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Lord Northbourne: My Lords, no, I am afraid that the noble Viscount has not entirely convinced me. The position is very different as regards Part III and Clause 80 of the Environmental Protection Act. The best practical means which are referred to in subsection (7) of that Act refer to the landowner using the best possible means to prevent pollution and therefore not falling within the scope of an action under the Act. That is quite different from the whole question of what will be the requirements under the remediation notice.

I take comfort from what the Minister said about the lateral translocation of liquids. I hope that he will see the logic of accepting that the lateral translocation of gases or solid particles is in exactly the same category, or may be in exactly the same category, if it is suitably defined and specified. I cannot see why there should be any difference between the one and the other. If the one principle is accepted, then the other principle should surely be accepted. I take some comfort from the statement that it was not the Government's intention to create new categories of potential liabilities. All I am saying is that I think quite a number of us believe that they have in fact done so. I do not think this is something which can be debated on the Floor of this House because it is a complex legal matter. However, I wonder whether the Minister will agree to meet me and some legal experts on this subject with his legal experts and allow them to try to convince him that a great many of us, including the Royal Institution of Chartered Surveyors, the Country Landowners' Association and the National Farmers' Union, do not agree with his interpretation of the facts.

Viscount Ullswater: My Lords, with the leave of the House, I should say that of course I will always be open to a meeting as suggested by the noble Lord, Lord Northbourne. I have today identified existing liabilities and sometimes people find that uncomfortable.

Lord Northbourne: My Lords, I am grateful to the noble Viscount for his comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Ullswater moved Amendment No. 28:

Page 61, line 3, after ("and") insert ("the guidance").

The noble Viscount said: My Lords, this is a technical amendment which clarifies that the definitive guidance should be issued at the end of the negative resolution procedure rather than draft guidance. I beg to move.

On Question, amendment agreed to.

Clause 57 [Amendments to sections 89 and 161 of the Water Resources Act 1991]:

Lord Stanley of Alderley moved Amendment No. 29:

Page 65, line 32, after ("apply") insert ("to the owner or operator of any mine").

The noble Lord said: My Lords, your Lordships discussed the problems caused by abandoned mines in a series of amendments initiated by the noble Baroness, Lady Hilton of Eggardon, in columns 230 to 240 of

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Hansard on 7th March. However, I fear that my noble friend Lord Ullswater totally failed to convince me why an innocent occupier, who has polluted minewater crossing his land which then enters a controlled water, could be liable for that. My noble friend's actual words were,

    "I dare say that he would be liable".—[Official Report, 7/3/95; col. 240.]

I just do not understand or accept why an innocent occupier could be required to take possibly very expensive steps to prevent the pollution, as suggested by my noble friend—again at col. 240—when he said,

    "to be liable the landowner would have to know about the discharge and it would have to be within his or her power to do something to prevent it".

I do not see why the occupier should take any steps to prevent the pollution when he has had absolutely nothing to do with it. The purpose of the amendments is to protect the innocent occupier from being liable for polluted minewater which has come on to his property, perhaps from a mine many miles away, and which he allows—or, in the words of the Bill, knowingly permits—to enter a controlled water.

These amendments are linked with my Amendments Nos. 30 and 32 because I agree that it should be an offence to pollute watercourses. Those amendments make it an offence to do so from 31st December 1995 instead of allowing that pollution to continue until 31st December 1999. That is a matter on which my noble friend Lord Crickhowell and the noble Lord, Lord Mason, have expressed strong views. The statement by my noble friend Lord Ullswater at col. 240 of Hansard,

    "I dare say that he would be liable"
—"he" being the occupier—fills me with dread, as I am sure it does any Member of your Lordships' House who is a member of Lloyd's, or indeed has been studying the sad problems of Barings, for that phrase puts an unquantifiable pollution risk on an innocent bystander which is in contrast to the assurance given by my noble friend Lord Strathclyde in the Coal Industry Bill when he said on 13th June 1994,

    "If a liability has been created by someone else, then it is on the other person that the liability falls"—[Official Report, 13/6/94; col. 1480.]

Those two statements do not match up.

I listened as carefully as I could to my noble friend when he addressed Amendments Nos. 13, 14 and 19 moved by the noble Earl, Lord Kintore, when he intimated that the occupier would not be liable. If he did say that—I do not think that he did, actually—I should have thought the easy way to prove it is to put it on the face of the Bill, which these amendments do.

I feel very strongly about protecting the innocent individual, be he a property owner, just a tenant, a householder, or just an ordinary law-abiding and trusting individual, as I am sure does my noble friend the Minister. Therefore I hope that your Lordships and my noble friend will accept this amendment. I beg to move.

The Earl of Onslow: My Lords, I hope I can try to be helpful to my noble friend on the Front Bench. If I understood him right in the first place, he said that if something comes up in the ground from a contaminated

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mine and the surface landowner could have no cause to permit that stuff to then go on and pollute another watercourse, that landowner will not be liable for that because he has not caused or permitted that pollution to take place. If that is the case, I do not think we have anything to worry about because the landowner is not causing or knowingly permitting that pollution. If that is the case, I do not think that my noble friend Lord Stanley has anything to worry about. If, however, that is not the case, my noble friend Lord Stanley is right to be very worried.

5.45 p.m.

Viscount Ullswater: My Lords, I was not quite clear whether my noble friend also wished to speak to Amendments Nos. 30 and 32 at the same time, but I shall reply to them. The amendments would maintain the existing statutory protections for discharges from abandoned mines for everyone except the owner or operator of the mine. The amendment of the noble Earl, Lord Kintore, which is grouped with this one, aims to achieve a similar effect, as regards defence against prosecution, in Scotland.

We have already debated the topic of water pollution from abandoned mines at considerable length and noble Lords will know that this is a complex issue, not least because every set of underground workings is different in layout, in extent and in the potential for causing water quality problems. There has been considerable pressure on the Government to address the problem of pollution from abandoned mines, and we have examined the issue carefully. We believe that it is essential that discharges from mines abandoned in the future are regulated in the same way as discharges from other sources.

The Government's proposals are an appropriate response to an issue which has aroused no small measure of public concern. Indeed, as noble Lords know, some noble Lords have been pressing us to go further in the creation of new liabilities than we think advisable. I do, of course, recognise the concern that a landowner could be prosecuted for the pollution of a watercourse, when that pollution originated from an abandoned mine on someone else's land. However, for a number of reasons, I think that the potential problem is far less significant than my noble friend Lord Stanley might fear.

What is at issue here—prosecution for water pollution knowingly permitted to flow from an abandoned mine and liability for cost recovery—could only arise, under the Government's proposals, in respect of mines abandoned after the end of 1999. In the case of coal mines the Coal Authority, as the owner, has made careful separate arrangements aimed at ensuring that mine operators honour their responsibilities before abandoning a mine.

We are introducing changes in a measured way which will help prevent pollution occurring from mines abandoned in the future, rather than simply enabling the regulators to prosecute when it has occurred. My noble friend's amendments would cut across that approach and destroy the careful balance that we have sought to achieve.

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Once the agencies are established the statutory requirements for pre-notification of abandonment proposed in the current Bill will come into force immediately, followed at the end of 1999 by the removal of the statutory protections. Anyone responsible for a mine abandoned after that date would not only have to provide the agencies with information on the mine to be abandoned but, if discharges occur, they would also have to seek a discharge consent for them and ensure that discharges comply with the requirements set down by the agencies.

Although the water pollution offence is defined as "causing or knowingly permitting" pollution, it is a striking fact that there have been remarkably few prosecutions solely for "knowingly permitting" pollution. That is partly because "knowingly permitting" presents a difficult test to prove at law. For a person to be liable it has to be demonstrable that that person not only knows about the discharge but also has it within his power to do something to prevent it. The regulators have almost always, therefore, preferred to act against those causing pollution wherever possible. In the particular circumstance where mines are abandoned in the future it will be clear who the owner or operator is, and the agencies will be well equipped to tackle the problems before abandonment with the aim of establishing what preventive action, if any, is necessary.

I should emphasise that the regulatory powers in such cases will be the same as those which already exist for other types of water pollution. We understand the concern which is natural when there is an extension of liability. However, the Government felt it was right that discharges from mines abandoned in the future should no longer be covered by protection which was out of line with our wider policies on water quality regulation. Inevitably we have had to take account of the costs of any environmental improvement and the benefits to be obtained, but we believe that the measures we have proposed strike the right balance.

Amendments Nos. 30 and 32 would remove the existing statutory protections in respect of discharges from mines abandoned after the end of 1995 instead of 1999 as proposed in Clause 57. The amendment of the noble Earl, Lord Kintore, would maintain the existing defence against prosecution in Scotland.

In proposing the removal of those protections the Government have accepted that there is a need for a period of adjustment for those who could be affected. We do not think it right or sensible that a change such as this, which could affect land values and the way in which mines are managed, should be introduced without giving those concerned the opportunity to adapt to the new circumstances. The amendment of my noble friend Lord Stanley would have an almost immediate effect on the owners of land containing mines, as well as on mine operators, whose future liabilities could be increased, without warning and without a proper period of notice. I am sure that many noble Lords will accept the need for time to adjust and will agree that that would not be the proper way to proceed with the changes we are proposing.

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By contrast, the amendment of the noble Earl, Lord Kintore, would maintain the existing protections indefinitely. I believe that most noble Lords have been persuaded of the need for change, although at an appropriate pace.

We see the provisions in Clause 57 and Schedule 13 as part of a package, which also includes the measures which will ensure that the agencies are much better informed about impending mine closures and their anticipated consequences. It is therefore disturbing that the amendment of my noble friend Lord Stanley would remove the protections before the introduction of the provisions for pre-notification of abandonment, rather than their introduction, as we would prefer.

I hope that with those comments I have been able to persuade my noble friend that the amendments are not required.

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