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Baroness Hilton of Eggardon: I am not wholly satisfied as to odours. It seems to me that if you are to build a school or some other place to which the public has access, rights under public nuisance law are not sufficient. Once the land has been developed in some way, if it continues to smell disagreeable it is too late to do something about it. I do not wish to press the point at this moment but I reserve the right to come back to it at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 228BB not moved.]

Baroness Hilton of Eggardon moved Amendment No. 228BC:

Page 46, line 13, at end insert:
("( ) "Assessment" means the doing of anything for the purpose of assessing the condition of land which appears to the local authority to be contaminated.").

The noble Baroness said: I rise to move Amendment No. 228BC and speak also to Amendments Nos. 237AA and 239E which are grouped with it. These amendments are concerned with the assessment of land which may be contaminated. The Bill requires local authorities to inspect areas within their boundaries and identify contaminated land, closed landfill sites and closed landfill sites that may be candidates for designation as special sites.

If a local authority identifies contaminated land it must serve a remediation notice. However, in its present form the Bill suggests that a remediation notice may also be used to require assessment of the condition of contaminated land, which in a way makes the

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assumption that it is known in advance that the land is contaminated. It does not allow for the possibility of assessing land which the local authority does not know to be contaminated. The Bill does not provide for the assessment of land that has been suspected of being contaminated to see whether it is contaminated. The amendments are intended to introduce a more logical approach to land that may be contaminated but about which people are not sure.

In those circumstances, the amendments will allow the local authority to serve an assessment notice that requires the owners or occupiers to determine whether the land is contaminated. The intention is to amend the Bill in a helpful way and allow local authorities to identify contaminated land. I beg to move.

Lord Northbourne: I should like to speak briefly to Amendments Nos. 228C and 239C, both of which deal with the detail of remediation notices. Amendment No. 228C proposes that the authority should inspect land at the expense of the landowner. In my view, inspections should not be carried out at the landowner's expense. Local authorities ought to be able to back up their convictions at the initial stages with their own resources; otherwise, there is no reason why they may not carry out what may be called fishing expeditions at the expense of landowners. It would seem to me that to give a blank cheque of this kind to local authorities is entirely unjustified.

As far as Amendment No. 239C is concerned, it is felt that, where remediation has been carried out and costs incurred by virtue of a mistaken assumption or assessment that land is contaminated, those costs should be recoverable from the local authority.

Lord Carmichael of Kelvingrove: I should like to speak to Amendment No. 233. I do not believe I can agree with what the noble Lord has just said. That leads on to Amendment No. 233, in which we suggest that "on a regular basis" should be substituted for the words "from time to time", which in these circumstances strike us a totally meaningless. We suggest that the requirement for local authorities to inspect an area from time to time in order to identify contaminated land and landfill sites is far too weak.

Local authorities must have a statutory duty to inspect their area on a regular basis and only a systematic programme of inspection will identify all the relevant sites. It is not in the public interest for site identification to depend on local authorities making inspections on such a vague basis. If an incident involved contamination which spread disease or even a rash among children or people going across the land, a report which was made only "from time to time" could have been produced a year before, 18 months before or two years before. It just would not stand up in court. Whatever action the Minister takes on the other amendments, this amendment is an obvious one to accept. He may not like the wording but he must accept that the sentiment and the reasoning behind the amendment are quite clear and strong.

Lord Gisborough: Amendment No. 228C is grouped with Amendment No. 237AA, which addresses the

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situation where the person on whom the remediation notice is served wishes to suggest an alternative method of remediation. It allows the local authority and that person to consult in order to pursue such alternatives if it is practicable to do so. I support that amendment.

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

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

Viscount Ullswater: I accept the noble Lord's correction of what I said and I understand what he is addressing. I hope that my remarks will apply equally to what he has just said.

It is perhaps arguable that some provision of this kind is necessary to protect industry and landowners from predatory remediation notices based on little real evidence of contamination, but the existing provisions in the Bill and the basic principles of administrative law do not really support that line of argument. An enforcing authority must act reasonably in determining that any land appears to be contaminated. If it were to serve a remediation notice on scant or little evidence that the land was contaminated, or with disregard for the guidance as to the identification of contaminated land, the notice could be subject to appeal and the authority's decision could be subject to review. However, it would be reasonable for the enforcing authority, once it is satisfied that there appears to be harm or water pollution caused by contamination, to require the recipient of a notice to assess the full extent of the problems on the site and subsequently to take the appropriate actions to deal with them.

The amendments in the name of the noble Baroness, Lady Hilton—Amendments Nos. 228BC, 237AA and 239E—would, however, permit a local authority to serve a specific assessment notice on land which appeared likely to be contaminated. In the Government's view, that would open up the system to precisely the kind of problems which the amendments in the name of the noble Lord, Lord Northbourne, sought to prevent. The noble Lord talked about a fishing expedition. Therefore, I would ask the Committee not to accept those amendments.

Amendment No. 233, in the name of the noble Lord, Lord Carmichael of Kelvingrove, seeks to change the basis of the inspection duty of local authorities to be on

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a regular basis rather than from time to time as currently provided. I would have to agree that in modern-day language the formulation "from time to time" might sound old fashioned and so I can sympathise with the sentiment behind the amendment. However, the existing phrasing has a particular legal intention and effect which I hope that I can persuade the noble Lord is not met by his amendment.

Different local authority areas will inevitably face different levels of problems associated with contaminated land. That may result from different patterns of development and land use, and from technical considerations such as the underlying geology of the area. In addition, the problems associated with the individual sites will arise or develop at different rates. The local authority may need to inspect on a frequent basis, but not necessarily at regular intervals, a site which it believes might start emitting methane gas. But most local authorities will not have contaminated land and will not present potential problems as a result of past land uses, and so long as the current use of those sites or others nearby does not suggest that new contamination might be occurring, the local authority would discharge its duty by inspecting at appropriate frequency, whether regularly spaced or not.

Both of those factors suggest that there should not be a rigid approach to the timing of the duty to inspect for contaminated land. Requiring inspections on a regular basis, as is suggested in the amendment, could lead both to unnecessary costs for local authorities and, in the case of some sites, to inspections not being carried out sufficiently frequently.

The formulation already in Clause 54 would permit a proper level of flexibility to allow both regularly spaced inspections (where that is considered appropriate) and frequent but irregularly spaced inspections for other cases. As I dared to suggest, "from time to time" is a time-honoured legislative formula which I should not wish to disturb without good reason. I am sure that noble Lords would agree with me and, on that basis, I wonder whether the noble Baroness would care to withdraw her amendment.

10.30 p.m.

Baroness Hilton of Eggardon: I am sorry that the Minister thinks that local authorities would indulge in fishing expeditions. Clearly, they might be activated by a desire to be sure that there was no pollution on old industrial sites, and it seems appropriate that they should have the powers to investigate. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 228C and 229 not moved.]

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