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Environment Bill [H.L.]

8.36 p.m.

Consideration of amendments on Report resumed on Clause 54.

Lord Northbourne moved Amendment No. 144K:

Page 51, leave out lines 12 and 13.

The noble Lord said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 144L and 144M. The amendments get to the heart of the problem. They relate to the questions: who is the appropriate person upon whom the notice should be served and who should be required to put the matter right? The subject divides itself into three sections: the polluter; the question of the transfer of liabilities; and the residual liability of the landowner or occupier. The point about the polluter is covered by what will be new Section 78E(2). These are probing amendments on the basis of which I should like to ask the Minister a number of questions. I accept that he may not have the answer in every case tonight, but I hope that we can at least discuss them between now and Third Reading.

My first question is: which polluter? Subsection (2) talks about finding the person who, "knowingly permitted the substances" to be on the land. There may be several such persons. Is the polluter the largest polluter or the most guilty? Is the polluter the person who is the easiest to find or the one with the deepest pocket? If none of those descriptions applies, what other criteria will be used for the selection of the polluter?

My next question is: how hard must the authority try to find the polluter? We have to remember—we shall come to this later—that if the authorities fail to find the polluter, the landowner may be liable. We may be talking about many millions of pounds. The question of how hard the authority has to try to find the polluter is therefore significant.

Should not the authority be responsible for allocating the responsibility as between the polluters? And what happens if the polluter is found but cannot pay the whole cost—or even any of it? More specifically, what happens if the polluter is a company and that company has gone into liquidation? If the polluter can get off the hook by going into liquidation, that will become standard practice. As soon as any chemical works or any other polluting activity closes down, the structure of the company responsible will be changed so that it goes into liquidation. Those are my questions in relation to the polluter.

Subsection (3) of new Section 78E relates to the transfer of liabilities. What does the Bill really intend by the words,

to the landowner? That seems desperately vague. For example, does the phrase include or exclude the termination of a lease or licence by the effluxion of time, the termination of a lease or licence by its surrender, or

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the transfer of the freehold for a price which does not make allowance for the liability of pollution? How can the landlord prevent the implied transfer of the liability?

In this context, perhaps I can quote the case of Tilmanstone colliery in Kent. When I was a boy it was owned by Pearson, Dorman, Long. Foul water was pumped out from that deep pit. I remember that it was hot. It was pumped into channels which ran across a field; it steamed. The pollution sank into the ground and affected one of the aquifers being used by the South East Kent water company. The aquifer has never been purified. After the war, the water company installed a pumping station and a seven-mile pipeline to the sea. It pumped and pumped for about three years but simply could not reduce the pollution. In the end the project was abandoned.

Who is responsible for that pollution? Is it Pearson, Dorman, Long? Was responsibility effectively transferred to the National Coal Board? If so, did the National Coal Board successfully transfer the liability to British Coal? If so, has British Coal successfully transferred the liability to the agency, and so on down the line? That is a very important question. I shall come back to it.

The landowner has residual responsibility. I, my colleagues whose names are attached to the amendment, the Country Landowners Association, the National Farmers Union and the CBI, are in agreement that the landowner or occupier should accept his share of the responsibility for pollution where he had knowledge that pollution was taking place and consented to it, or where he benefited financially from the activity which caused the pollution. New Section 78E goes far beyond that. What about the landowner or occupier who is not to blame and who has not benefited? Your Lordships may say, "How can this be?" I shall give examples; I have divided them into three categories. There is the landowner who could not have known. This reverts to the amendment of the noble Lord, Lord Stanley of Alderley, on fly-tipping. A landowner cannot necessarily know when material is being illegally dumped on his land.

What about the landowner who has a mine driving a gallery 1,800 feet below his property? How can he know? What about the aquifer I was describing in connection with Tilmanstone pit? How can a landowner know that 10 miles away an aquifer is being polluted and that that pollution is drifting under his land? There is also, of course, the question of airborne pollution.

The second category is the landowner who could not prevent the pollution taking place—for example, a landowner who is subject to a compulsory purchase order or who has mining licences granted in respect of the ground under his land. There is also the question of the movement of contamination from neighbouring land.

Finally—an important and desperately difficult issue—what about the situation where the goalposts have been moved? I give an agricultural example because I am a farmer. When I trained in agriculture and for many years thereafter the great guru of British agriculture was Sir George Stapleton. His recommendation was "lay farming". The good guys in agriculture were those who practised lay farming. They

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grew grass and every three or four years ploughed it in, putting fertility and humus back into the soil and thereby producing good crops.

About five years ago we were suddenly told that ploughing grassland was wicked because it was a major contributor to nitrates in the groundwater. All those years I had been doing what I was told to do, what ADAS told me to do and what, I think, I was given subsidies to do. Suddenly, the goalposts were moved. Am I to be punished for having acted as I did? That is only one example. There are many, and there will be many more. When new forms of pollution are discovered, technology will unearth new problems relating to human health. For example, I am told that the European Union is considering designating coal as a contaminant. That completely changes the ball game as far as abandoned colliery sites are concerned. Who will be responsible for that? It is a real question. Why should the landowner be liable?

On Second Reading the Minister said that the provision in the Bill does not alter the present position under statute and common law as regards the responsibilities of the landowner. I am sure that the Minister has been incorrectly advised. The Bill would, I am advised, greatly extend the existing liability of landowners and occupiers under statute and common law. Furthermore, it removes the defences which presently exist. My Amendment No. 150A reinstates those defences.

In my view, the objective of those drafting the Bill has been to find a scapegoat who could be made to pay if the guilty party could not be found. I am sorry that so few noble Lords are in their places because this is a very important issue. If the House wishes to connive at such injustice I shall seek an opportunity to vote on the issue at Third Reading. In the meantime, I hope that the Government will see the justice of making some change, that they will take away these amendments, consider them, and come back with some help. I beg to move.

The Earl of Lytton: My Lords, I support the amendment, to which my name is attached, and confirm my belief that there is a very substantial point of principle as to how liabilities for contamination can be transferred. Many types of contamination are new phenomena which were unknown a generation ago. Some types of chemicals that we understand now to be contaminants were marketed freely. So it is not surprising that types of land use and refuse disposal techniques involving putting materials into land which may now be regarded as potentially contaminated have produced, in some instances, significant environmental harm. I do not wish to understate that but at the time it was not realised.

Now we have the situation, so eloquently underlined by my noble friend Lord Northbourne, where practices once thought harmless are being called into question. I wrote recently to the Minister with regard to how the principles of caveat emptor and strict liability were to be reconciled. I understand clearly, that the polluter pays—a principle which I support—but I had in mind the desirability of avoiding liability falling on the innocent, which, to my mind, is an equally undesirable aspect.

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I was grateful to the Minister for what I describe as a most revealing reply. It was a genuine attempt to be helpful. Perhaps I may paraphrase what I understood it to say. First, it said that the polluter should not pay twice—I accept that—and that where there had been a valid transfer of land, reflecting the pollution presence, that transaction should be respected. Of course, I understand and accept that too. Then, something more than reliance on caveat emptor might be required where there was a known polluter. Of course, I can accept that principle as well, but there is a grey area where liability may arise out of a normal transfer under what are known as the standard conditions of sale, but where the polluter cannot be identified.

I have difficulty with the phrase "cannot be found". That may be capable of being interpreted in a number of ways: to include those who were in existence once, but are no longer; on the other hand, it may not be concerned with identity alone. This group of amendments seeks to obtain some guidance on those points. For if the polluter should not pay twice how much more important morally is it that the wholly innocent owner or occupier for the time being should be shielded from liability.

By "owner", I do not mean the well-heeled large estate owner so much as the householder, the smallholder, the small businessman, the small farmer. Those are the people who need protection. I wonder whether it is the intention of the Bill that the shirt should be taken off those people's backs for liabilities as regards which, patently, they may be innocent. As the Bill stands, some polluters may get away scot free while innocent parties struggle through the courts to try to clear their names. Worse still, for many of those people who happen to be owners or occupiers it will be pure chance. That cannot be allowed to stand, and I hope that the Minister will be able to give some further guidance on that point.

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