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Lord Jenkin of Roding: My Lords, two of the amendments which I have tabled have been grouped with Amendment No. 142. Perhaps I may say a few words about each of them. It is obviously sensible that we should discuss the detail of remediation notices in one group, although they raise a number of different points. The point made by my noble friend Lord Peyton has a great deal of merit, if he will allow me to say so.
I shall deal first with Amendment No. 143B. The Bill defines "Remediation" (Section 78A(9)) as including the whole process from assessing the condition of land, through actual clean-up or containment operations, to subsequent checks that the remediation has been effective. Section 78D places the enforcing authority under a duty to serve "a" remediation notice but it is not clear what that should contain.
In practice, the following would be the likely steps: first, there would be the assessment of the probable and actual contamination of the site, partly through detailed investigations of its history, and partly through site investigations. That having been done, there would have to be an assessment of the seriousness and urgency of the problem in terms of the actual risk posed to human health and the environment. Thirdly, the enforcing authority would need to decide what measures are appropriate to deal with it (taking into account technical feasibility, effectiveness, cost and the degree of hazard or risk), and how long the work is likely to take. Subsequently it would carry out the work, and later monitor its effectiveness.
That means that the requirements for "remediation" (as defined in the Bill) will need to be laid down in a stepwise approach; normally, there will be at least two remediation notices. The first will demand the detailed investigations needed to assess the problem and the risks. Only then can the authority (or the operator) be in a position to weigh the seriousness and costs (as required by subsection (2)), and issue a further notice requiring the appropriate work to be carried out. In some cases the assessment may establish that, provided the condition of the site is monitored appropriately, there is no immediate need to proceed with remediation work.
Paragraphs (b) and (c) of the amendment seek to ensure, first, that the remediation notice can specify an end result rather than particular works, and that the notice can be modified or replaced should subsequent findings show that to be appropriate. In other words, one is there seeking to spell out what will be likely to happen in any particular case.
The noble Lord, Lord Williams, and others referred to the centuries of industrial activity which have given rise to a great inherited legacy of contaminated land. The document went on to point out that the "urgent and real problems" should be dealt with:
Those sensible words and that practical way of approaching the matter does not seem to be reflected in the Bill, which makes no allowance for that. As currently worded, it requires all land which is "contaminated", however slightly, to be subjected to apparently immediate clean-up. That is just not practical. In Committee, the Government accepted (Col. 1428) that that was not their intention and undertook to bring forward amendments to exclude sites not posing "unacceptable risks". But that still implies an approach which divides sites simply into those requiring and those not requiring clean-up, with no suggestion of an "orderly and controlled fashion" for prioritising the approach.
I have tabled the amendment, advised by my industrial experts in the field, as being a way of trying to reflect in the Bill what the Government originally put in their policy documentFramework for Contaminated Land. It may well be that we do not have it right, but there needs to be some provision indicating the need for prioritisation. That is what the amendment seeks to do.
That appears to the Government to be unreasonable. It would, in effect, burden business, landowners and even homeowners with the costs of proving that their land was or was not contaminated. We believe that the
As I explained in Committee, the provisions for further assessment to be included within a remediation notice were included in order to transfer to the "appropriate person" the costs of assessing the full extent of the contamination on any site. In practice, the process of carrying out that full assessment would be linked inextricably with the means chosen by the appropriate person to deal with the contamination itself.
Amendment No. 143B, spoken to by my noble friend Lord Jenkin of Roding, seeks to expand on the nature of any possible remediation notice, by specifying that it could provide for assessment, remedial works and monitoring in separate phases, either through separate notices or through variations to one notice. It would also make explicit that remediation notices could be framed so as to set overall objectives to be achieved, rather than describe particular engineering solutions to be implemented.
The Government understand the intention behind the amendment, which broadly reflects the iterative nature of the process of actual remediation on any site, with each stage enabling a better understanding to be reached of how further progress should be shaped.
The possibility of notices being served, which included only one, or two, of the three phases of remediation, is already implied in the current provisions. There is also nothing which might preclude the service of subsequent notices for whatever additional purposes might be reasonable in the light of the possibility of significant harm occurring.
I am happy to clarify that it is the Government's intention that wherever practicable and reasonable, remediation notices should be framed in terms of objectives, as suggested by my noble friend. However, just as with the question of subsequent notices, I do not believe that this needs to be spelt out in detail on the face of the Bill, particularly as the provisions allow regulations to be made prescribing the form and content of remediation notices.
Amendment No. 144B, in the name of my noble friend Lord Peyton, seeks to introduce specific references to the use of the land into the considerations governing what might be required by way of remediation. Here again, I am happy to confirm that the Government's intention is that remediation should be required only to the extent that it is needed to ensure that land no longer qualifies as "contaminated land". But, with respect, neither of these amendments would actually achieve that, even with the narrowed scope of the definition of contaminated land.
As my noble friend's comments suggest, we have already been through one round of amendments seeking to put explicit references to site use on to the face of the Bill. On that occasion, I raised the difficulty of possible effects on the water environment which were not dependent on the use of the site. Both these amendments have sought to address that problem, but others still
The second major difficulty with both these amendments is that they are, in fact, too broad in their scope. Both refer to the uses to which land is likely to be put. The Government, however, do not intend that this regulatory regime should make that judgment. It should be restricted to the consideration of what are currently environmental problems. It is the role of the planning authorities, acting under the terms of the guidance note PPG23, Planning and Pollution Control, for example, and the building control authorities, to ensure that the condition of land is suitable for proposed new uses and developments and that appropriate conditions are set to make sure that it is made so.
But even tying remediation requirements to current site uses would impose greater burdens than the Government would intend. In some circumstances, the only really cost-effective way of removing the possibility of significant harm on a site may, in the short term at least, be to change the pattern of use of the land to one that is less sensitive. For example, if a site used for public open space is contaminated to the extent that it presents health risks to those using the open space, the best way of removing those health risks may be to restrict public access to the site. Obviously, that is not going to be a universal or even long-term solution, but tying remediation requirements to an existing use would prevent it in all circumstances.
Amendment No. 144C, in the name of my noble friend Lord Jenkin of Roding, would seek to introduce various additional tests into the timing requirements for both the service of a remediation notice and the period within which remediation could be achieved. I do feel, however, that there are already sufficient protections against a person being required to do something in an unreasonable timescale, in that an enforcing authority must specify only things which are reasonable subject to the terms of Section 78D(2). This requires specifically consideration of the seriousness of the harm and the likely costs which would be involved. It is also intended that an unreasonable requirement would be a potential ground for appeal against the service of a remediation notice.
However, although I can understand the concerns that one company or individual may face if they receive a number of remediation notices in respect of different sites, I do not feel that this need necessarily be a consideration requiring the granting of extra time within which to comply with remediation requirements. If that company or individual is facing a number of remediation notices, that can only reflect the fact that it or he is responsible for contamination on a number of sites, whether as polluter or as owner. In such circumstances, it would appear reasonable that people should ensure that they are able to meet all their obligations; otherwise it will be public health or the environment which suffers. It could also result in those
Baroness Hilton of Eggardon: My Lords, I find the Minister's answer disappointing on two grounds. The first is the implication that local authorities will act unreasonably in serving remediation orders. The implication that they will go around scattering them like confetti represented a deeply disappointing attitude toward local authorities. I am sure that they will act responsibly and will not issue such orders without appropriate evidence that a site is likely to be contaminated.
The second reason why the answer was disappointing is that now the costs of assessing whether a site is contaminated will fall upon local authorities. As we know, they are very much strapped for cash and it means that contaminated sites will not be cleaned up. It will not be possible for local authorities to serve remediation notices when it is appropriate that they should do so because it is likely that a site is contaminated.