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Lord Northbourne: I am profoundly disappointed by the noble Viscount's answer to my amendment. I believe that if the Government really want, as they state in paragraph 2.5 of their framework document, an efficient market in brownfield sites, they will certainly need something like the amendment. No business in its right mind will set up on a brownfield site with this sword of Damocles hanging over it when at any moment somebody may find a new contaminant and the company may be up for millions of pounds of remediation.

With that comment and the fact that I shall be coming back to the matter at a later stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 238A, 238AA and 238B not moved.]

Lord Peyton of Yeovil moved Amendment No. 238BA:

Page 50, line 48, at end insert:
("(5) When an enforcing authority has served a remediation notice in accordance with this section, it shall be the duty of the authority to take appropriate steps to satisfy itself that the requirements of that

31 Jan 1995 : Column 1459

notice have been complied with, and, if they have been, to issue and serve on the persons on whom that remediation was served a certificate of compliance with that notice.").

The noble Lord said: The proposed new Section 78(D) of the Act requires local authorities to serve notice on any site requiring restoration and to put a copy on the register. If we are to have a register, it would seem to me to be common sense that it should be kept up to date. Therefore it would be desirable that the same authority which serves the original notice requiring the restoration—I use the word advisedly—should, first, satisfy itself that the work has been done; secondly, put an entry on the register to that effect.

Amendment No. 238BA is a simple one. It does not need a long reply. I hope my noble friend will merely say that he will give it serious consideration.

Lord Northbourne: I wish to speak to Amendment No. 243A. I am happy with the solution to the problem of the noble Lord, Lord Peyton, and would not press the matter further unless the Government prefer our solution to his.

Viscount Ullswater: I listened carefully to what was said by my noble friend Lord Peyton of Yeovil. Looking again at the provisions with respect to registers, we feel that something needs to be done with respect to the sites that have been right through the regulatory process. We wish to consider in more detail, in the light of the comments from my noble friend and the noble Lord, Lord Northbourne, how we might do that. Though we are not attracted to the idea of deleting the sites altogether, we feel that the register should contain information in addition to that already specified in the provisions, specifically recording the nature and extent of any remediation works. We would look to bring forward an amendment at a later stage to plug that gap.

Included in this group is Amendment No. 244, in the name of the noble Lord, Lord Carmichael of Kelvingrove. It seeks to make explicit a requirement that a register of regulatory action as maintained by the various enforcing authorities should be available for public inspection and that facilities should be provided for the public to make copies of entries. It is certainly the Government's intention that the register should be public and should be available for inspection in much the same way as envisaged in the amendment. In developing the provisions we believe that that was already implied by the effects of other legislation such as the environmental information regulations 1992. However, if the noble Lord will consider withdrawing the amendment, we will undertake to consider the question again and, if necessary, bring forward our own amendment at a later stage. It shows that sometimes silence is golden.

Lord Carmichael of Kelvingrove: I think tonight it is platinum gold. I am very grateful to him for the help he has given on my amendment.

Lord Peyton of Yeovil: I am grateful to my noble friend for his assurance and beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

11.30 p.m.

Lord Northbourne moved Amendment No. 238BB:

Page 51, line 10, leave out ("be in, on") and insert ("come into, onto").

The noble Lord said: In moving Amendment No. 238BB I shall speak also to Amendment No. 238C. Amendment No. 238BB relates to the question of exactly what subsection (2) means. It refers to a person who has knowingly permitted any of the substances by reason of which the land is contaminated to be in or on the land. It implies that any person who is on land which has at any time in the past had such substances on it or has substances which have come on it in the past is liable. The purpose of the amendment is to put into words what I assume the Government mean, that the person who is liable is he who allows such substances to be brought on to the land, or to come on to it.

Amendment No.238C raises a substantive issue: the innocent party who is asked to pick up the can. I do not seek to argue with the principle that those who have caused contamination, including landowners who have caused or allowed contamination or who have knowingly benefited from a discounted price in purchasing land that has been contaminated, should bear the cost of remediation to a standard fit for use.

However, Clause 78E goes far beyond that. In effect, the landowner becomes the scapegoat or long stop if the agency cannot find anyone else, even if he is completely innocent of blame and has had no benefit from the activity that has caused the contamination. The effect of subsections (2) and (3) is that, where the appropriate person cannot be found, or where liability has been transferred directly or inadvertently—i.e., without necessarily the purchaser's knowledge or consent—the owner or occupier will be required to bear the costs of clearing up the contaminated land. That treats the landowner as a deep pocket, in exactly the way that the noble Viscount and the noble Lord, Lord Jenkin of Roding, suggested was inappropriate for lenders.

The deletion of subsection (3) will protect only innocent landowners or occupiers. New subsection (3) says that, where a person who polluted can show that he transferred the liability to the present owner or occupier, it is that person who is liable and the polluter is no longer liable. The transfer must be expressly made. The reference to "directly or indirectly" is deleted. Such a phrase is a recipe for uncertainty and litigation. In (3) (a), if the polluter has explicitly transferred the liability to a person who has failed to transfer it on to the next owner or occupier, it is that person who remains liable, not the polluter or his successor. In (3)(b), where a person refuses entry on to land to do works or otherwise prevents any person to deal with contamination, that person becomes liable.

I should like to ask the noble Viscount two questions. First, how hard will the local authority have to try to find the polluter before it finally falls back on the unhappy and innocent landowner - assuming he is an

31 Jan 1995 : Column 1461

innocent landowner? Secondly, what about the case where the polluter can be found but cannot pay? I beg to move.

Viscount Ullswater: The underlying concern shown by this amendment, and also expressed elsewhere, is that the test of "knowingly permitting" can spread the net of liability too wide, particularly as it can encompass knowingly permitting the continued presence of contaminating substances. Amendment No.238BB moved by the noble Lord, Lord Northbourne, seeks to resolve that perceived problem by restricting the application of the test so that it applies only to the original polluting act when the substances came into or on to the land.

We consider that the effect of the amendment is to exempt too many categories of people who should be held responsible. We believe that it would be reasonable for somebody who has had active control over contaminants on a site, for example when redeveloping it, to become responsible for any harm to health or the environment that may result, even if he did not originally cause or knowingly permit the site to become contaminated. This amendment would exclude such a person from liability.

The Government appreciate that there are anxieties expressed about the existing test and are considering the issue carefully but do not accept some of the wider constructions being placed by others on the words "knowingly permitting" since this is not reflected in the judgments of the courts. We recognise, however, that this is a question of potentially great significance and we may wish to return with further clarification at a later stage.

Amendment No. 238C, in the name of the noble Lord, Lord Northbourne, seeks to amend the provisions by which liability might pass from the original polluter to the owner or occupier of the land. This, too, is an area in which the Government would wish to consider further the comments made both in this debate and elsewhere, and to bring forward a revised formulation at a later stage. The structure of liabilities set out in these provisions is intended to reflect the polluter pays principle that primary liability falls to the person who caused or knowingly permitted the contamination. In addition to the notion of a transfer of liabilities, the Government believe that where the original polluter cannot be found, it is justified that the current owner or occupier of the land should be held responsible for its condition and for any works needed to deal with the contamination. It is not a new concept. It was the position under the statutory nuisance powers in Part III of the Environmental Protection Act and also reflects principles in the common law. However, this amendment would mean that this principle would not be reflected in the contaminated land provisions. The Government believe that this would be wrong. However, I think I have indicated that the Government would wish to consider further the comments made in this area, and I would ask the noble Lord to withdraw the amendment.

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