of the day on which this Act is passed.
§ (6) Where subsection (1) or (3) has effect in relation to a licence (but without prejudice to the generality of that subsection)—
- (a) activities carried out during the interim period which (by virtue of subsection (1) or (3)) become authorised by the licence shall be treated as authorised at the time they were carried out (even though at that time their being carried out amounted to a contravention of section 33(1)(a) or (b) of the 1990 Act or section 3(1) of the 1974 Act);
- (b) anything done in relation to the licence before the time of expiry but purporting to take effect after that time (such as the serving of a notice under section 37(4) or 38(12) of the 1990 Act, or in pursuance of section 7 of the 1974 Act, specifying a time falling during or after the interim period) shall be treated as having had (or having) effect as if the licence had not in fact expired;
- (c) anything which during the interim period purported to be done in relation to the licence (such as a modification of the licence or the revocation, suspension, transfer or acceptance of the surrender of the licence or the carrying out of consultation, exercise of functions under section 9 of the 1974 Act or section 42 of the 1990 Act, imposition of requirements during a suspension or bringing or determination of an appeal) shall be treated as having had effect as if the licence had then been in force:
- (d) any fees which (by virtue of subsection (1) or (3)) are treated as having become payable before the passing of this Act shall be taken to have become payable at the time they would have become payable had the licence not in fact expired; and
- (e) the holder of the licence shall be treated as having been, during the interim period, an authorised person for the purposes of section 34(1)(c) of the 1990 Act.
§ (7) Where subsection (1) or (3) has effect in relation to a licence, a person shall not be guilty of an offence under section 33(6) or 38(10) or (11) of the 1990 Act as a result of anything done or omitted to be done during the interim period becoming (by virtue of subsection (1) or (3)) a contravention of any condition of the licence or (as the case may be) a failure to comply with any requirement imposed under section 38(9) of the 1990 Act.
§ (8) Nothing in this section affects any criminal proceedings which have been concluded before the passing of this Act.
§ (9) The waste regulation authority (within the meaning given by section 30(1) of the 1990 Act) shall notify the holder of a licence affected by this section of the fact that the licence is so affected and of how it is so affected.
§ (10) For the purposes of this section "relevant activities", in relation to a licence, are—
- (a) any activities authorised by the licence or, in the case of an expired licence, any which would have been authorised by it had it not expired, and
- (b) any precautions or works required by the licence to be taken or carried out in connection with or in consequence of those activities or, in the case of an expired licence, any which would have been so required had the licence not expired.
§ (11) In this section—
- "the 1974 Act" means the Control of Pollution Act 1974;
- "the 1990 Act" means the Environmental Protection Act 1990;
- "the appointed day", in relation to a licence, means the day which in relation to that licence is (or would have been if the licence had not previously expired) the relevant appointed day for licences (within the meaning of section 77 of the 1990 Act);
- "the interim period", in connection with a licence in relation to which subsection (1) or (3) has effect, means the period beginning with the time of expiry and ending immediately before the day on which this Act is passed;
- "site licence" has the same meaning as it has in Part II of the 1990 Act by virtue of section 35(12) of that Act.").
§ Lord Whitty
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2 and, with the leave of the House, I shall speak also to Amendments Nos. 15, 16 and 17.
Amendment No. 2 creates another clause to deal with a problem that has come to light—that a number of waste management licences carried forward from the Control of Pollution Act 1974 were time limited and in some cases the time limits have expired without either the licence holder or the environment agencies being aware of it. The amendments remove the threat of prosecution from businesses that have in good faith been disposing of waste in the belief that they held a valid waste management licence and those who in good faith asked them to dispose of their waste.
The amendments will provide protection for the holders of expired licences and for the environment by ensuring that the licence surrender provisions of the Environmental Protection Act 1990 apply to time-limited licences issued under the 1974 Act. It may be helpful if I explain the amendments and their effects.
One of the deficiencies of the waste licensing system originally introduced under the 1974 Act was that those who held licences for waste operations, such as landfill sites, could hand in their licences and walk away from their responsibilities. In line with the polluter pays principle, that deficiency was rectified in the revised licensing system introduced under Part II of the 1990 Act. That Act provides that a site licence remains in force until it is revoked or a surrender application is accepted by the environment agencies. It precludes the agencies from accepting surrender applications unless they are satisfied that environmental pollution or harm to human health is unlikely to occur.
Licences issued under the 1974 Act were subject to the transitional provision in Section 77 of the 1990 Act which did two things. One was to state that licences were to be treated as 1990 Act licences until they expired. The other was to state that they may be surrendered only in accordance with the 1990 Act. It is clearly anomalous to require a licence holder to apply to the environment agencies to surrender a site licence while the time limit remains in force but to allow the holder to walk away from his responsibilities when the time limit expires.
A review undertaken by the Environment Agency revealed that a number of 1974 Act licences were subject to time limits and in some cases the licences have expired without either the agency or the operator being aware of it. It is a criminal offence to operate sites without a licence. However, the sites continued to be operated by the licence holders and supervised by the agency as if they had valid licences.
The amendments serve two main purposes. First, they will validate what has happened since the expiry of licences that have already expired, including removing the threat of prosecution for site operators and those who transferred waste to them in good faith. Secondly, they will ensure that all licences—those that have expired and those that are subject to time limits and will expire in the future—are subject to the surrender provisions of the 1990 Act. That means removing the 1353 time limits in licences that have not yet expired. That will ensure that the environment and human health are properly protected in line with the polluter pays principle.
Those objectives could not be achieved if, on the basis of time limits originally set under the 1974 Act, the operators of landfill sites and toxic waste treatment plants could now walk away from their responsibilities. In the Government's view, it is essential to remove those time limits to ensure that the environment and human health are properly protected—while at the same time protecting the interests of those who may inadvertently have been operating without legislative backing.
We all regret the need for those provisions. The situation has only come to light since the Bill was drafted.
§ Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Whitty.)
§ 6.45 p.m.
My Lords, I will avoid commenting on the substance—tempting though it is; I have two relatively minor points to make on the drafting.
The side note refers to,Time-limited disposal or waste management licences".Surely the word "of' should be "or". Secondly, subsection (11) of the proposed new clause states that references to the 1974 Act mean the Control of Pollution Act 1974. There is a similar explanation in respect of the Environmental Protection Act 1990 and a definition of "the appointed day" and other phrases.
The Bill already has two definitions in Clause 5(2). Surely it would be more usual for all those definitions to be placed in one clause, instead of being separated, as they are by the new clause. I suppose it is too late to put the matter into a state of tidy order. I feel bound to point out that that is not the way we usually legislate.
§ Lord Dixon-Smith
My Lords, I thank the Minister for his letter explaining the amendments that the Commons are inviting us to consider. That was most helpful of him and I am grateful.
I understand that Commons Amendment No. 2 is necessary to legitimise something that has been going on completely illegitimately and that in certain instances we are validating what is factually a criminal offence. So be it. That is necessary.
I would welcome the Minister's assurance in respect of one matter of concern. When local authorities and county councils were waste regulatory authorities, they used two methods to control, regulate, direct and manage waste disposal. One was the site licence, which dealt with all the environmental matters and quality control. The other was planning permission. The planning permission was the primary control matter and, if you were going to operate a valid planning permission, you had to have a site licence. But, as a matter of practice, if you had a valid site licence and you applied for an extension of planning permission, then, provided the site licence was valid and other things 1354 could be managed properly and it would not cause too much difficulty, the licence could be called in aid of an application to extend a planning permission.
This is a situation which we now face and one which we may face for all time because, if I read the amendment correctly, whatever expiry date applies to the site licence—that is, whether or not it expires post the coming into force of the Act—it will be deemed, if you like, to continue. Perhaps the Minister will be able to reassure me.
There is another point upon which I require assurance. I shall give the Minister my reasons. Perhaps we may once again consider my own county, which disposes of huge quantities of London's waste. For many years it has had a policy of trying to diminish, if not absolutely eliminate, the importation of waste into the county. That is a completely understandable policy even if, in relation to London, one has to continue to accept some of its waste for practical reasons.
Many of the existing planning permissions in Essex which have run for many years are coming to the end of their days. I would welcome an assurance from the Minister that nothing in the amendments will endanger the achievement of that policy by my former county council. As I say, it may well be that Essex will have to continue to take some waste from London for practical reasons. However, it is not an unreasonable policy for a county in that situation to wish to diminish the practice. Moreover, it seems to me that it is not unreasonable that we in this House should ensure that nothing we do endangers the achievement of that gradual policy. I look forward to the Minister's response.
§ Lord Whitty
My Lords, perhaps I may first address the points raised by the noble Lord, Lord Renton. As regards the side note in the margin of the amendment, I am not sure that the noble Lord is syntactically correct. I can see that there is a certain ambiguity there, but it means that there are two types of licence: a time-limited waste management licence and a time-limited disposal licence. Therefore, the inclusion of the word "or" is correct. If you wanted totally to clarify the matter, you could insert the word "licence" again, but the word "or" is correct.
As to the noble Lord's other point, I should point out that the new clause does not change the definition; it effectively decrees that certain aspects of the 1990 Act will be held to apply to those inadvertently expired licences and potentially expired licences. It does not actually change the definition. Therefore, I do not think that it would be appropriate to include it within a definitional clause. In a sense, it is a different issue.
I turn now to the remarks of the noble Lord, Lord Dixon-Smith. I believe we all recognise that this is not the tidiest of situations. Nevertheless, once we have dealt with the unexpired licences, there is nothing in the change of status of those licences that would affect the ability under planning permission rules of Essex—it is funny how often we debate the concerns of Essex in this Chamber—to alter the use of a site, or whatever. Therefore, it does not directly affect the position.
1355 Regrettably, the amendments are necessary and will put the situation back into a sensible position. I hope, therefore, that the House will be able to accept them.
§ On Question, Motion agreed to.