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The Earl of Lytton: As this amendment also has my name to it, I rise to say that I agree with the noble Lord, Lord Northbourne, and his succinct description of the problems. There are many instances where activities that go on on adjoining land, sometimes some distance away, can affect the substrata in a way that is outside the control of the landowner. I believe there is a very serious risk that knowledge of historical events may not be in the public domain and therefore may not be available to those who acquire or own land. If we are to

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have regard to the "polluter pays", we must address that particular problem. I strongly support this amendment in trying to ascertain the Government's views.

Lord Gisborough: I support this amendment. I live on an area of moorland beneath which are plates of rock. Pollution from ironstone mines comes from miles away and runs along the plates. I support the amendment.

Viscount Ullswater: Amendment No. 226C, moved by the noble Lord, Lord Northbourne, together with Amendment No. 226D, seeks to make a technical change to the definition of contaminated land. By removing the reference to substances under the land it would leave only those substances in or on the land. The Government's only intention in including the word "under" was to ensure that the definition was sufficiently broad and that there were no unfortunate and undesirable omissions. For example, the definition of land in the Interpretation Act 1975 includes land with water. We want to make sure that any contaminated silts at the bottom of streams and ponds, both of which may themselves be considered as land, can be dealt with under these provisions.

We also wish to avoid any doubt that the definition would include substrata beneath the soil, as we would need to address those in order to protect groundwater and aquifers. I am advised that the case law on the definition of land would leave some uncertainty as to whether all substrata were included in the meaning of "land" and so for the avoidance of doubt the reference to "under the land" must remain. That in any event reflects the definition of "land" in the Law of Property Act 1925, which refers to substances under the land. However, to make sure that we eliminate entirely any doubt on this question, I would not wish to accept the amendments.

9.15 p.m.

Lord Northbourne: My noble friend's reply has answered one question but it has created a good many others. While I am prepared to withdraw the amendment as it stands, there is a whole can of worms here about things that go on under the land which are totally out of the control of the owner of the surface of the land. We shall hope to raise those matters at a later stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 226D not moved.]

Lord Northbourne moved Amendment No. 226E:

Page 45, line 9, at beginning insert ("serious").

The noble Lord said: In moving Amendment No. 226E, I shall speak also to Amendments Nos. 226F, 226G, 228A and 228B. This is a further set of important amendments about the definition of contaminated land and they are intended to probe the Government's intentions. As the Government themselves stated in paragraph 2.6 of their policy framework:

    "It would be neither feasible nor sensible to try to deal with all land contaminated by past activities at once. The wealth creating sectors of the economy could not afford to do so. The urgent and real problems should be dealt with, but in an orderly and controlled fashion with which the economy at large and individual businesses and landowners can cope".

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This approach requires remedial action only where, as the Government say in paragraph 2.4 of the framework document, the contamination poses unacceptable actual or potential risks to health or environment and there are appropriate and cost-effective means available to do so, taking into account the actual or intended use of the site.

As drafted, the definition in the Bill, together with the remediation duties, seems to cover all contaminated land, no matter what the level of risk to the environment or the degree of harm. It simply is no good for the Minister to say that we must rely on guidance proposed under new Section 78A(3) to limit the definition. It surely would be ultra vires if guidance purported to limit the scope of a duty imposed by Parliament on local authorities to remediate where any contaminated land is farmed.

The proposed amendments seek to restrict the duties laid on the agency and the local authority to dealing with harm which is both serious and requires immediate remediation. That is entirely in line with the intentions expressed in the framework. I beg to move.

The Earl of Lytton: I rise to support this group of amendments. Although my name is not attached to Amendment No. 226F, I should like to support that amendment as well. It is vitally important that we have some further clarification of the definition of "harm". In the 1990 Act, the definition is drawn very widely. It could include almost anything, however insignificant. Something needs to be done to bring this into line with the principles of BATNEEC on the one hand and the best practicable environmental option on the other.

If the small and insignificant can be picked up along with the large, not only, as the noble Lord, Lord Northbourne, said, will we not get a proper priority set out for the necessary clean-up of such sites but also resources will be devoted to dealing with what one might call small fry situations rather than the more serious ones. Thinking in countryside terms, where I ought to declare some kind of interest, it is almost impossible to imagine one's bullocks milling at the gate without causing some muck in the gateway. In theory, bearing in mind that on Exmoor, where I farm, we already have problems with the outwintering of cattle and the surface damage caused in that situation, particularly on open moorland areas, it would not take much for an authority to pick on this and say, "Right, you, Lord Lytton, have got to clean up your act and you have to stop causing this damage". That is the logical conclusion of the term "harm" as a stand-alone word. I strongly support the amendments.

Lord Stanley of Alderley: I am somewhat concerned about the amendment. I warned my noble friend that I would raise this point. I am sure that your Lordships will have noted the definition of "harm" on page 46. Subsection (8) states:

    "'Harm' means harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property".

I hate to say this, but I am concerned about fly-tipping on private land, which I believe could increase because of the increased costs that have recently been imposed in relation to waste disposal. What is the position of the

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owner of land which has been subject to fly-tipping given that, as I understand the definition that I have just read out, that could lead to contamination. Is the landowner then liable? If so, that seems quite a problem.

The Earl of Kinnoull: I should like to support the amendments which stand in the name of the noble Lord, Lord Northbourne. There is a great deal of worry outside the House about the width of the definition and about why it is in such conflict with the Government's structure policy which was published only in November 1994. The noble Lord, Lord Northbourne, quoted part of it, but perhaps I may remind my noble friend that the policy recognised that where contamination poses an unacceptable risk to health—the word "unacceptable" is a limiting factor—the objective of the framework is not only to improve sites, as and when hazards need to be dealt with, but to encourage an efficient market in land which has been contaminated. That is a very practical point of view. Finally, the objective is to encourage the development of such land.

I hope that my noble friend will be sympathetic to the amendments because the definition, as presently drafted, could lead to authorities having to serve remediation notices on the smallest point. They would have no option but to do so. This is a serious issue and I hope that my noble friend will consider it.

Viscount Ullswater: The main aim of the amendments moved by the noble Lord, Lord Northbourne, is to change the overall definition of contaminated land in these provisions so that it includes only land causing, or likely to cause, serious harm or serious pollution of controlled waters such that immediate remedial action is required to ensure that its condition was suitable for its actual or likely use.

I am very grateful to the noble Lord for moving these amendments, as it provides an opportunity to expand on the Government's intentions in bringing forward the contaminated land provisions as a whole. As I said in our debate on the Second Reading of this Bill, these provisions are centred around our overall "suitable for use" approach to the issue of contaminated land.

In policy terms, this approach was described in our document Framework for Contaminated Land, as requiring remedial action,

    "only where the contamination poses unacceptable actual or potential risks to health or the environment; and there are appropriate and cost-effective means available to do so, taking into account the actual or intended use of the site".

We believe the "suitable for use" approach deals with the genuine environmental problems presented by contaminated land, but does so without creating unnecessary financial and regulatory burdens. But how we convert that policy into statute is what underlies this current debate.

These amendments, and other comments and suggestions we have received from our continuing consultations and discussions with individuals and organisations outside Parliament, suggest that the definition of contaminated land currently contained in

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this Bill perhaps goes beyond our original policy intentions and could include sites not posing unacceptable risks.

I would suggest, however, that the test of "serious" harm or pollution and the requirement for immediate remediation which is set out in the amendment could suffer from the opposite problem of being too narrow and restrictive. The Government acknowledge that the question of definitions is critical to these provisions as a whole and if the noble Lord will agree to withdraw his amendment, we would welcome the chance to bring forward our own amendments at a later stage to bring the legislative provisions into better alignment with our original policy intentions.

My noble friend Lord Stanley gave me warning that he was going to bring up the problem of fly-tipping, and raised the question of land which has been contaminated as a result of fly tipping. Of course, not all fly-tipping will result in land becoming contaminated, as defined in the Bill. While illegal in itself, fly-tipping of a small amount of builder's rubble may not result in contamination. On the other hand, I appreciate that fly-tipping of more toxic substances goes on and could cause contamination.

The provisions in Clause 54 do not specifically identify land which has been contaminated as a result of illegal action, such as fly-tipping. The reason is that in many cases it is not possible to determine precisely how or when a piece of land became contaminated, or whether it was the result of such activities. Where fly-tipping is known to have occurred, remedies already exist under Part II of the Environmental Protection Act 1990. In particular, Section 33 enables prosecution of the person who deposited the waste; and Section 59 contains power to require removal of waste unlawfully deposited. I am sure that those provisions are adequate to deal with the problem of fly-tipping.

I understand the concern of the noble Lord, which was echoed by other noble Lords who spoke about the problem of the definition, and with my explanation I hope that the noble Lord, Lord Northbourne, will see fit to withdraw the amendment.

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