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Lord Lucas of Chilworth: I wish to follow my noble friend Lord Jenkin, but not quite down the same line as he took. My Amendments No. 238A and 372A, which is consequential, are grouped with Amendment No. 238ZA by the noble Lord, Lord Northbourne. As regards Amendment No. 238ZA it is, as the noble Lord described it, a state-of-the-art defence. In the circumstances which he described, I can see that it would be apt and fairly reasonable to accept the amendment.
Turning to the "appropriate person" with whom my noble friend Lord Jenkin was concerned, in the Bill the appropriate person is the one who caused or knowingly permitted the relevant substances to be in, on or under the land. But when we come to landfill, we find ourselves in something of a muddle. The waste regulation authority which licensed the site originally and which has monitored it and so on, has knowingly permitted the materials to be deposited. It not only permitted that to take place, but specified the types and quantities. So in a manner of speaking, it is the one who caused or knowingly permitted the contamination. If that is so, clearly the local authority cannot serve itself with a remediation notice. What then is to happen? Perhaps my noble friend will tell us.
A solution may well be, on the basis of the polluter pays principle, to ask who the polluter is. The polluter is probably no one single person. In relation to landfill, it is probably society in general. Therefore, if we designate authorities to administer these strict rules, we have to impose penalties on those who break the rules.
The Earl of Lytton: I rise to support the amendment of the noble Lord, Lord Northbourne. I should like to make three points, the first of which has been partly covered by the noble Lord, Lord Lucas. It raises the question of what might be regarded as contributory negligence. The point that really raises my concerns is the idea of serial legal action between owners of land and those who licensed the previous fill, and lenders, if that be the case. A great many things start breaking down if we set off down that road without having some sort of cut-off point. So, first, there has to be some element of containment of the social and economic (as it were) ill effects of any new legislation.
My second point is that there needs to be some sort of reciprocity of standards when we are talking about "fit for use". By that I mean that material considerations as to whether you have an old landfill site in one location and you want to put a housing estate in another location nearby must cut both ways. In other words, the position of the original landfill site must take into account as relevant considerations the proximity of other interests that could be affected. And by the same token, with the passage of time, new development must take into account the old sites. It cannot be otherwise. Therefore reciprocity of standards is extremely important.
I asked a learned acquaintance of mine the other day about "knowingly permitting" things. He said, "Yes, it has a long heritage in the area of health and safety". But I was unable to get an answerand I do not know whether the Minister can help meon this point. It seems to me that health and safety legislation relates primarily to a controlled workplace. By the very nature of the animal, we are dealing with something that is not totally in control. Either we do not have it properly contained, or we do not know enough about it. It is in some way out of control. I would like to know just how "knowingly permit" is to be interpreted in this instance.
Viscount Ullswater: These amendments seek to introduce exemptions from liabilities and defences against remediation notices in particular cases, and to require the local authority to act itself to deal with any contamination where these exemptions apply. The Government do not, as a matter of principle, accept any of these amendments.
These issues were considered on a general basis in our review of policy on contaminated land. It was argued by some that there should be a general regulatory compliance defence whereby polluters would be exempt from liability if they had acted in accordance with the consents and authorisations required for their particular activity. It was pointed out, however, that the general
Introducing exemptions from liability of this kind would run clearly against the widely accepted "polluter pays" principle. As regulatory action under these provisions can be required only to deal with cases of risk to health or the wider environment, the exemption could only have the effect of transferring the necessary costs of remediation to someone else, whether another person or the public at large.
My noble friend Lord Jenkin of Roding asked me to go back to basics. He asked what the words "permitting" and "knowingly permitting" meant. There is no evidence that the case law on that phrase, which is taken from previous environmental legislation, such as the Water Resources Act 1991 and the Environmental Protection Act 1990, has led to the kind of interpretation that my noble friend sought to put on it. There is no reason to believe that the use of the phrase in these provisions will be interpreted any differently or as widely as has been suggested by some noble Lords.
Amendment No. 238ZA, moved by the noble Lord, Lord Northbourne, and spoken to by the noble Earl, Lord Lytton, would prevent a remediation notice being served on the basis that the contamination of the land could not have been reasonably foreseen at the time when the substances were caused or permitted to be present in or on the land, as a consequence of the then state of scientific and technical knowledge.
While this might appear to reflect the same test of "reasonable foreseeability", which was recently established in the common law through the decision in the Cambridge Water case, the Government do not believe that the comparison is justified. Common law and statute law in this area do not have the same purposes. Actions at common law seek to provide remedies for private persons in respect of a variety of tortious acts; this proposed statute seeks to establish a regulatory framework to remove risks to health and the environment without introducing any notion of compensation. Given those essential differences, it is reasonable for the two systems to diverge.
In practical terms, the availability of this exemption would leave almost any attempt by the enforcing authorities to deal with any contamination open to litigation attempting to prove the state of knowledge in the past. Another perverse effect could be to provide an incentive to hold back developments in the state of science, as greater understanding could result in greater future liabilities.
Amendment No. 238A, moved by my noble friend Lord Lucas of Chilworth, seeks to introduce into these provisions an exemption from any remediation notice in respect of contamination caused by waste in a landfill for which a certificate of completion has been issued under the waste management licensing regime in Part II of the Environmental Protection Act. The unimplemented provisions in Section 61 of that Act, which we now propose to repeal, did include that specific exemption from the then proposed regulatory
It is not, however, meant to be a guarantee that no harm would arise at any stage in the future. Clearly, it is to be hoped that none would occur. But our regime needs to address who should be liable if it does occur. We can see no reason of equity why, in this particular set of circumstances, the liability should pass from the polluter to the public purse. No such transfer of liability occurs, for example, where other potentially polluting land uses come to an end.
Having such an exemption could result in the environment agency (which will take over the responsibilities of the waste regulation authorities) holding back from the grant of completion certificates, as they would have the effect of transferring liability to the public purse.
Amendment No. 372A would, in effect, place a duty on a local authority itself to carry out remediation works at its own cost where as a result of an exemption it was unable to serve a remediation notice. As I have already indicated, the Government do not believe that such exemptions should exist, nor that liabilities should transfer to the public sector in that way. Therefore, I ask the Committee to reject these amendments.
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