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Lord Coleraine: My Lords, the amendment moved by my noble friend Lord Stanley of Alderley seeks to provide a reasonable measure of protection for an owner against fly-tipping. I should like to speak to Amendment No. 154B, which is tabled in my name and which has been placed in this group of amendments. It is designed to provide a similar reasonable measure of protection to the producer or transporter of controlled waste who

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places it on a licensed disposal site. The position in the Bill at present, under Section 78E(2) of the Environmental Protection Act 1990, provides that,

    "the appropriate person is the person, or any of the persons, who caused or knowingly committed the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land".

I believe that that makes it quite clear that every time someone delivers controlled waste to a licensed disposal site he is bringing himself within the wording of that subsection. I do not think that that would really be considered reasonable.

Therefore, my amendment seeks to provide that the waste producer or the transporter shall not be,

    "the appropriate person by virtue only of his having imported, produced, carried, kept, treated or disposed of that controlled waste".

The Earl of Kintore: My Lords, I should like to speak to Amendments Nos. 152 and 153, which are tabled in my name and which have been placed in this grouping. The amendments seek to provide a defence against enforcement action for an owner or occupier of proving that he could not reasonably have known, at the time when he acquired that land, of the existence of the substances which are causing contamination. That would be a very limited defence but, if the amendment were accepted, it would remove some of the worst possibilities of owners and occupiers being held responsible for contamination in situations where they could not reasonably have been aware of any problem.

A housing development was recently built in Livingston, in Scotland, on land which had been contaminated by heavy metals more than 80 years ago. It is understood that the contaminated soil is now being removed by Livingston Development Corporation at a cost of several million pounds. Under the terms of the Bill, the owners of the individual houses would have been liable for that remediation work if the Bill had been in force. A survey for house purchase or, in most cases, purchase of a farm, could not possibly be expected to disclose such problems unless some very comprehensive land use history were readily available from local authorities.

Contamination is very different from other latent defects in land such as potential for subsidence, as it is virtually impossible to obtain insurance against environmental liability. The Bill makes some provision for hardship to be taken into account by a local authority in deciding whether to enforce the costs of remediation notice, but that is really not a satisfactory solution as the decision is a subjective one by the local authority. There should instead be a fair, and clearly established, principle applying to all owners and occupiers.

Viscount Ullswater: My Lords, Amendment No. 143A concerns the position of landowners whose land may have been contaminated by fly-tipping. At present, the waste regulation authorities have powers under Section 59 of the Environmental Protection Act 1990 to ensure that fly-tipped or any other illegal deposits of waste, are removed. As my noble friend stated, the "innocent" landowner has a ground for appeal against any attempt to make him remove the waste or be

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responsible for the costs of removing the waste where he can prove that he did not deposit or knowingly cause or knowingly permit the deposit.

However, the landowner could, in some cases, still be held responsible under the statutory nuisance provisions in Section 80 of the Environmental Protection Act and under the "amenity" provisions of Section 215 of the Planning Act 1990. In practice, the latter powers are not normally used in those cases so that the landowner subjected to fly-tipping will not have to bear the financial consequences of its clearance. That is the right policy and the one that we should like to see under the Bill.

However, as the Bill currently stands, I accept that that position is not fully achieved. Through paragraph 64 of Schedule 18, we have disapplied Section 59 in those circumstances where the land also comes within the definition of "contaminated land". Therefore, instead of there being two parallel powers as is the case at present, only the contaminated land provisions would apply. We see the need to change that position. I am grateful to my noble friend Lord Stanley of Alderley for raising such an important issue.

In making the necessary changes, we consider that the best way of meeting my noble friend's concerns is to disapply the contaminated land provisions in those cases where Section 59 would apply. In that way, all fly-tipping cases would be for the agency to deal with under its Section 59 powers. Indeed, that goes further than the former position in providing a guarantee that the grounds for appeal available to innocent landowners under Section 59 would always be available in cases of land subject to fly-tipping.

I turn now to the point raised by the noble Baroness, Lady Nicol. Under Section 59 of the Environmental Protection Act, an occupier is potentially liable if he knew about the situation and did not prevent it when it was within his power to do so. Therefore, the noble Baroness's concerns are reflected within the provisions of Section 59.

My noble friend Lord Jenkin of Roding returned to the problem as to whether the phrase "knowingly permit" is well understood. That phrase has been a basis for liability in environmental legislation for over a century. It was used in the Rivers Pollution Prevention Act 1876 and more recently was the basis for liability in relation to the deposit of waste in the Control of Pollution Act 1974 and in Part II of the EPA 1990; and, indeed, it was used for liability in respect of water pollution under the Water Act 1989 and the Water Resources Act 1991.

Over that long period, no substantial problems have arisen in relation to the courts' interpretation of the words "knowingly permit". Indeed, case law already provides that the test of "knowlingly permit" requires both knowledge of the contaminating substances and that it must be within a person's power to do something to prevent the pollution occurring. I hope, therefore, that my noble friend can accept that they are the proper words to use in the statute.

Having said that, we shall bring our own amendments to restore the scope of Section 59 so that it applies to any illegally deposited waste, and to disable the

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contamination of land provisions where Section 59 powers would be available. That would also restore the ground for appeal currently available to the victims of fly-tipping. On that basis, I hope that my noble friend will agree to withdraw his amendment.

I turn now to Amendment No. 145B, which is tabled in the name of my noble friend Lord Coleraine. It seeks to specify that a person who consigns waste to a landfill, for example, could not be held responsible for any subsequent contamination so long as the deposit made was legal, he was not the holder of a waste management or disposal licence, and he had no duties, or had complied with any relevant duties, under the waste management duty of care requirements.

As a statement of policy, the Government fully support the intention behind the amendment. We do not intend that the words

    "caused or knowingly permitted ... substances ... to be in, on or under ... land",

should be construed as including persons merely on the grounds that they had consigned materials to an authorised waste stream. However, we believe that that is already the effect of the existing provision. As a result, we should be reluctant to introduce an amendment into this legislation along these lines, lest by inference it cast doubt on the interpretation of similar tests of responsibility in other legislation.

The Earl of Onslow: My Lords, is my noble friend not aware that, as a result of a House of Lords judgment, the meaning of the word "cause" has been tightened up so that it means something different from what it originally meant?

Viscount Ullswater: Yes, my Lords, indeed I am aware of that. That has been a helpful interpretation of the word "cause". Every future judgment must be made with that knowledge.

Amendments Nos. 152 and 153, in the name of the noble Earl, Lord Kintore, would enable an owner or occupier to appeal against a remediation notice on the grounds that at the time he acquired ownership or occupation of the land he could not have known of the presence of contamination in the land. During the debate in Committee on this Bill I stated that the Government will, at a later date, be setting out what we believe should be available as grounds for appeal against a remediation notice. We do not believe that the inclusion of grounds for appeal based on a state of knowledge in the past would be justified. It would have the undesirable effect of leaving real environmental problems unresolved, not as a result of consideration of their current seriousness but as a consequence of the time or manner in which they were originally created.

In cases where the original polluter cannot be found, it is reasonable for anyone who benefits from the ownership of the land to take responsibility for any adverse consequences of its condition and for any works needed to deal with the harmful effects of contamination. That is not a new concept. It has been the position under the statutory nuisance provisions now in Part III of the Environmental Protection Act 1990, which were in turn based on public health Acts dating from 1875 onwards. It also reflects principles in the

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common law, namely caveat emptor in property law and the fact that in the tort of nuisance a person can adopt a nuisance by acquiring a site, becoming aware of the nuisance and failing to do anything about it. In that situation the new purchaser can become liable for the nuisance at common law.

I hope that I have put Lord Stanley of Alderley's mind at rest in relation to fly-tipping and that my answers to other noble Lords allow them not to press their amendments.

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