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Viscount Addison: My Lords, I thank my noble friend for all he said in his very long reply to my two amendments. I would like to study more fully what he said in Hansard tomorrow. In view of all that he said and the helpful way he put the message across, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

[Amendment No. 127 not moved.]

The Deputy Speaker (Lord Murton of Lindisfarne): My Lords, in Clause 54, Amendment No. 128—standing in the name of the noble Earl, Lord Kintore—and Amendment No. 128A appear to be alternatives. If either of the amendments is agreed to, I would not be able to call Amendments Nos. 128B to 128E inclusive because of pre-emption.

Clause 54 [Contaminated Land]:

The Earl of Kintore moved Amendment No. 128:

Page 45, leave out lines 9 to 15 and insert:
("( ) "Contaminated land" is any land or interest in land, whether comprising of the surface or of any substratum, mine, mineral or underground space, which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in or on the land, that—
(a) significant harm, or
(b) pollution of controlled waters,
is being or is likely to be caused.").

The noble Earl said: My Lords, I welcome the attempt that is being made by Clause 54 to clarify and improve the law on contaminated land. I fear, however, that there are serious flaws which, if not corrected, will result in significant prejudice to innocent owners and occupiers.

The amendment seeks, first, to provide that any harm emanating from substances in the land must be significant for the definition of "contaminated land" to be met. There are many situations where substances in the ground—such as normal levels of agricultural pesticides—cause harm to certain organisms, even where the overall effect of the substance in question may be beneficial.

Secondly, the definition of "contaminated land" must be tight enough to ensure that where contamination is in an underground seam or mine which does not belong to the surface owner, the surface owner will not be held

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liable. The wording of the Bill, which refers to substances under the land, places full liability on owners and occupiers of the surface—even tenant farmers—for contamination in underground mineral seams or mines which belong to someone else. This would place an immediate liability on surface owners for polluted water in disused coalmines. It may be that that is an unintentional effect of the Bill, but it would be highly unsatisfactory and unfair.

The conveyancing theory in both Scottish and English law is that ownership of land has no vertical limits unless these are specified in the title. There is therefore no need to refer to substances under the land because the surface owner is assumed to own everything below ground unless the title says otherwise. There are, however, many exceptions where mines and minerals belong to a third party. In the terms of the Coal Act 1938, all coal mines were vested in the coal commissioners, subsequently the National Coal Board, and now the Coal Authority.

In moving the amendment—which is grouped with others, including government ones—I hope that the Minister will take an early opportunity to give the Government's views. I beg to move.

Viscount Ullswater: My Lords, it may be for the convenience of the House if I were to address the amendments standing in my name on the Marshalled List. By doing so, I hope to be able to explain the Government's intentions. I hope that the House will allow the debate to continue and then, with the leave of the House, perhaps I may wind up at the end.

I am speaking to Amendments Nos. 128C, 128F, 129F, 129G, 135A, 141A, 144D and the others in my name grouped with those amendments. I am pleased to have been able to table the amendments before today's debate. They all relate to the overall definition of "contaminated land" and the process by which it is determined whether individual sites qualify as such. I must of course apologise for their relatively late arrival, and, while I would not normally wish to table amendments so close to the day on which they are to be debated, I felt that it would be better for them to be tabled and debated as soon as they were ready, rather than to leave them until the Bill is debated in another place.

Amendment No. 128C is the most important in this package of amendments, as it adds the qualification that harm must be significant into the definition of "contaminated land". That reflects the Government's original intentions, and our overall "suitable for use" approach. It will also, I believe, meet many of the concerns as to the scope of these provisions raised by noble Lords in our debate on this clause in Committee.

That notion of "significant" harm includes the consideration together of the extent of any harm and of the nature of what might be affected—what is called in the technical jargon, the "target". For some potential targets—human health, for example,—quite small amounts of harm might be unacceptable. But when considering damage to property, as another example, the test might be less stringent.

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Moving beyond that, some targets will be disregarded altogether. It is not the Government's intention, for example, to introduce through these provisions new requirements for the protection of habitats and ecological systems over and above those already in place under existing wildlife and habitat legislation.

The second major element of Amendment No. 128C is the new test relating to the "significant possibility" of harm being caused. In deciding whether remediation might be required on any site, a balance needs to be struck between the probability of any harm arising, and the consequences if it does. For example, the chances of methane gas on a site actually resulting in an explosion at any given time may not be all that high, but the consequences of an explosion to people living nearby would be so great as to require action to be taken to reduce even that slight possibility.

The amendment deliberately leaves unchanged the existing test in respect of pollution of controlled waters. That reflects the existing test under water legislation, in particular Section 161 of the Water Resources Act 1991, which can also be used to deal with land which is likely to pollute waters. The Government's intention in including water pollution within the definition of "contaminated land" for the purposes of these provisions was to try to ensure that individual sites did not face dual regulation, and so that a single process could address all of the problems associated with contaminants in the land. That purpose would be frustrated if this legislation sought to impose a different test from that which applies under the water legislation.

The process of determining whether there is, in fact, a significant possibility of significant harm arising on any individual site requires a detailed risk assessment on that site. Amendments Nos. 128F and 135A provide for local authorities to act in accordance with guidance from the Secretary of State with respect to the manner in which they both seek to identify contaminated land and determine whether the land is contaminated. That will ensure that the local authorities act in a technically sound way, reflecting best scientific practice in this area.

Amendment No. 129F provides for guidance to set the parameters within which the questions can be determined as to whether any harm is significant; whether the chances of its occurrence are significant; and whether pollution of controlled waters is likely to be caused. This provides for the guidance to be able to ascribe different degrees of importance to different types of target and different categories of harm. Specifically, it allows for particular descriptions of these to be disregarded, where that is appropriate. We believe that that overcomes the problems of vires identified with the guidance in the original provisions, by the noble Lord, Lord Northbourne, in particular.

There is understandable concern that that important material should be in guidance, rather than on the face of the Bill or set out in regulations. I believe, however, that our approach is the best in the circumstances. The decisions on each individual site will be based on detailed technical judgments, relying on the consideration of a wide range of factors in each case. It would quite simply not be possible to prescribe for all possible circumstances what answers those technical

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judgments should arrive at. The best that can be achieved is for the parameters of the necessary technical judgments to be set through guidance in accordance with which local authorities must act, and which will be subject to parliamentary scrutiny. That guidance would, in any case, carry strong evidential weight in the courts if any remediation requirements were to be challenged on the grounds that the guidance had not been followed.

A further benefit from the production of that guidance will be to improve certainty in the property market. At present, local authorities are able to use their powers under the statutory nuisance powers in Part III of the Environmental Protection Act 1990 with very little by way of guidance. The guidance under this part, with its strong status, will provide a guide to anyone interested in knowing what might be required of them by way of remediation. That will enable them to plan their property investments accordingly.

But aside from those benefits, the guidance will obviously have a central impact on the effect of these powers as a whole. That is why we feel that it is appropriate that it should come from the Secretary of State, and should be subject to parliamentary scrutiny through the negative resolution procedure. That is the effect of Amendment No. 165A.

That amendment also introduces two further requirements with respect to any guidance to be issued by the Secretary of State under this part. First, before it is issued he will have a duty to consult the appropriate agency, and such other bodies and persons as he considers appropriate. And I am happy to confirm that that consultation will be detailed and involve a wide range of interests. Secondly, the amendment states explicitly that any such guidance will be published.

I wish to commend this package to your Lordships. I believe that it provides a technically robust, and legally secure, basis for delivering the "suitable for use" approach which gained widespread support in the responses to our consultation paper Paying for our Past.

4.15 p.m.

Baroness Hilton of Eggardon: My Lords, the late arrival of the amendments on Friday evening makes it difficult to comment upon them in detail. I shall therefore address my remarks largely to the crucial amendment (Amendment No. 128C) which introduces the concept of significant harm.

The Bill as originally drafted had a wide definition of harm to any living organism. That might have caused great difficulty in relation, for example, to the application of pesticides to land, which could have resulted in it being automatically designated as contaminated. However, we are left with the words "significant harm", and their definition will be dependent upon guidance. So, in a sense, although we are slightly further forward, we are not entirely clear about what is intended by that definition of "contaminated land".

Amendment No. 128C appears to be inherently contradictory. The Minister said that it created a balance, but on one side it makes more stringent the definition of "harm", while on the other it introduces the

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possibility of harm, which widens the provision to the extent that it no longer provides a clear definition of what is contaminated land. One goes from a narrow definition at one end to what might be interpreted as a very broad definition at the other end.

The fact that we do not have the guidance before us makes real comment on the amendments difficult at this stage. I hope that we can obtain an assurance from the Minister that at least the draft guidance will be available when the Bill appears in another place.

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