CONTAMINATED LAND (Hansard, 24 November 1994)

§ Viscount Ullswater

The Department of the Environment and the Welsh Office have today published a paper,Framework for Contaminated Land, which sets out the Government's proposals for the machinery for dealing with contaminated land and with the question of liabilities and concludes the review into these subjects set up last year by my right honourable friends the then Secretaries of State for the Environment and for Wales.

The Government remain committed to the "suitable for use" approach to the control and treatment of existing contamination, relating any requirement for 21WA remedial work to the presence of any unacceptable risks to health or the environment and to the actual or intended use of the site. This was widely supported in the consultation responses. It provides the basis for tackling real hazards where they exist in an orderly and controlled fashion. By not imposing unnecessary financial and regulatory burdens, we will not discourage enterprise, which is itself a major contributor to the reinstatement of contaminated land.

We have already issued guidance about the treatment of contaminated land in the planning process, and shall continue to publish a series of research reports and guidance notes designed to help businesses and regulators determine when remediation is required and to what level, striking an appropriate balance between the costs and the environmental benefits of any action.

Subject to parliamentary approval, we propose that the environment agency should take over this programme of research and guidance, providing a nationally coherent framework for remedial action. It will also be asked to oversee progress.

We shall at the same time propose legislative amendments to the provisions whereby regulators (the environment agency and the borough and district councils, or unitary authorities) can require the prevention or abatement of contamination. We do not believe that there is a need for radical change to the effect of these provisions nor to the underlying incidence of financial liability. There is, however, a need for greater clarity and certainty, based on the principle that costs should as far as possible follow responsibility.

The overall aim will be for the regulatory authorities to work with private and public sector organisations to promote the treatment of contaminated land and, where possible, the productive reuse of such sites. English Partnerships and the Welsh Development Agency will continue to have important roles in tackling dereliction and the treatment of contaminated sites.

Homeowners and small firms may face particular difficulties both in assessing their potential liabilities for contamination and in meeting any liabilities which they might have acquired unwittingly. We are keen, therefore to see improvements in the effectiveness of the conveyancing process. Guidance published by the Department of the Environment and the proposed agency should also make it easier for people to both predict and address their problems. Regulatory authorities will also be required to consider questions of hardship resulting from their enforcement of environmental obligations.

Financial institutions expressed concerns during our review that they might be held responsible for the actions of their clients or the companies for which they act. We have no intention of pursuing a "deep pockets" approach to liability. While financial institutions should not be shielded from normal commercial risks, they should not be subject to potentially open-ended liabilities resulting from damage for which they were not responsible. To the extent that there are any 22WA uncertainties in the existing statutory provisions, we shall clarify them.

In Paying for our Past we said that, in the light of the emerging conclusions of the review, we would reassess the justification for the present unique statutory exemptions in respect of water escaping from abandoned mines which pollutes controlled waters. In view of the concerns that have been expressed about water pollution from abandoned mines, we shall propose legislative amendments to remove the existing statutory defence and exemptions for mines abandoned after the end of 1999 so that the agency will have the same powers for those mines as for other discharges.

We shall also propose a duty on mine operators to give the agency six months' notice of any proposed abandonment. This will provide an additional safeguard to ensure that when mines are abandoned this is done in a responsible manner with full regard to the effects on the water environment.

These provisions on abandoned mines will end a long standing anomaly and enhance the agency's ability to tackle and prevent pollution.

The regulatory authorities will have the task of identifying problems caused by contamination and establishing priorities for dealing with them. In the light of this, we do not consider that a general register of land subject to potentially contaminative uses is warranted, and we propose to repeal Section 143 of the Environment Protection Act 1990.

At the time that the review was announced, there were also concerns about the application of the common law to civil liabilities for contamination. Following the House of Lords judgment in the case of Cambridge Water Company v. Eastern Counties Leather plc, we believe that the law in this area is now better understood and provides a sensible balance between the interests of all potential parties. Accordingly, we do not propose legislative amendments to the common law.

We are very grateful to the 349 individuals and organisations who responded to our consultation paper, Paying for our Past. A summary of the responses and a list of those who agreed for their responses to be made public has been placed in the Library of the House, and reference copies of their responses have been placed in the DoE library. Responses relating specifically to Wales have been placed in the Welsh Office library.

The Government's proposals are set out in detail in the paper, Framework for Contaminated Land, which I have placed in the Library of the House and the Vote Office. They should lead to greater certainty and confidence in the market, helping to ensure that contaminated land is brought back into productive use and that environmental hazards are removed.

The necessary legislative provisions will be published shortly in the Environment Agencies Bill.