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Lord Stanley of Alderley: Before the noble Lord, Lord Northbourne, replies, I was pleased to hear my noble friend's remark about fly-tipping, but he missed one important point which always arises with fly-tipping; that is, one cannot find the person who fly-tips. If one cannot find the person who fly-tips, and it is causing contamination, which it may well be, am I responsible?

Viscount Ullswater: As I said, the provisions of Clause 54 apply to land which has been contaminated as a result of illegal actions such as fly-tipping. To that extent, the owner of such land could be liable under those provisions. However, the owner could already be liable to deal with contamination under statutory nuisance and town and country planning legislation. So these provisions do not significantly change liability in that respect.

Lord Elton: Before the noble Lord, Lord Northbourne, decides what he will do, perhaps I may

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ask my noble friend to let me know—it might save the Committee's time if he does so at his leisure—whether the word "remediation", which is in the amendments, occurs here for the first time in the Bill or has been invented at some other time. If it is in the Bill, I should like to protest about it later.

Viscount Ullswater: I had better obtain advice upon that point and come back at another stage.

Lord Williams of Elvel: Is the noble Viscount not aware that "remediation of contaminated land" is a term of art? It is perfectly well understood in all professions that have to do with this.

Lord Northbourne: I most grateful to the Minster for what he has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 226F and 226G not moved.]

9.30 p.m.

The Deputy Chairman of Committees (Lord Lyell): I have to inform the Committee that if Amendment No. 227 is agreed to, I shall be unable to call Amendments Nos. 227ZA to 227B inclusive.

Lord Lucas of Chilworth moved Amendment No. 227:


Page 45, leave out from beginning of line 15 to end of line 2 on page 46.

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 229, 230, 231, 233A, 234, 237 and 245, all of which are consequential upon Amendment No. 227. I should like also to address a few remarks to Amendment No. 227ZA in the name of the noble Baroness, Lady Hamwee, and Amendment No. 227A in the name of the noble Lord, Lord Northbourne, because they are germane to what I have to say.

We are entering a new area; that of contaminated land. Its degree of seriousness is indicated by the number of amendments on the Marshalled List. The amendments tabled in my name seek to remove the special arrangements for landfill sites, which in all conscience fall within the wider category of contaminated land.

The definition of contaminated land in Clause 54 is welcome. It is defined as land causing or likely to cause harm or pollution of controlled waters. An introduction of the new provisions will remove some of the doubts and uncertainties that have arisen in the past.

It is not my intention to seek any favourable treatment for closed landfill sites. However, I am puzzled to see that separate arrangements are proposed for closed landfill sites. Even more puzzling is exactly what the special arrangements are designed to achieve.

Clause 54 proposes a straightforward procedure. Local authorities will identify contaminated land then issue remediation notices, according to the advice of the agency. As regards closed landfill sites, the process becomes more complicated. There are a series of notifications from the local authority to the agency, from the agency to the Secretary of State, from the Secretary

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of State to the agency and then to the local authority. If at that stage the site is designated special, the agency will prepare a remediation statement. If it does not, the local authority will do so. Nowhere in the Bill is it clear exactly what is the purpose of a remediation statement and its relationship to a remediation notice. One presumes that at the end of the day the net result will be a remediation notice.

There appears to be some obscurity behind the clause. One is driven to speculate whether it is designed to address the problem of old local authority sites which were never licensed. In that case, presumably the authority will be unable to serve a remediation notice on itself. Will private and public sites be treated in the same way? What exactly do the Government want?

Amendment No. 227 sweeps away the entire definition of landfill, leaving it purely and simply as contaminated land —which is what it is—unless it is cleared by the local authority. Why do we need to mess about? Why not call a spade a spade and have done with it?

In Amendment No. 227ZA the noble Baroness, Lady Hamwee, and the noble Lord, Lord Beaumont of Whitley, seek a different definition of a closed landfill site. No doubt they will explain the matter and say whether I am wrong or confirm that I am right. Their amendment appears to widen the definition to include all and any landfill sites from whatever time they became so. As I said, Amendment No. 227 effectively calls for landfill to be defined as contaminated or potentially contaminated. That is as it may well be determined by the agency.

Therefore, I am left in a good deal of confusion as to why a closed landfill site should be picked out separately from any other contaminated land. Frankly, there is no great mystery about a landfill site. It is either contaminated, potentially contaminated or it is not contaminated. That can be determined. Monitoring and inspections in relation to the use of the site will take place for years and years after it is closed. If my noble friend is able to help me, I shall know rather better how to proceed with my amendment. I beg to move.

Lord Gisborough: I should declare an interest because I have an old and a present landfill site on my land.

The amendments would provide a defence for a person to argue that at the time it was carried out, the activity which led to the land being subsequently deemed to be contaminated was entirely legal and represented the state of the art at the time. In its report in the 1993 EU Green Paper on the use of civil liability for remedying environmental damage, the House of Lords European Communities Committee argued that there should be a state of the art defence as a matter of equity to encourage people and companies to make their best efforts to minimise the risk of future pollution.

Lord Northbourne: Perhaps I may speak briefly to Amendment No. 227A. Its purpose is to exclude from the provisions of the clause sites where the deposit took place before the coming into force of Section 3 of the Control of Pollution Act 1974. That Act was the forerunner to the current controls over waste, and under

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Section 3 of that Act, it became an offence for the first time to deposit controlled waste on any land. This amendment clarifies the deposits which are covered and limits them to those which were regulated at the relevant time by excluding those which could not have been regulated at the relevant time. That is entirely in accordance with the preceding subsection.

The Earl of Lytton: I too should like to speak briefly to Amendment No. 227A. It seems to me that the problem revolves around the question of blight where old landfill sites of one sort or another have been subsequently built on in good faith and no doubt with the benefit of building regulations consent from the local authority and in the full knowledge and extent of the then state of the art for cleaning up the site.

We know that some cases have not been entirely successful. Migration of methane gas and putrescible material has been found under some of those areas. It is perhaps less of a problem on an industrial site. Although I have no direct personal knowledge, I believe that a number of residential sites have been affected if not directly then indirectly by proximity. Are those owners to be the people on whom remediation notices will be served? Will their equity be affected?

There is a case to answer here which the Government have not addressed. I am concerned that unless we have an indication from the Minister that there will not always be somebody standing to stop the bullet which is being fired in the name of remediation, we are in for a very serious time in relation to some of those hard cases.

In my view, it is not possible for government departments and the Treasury between them to say, "We want an entirely risk-averse situation". No such thing exists in life; we all run risks. Running risks based on our own past national performance and standard of doing things, and so on, is one of the occupational hazards of progress.

Therefore, in certain circumstances, it will ultimately have to be accepted that some things are a collective, public problem and that they have to be treated like that if we are to procure a collective, public benefit through the clean-up. There is a very important point involved. I am pleased to support Amendment No. 227A, tabled in my name and that of the noble Lord, Lord Northbourne.

Viscount Ullswater: In speaking to Amendment No. 227, I shall deal also with Amendments Nos. 227A, 227ZA, 227B, 229, 230, 231, 233A, 234, 237, 237ZA and 245. The amendments all address the way in which contaminated closed landfill sites are considered and dealt with within the overall provisions for contaminated land.

Amendment No. 227, moved by my noble friend Lord Lucas of Chilworth, would remove entirely the definition of "closed landfill sites". Other amendments tabled in the name of my noble friend would then replace references to closed landfill sites in particular with references to contaminated land in general. The Government's view is that an element of attention to some of the problems particularly associated with closed landfills is justified.

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From a technical point of view, closed landfills can give rise to particular types of problem from methane gas, noxious leachate or a diverse range of contaminants, as indicated by the noble Earl, Lord Lytton. That is not to say that they are necessarily more harmful than other kinds of contaminated sites, but in general the extent of contamination tends to be deeper and to present a certain type of engineering problem. Specific consultation with the agency, and in particular with its waste regulation side, which will inherit the wide experience of the waste regulation authorities, is therefore desirable to ensure that those sites can be dealt with in the best way.

In singling out closed landfills for a more tailored approach, we are reflecting the special emphasis given to such sites in much of Europe. We are also reflecting the concern expressed by Parliament during the passage of the Environmental Protection Act 1990, which led to provision for a special remediation regime for closed landfill sites, under Section 61. The section has not, in the event, been implemented, and the provisions of Clause 54 will replace it.

Amendment No. 227A, moved by the noble Lord, Lord Northbourne, is more limited in its intentions. It would remove explicitly from the definition of a closed landfill site any site in which waste was deposited entirely before the coming into force of the waste disposal licensing regime under Section 3 of the Control of Pollution Act 1974.

The Government do not support the amendment. Our intention was that those older sites should be included within the definition of closed landfill sites. We believe that that is implied by the reference to the deposit of controlled waste "without the authority" of a waste licence.

The Control of Pollution Act provided the first modern environmental regime for closed landfill sites. Prior to its introduction, those sites were regulated only through conditions set in planning approvals. As I explained a few moments ago, not all landfill sites will present problems. But, if anything, it is those older sites which pre-date the modern environmental regimes which are most likely to need the particular attention from the agency which the provisions set out for closed landfills provide.

Amendments No. 227ZA and 227B, tabled in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Beaumont of Whitley, seek to provide an alternative route through the question. They would remove the exhaustive definition of a closed landfill site that is currently provided, and replace it with a system by which a local authority would certify a site as being a closed landfill where it had been used for the deposit of waste.

This would appear to offer some simplification in comparison with the exhaustive definition currently in these provisions. But, in practice, I suspect that the effect of these amendments could be to add to the complexity of the procedures, as landowners might well wish to appeal against the certification of their sites as closed landfills, particularly in the light of the general concerns which exist about such sites being stigmatised even under the existing definition.

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The Government have a further particular concern with these amendments. As currently provided, only those closed landfill sites which are also contaminated land come within the scope of these powers. This important qualification is omitted in the proposed certification procedure. The Government see no justification for local authorities being required to identify and certify closed landfill sites which are not presenting any environmental problems.

Amendment No. 237, in the name of my noble friend Lord Lucas of Chilworth, and Amendment No. 237ZA, in the name of the noble Baroness, Lady Hilton, would extend the duty on local authorities to prepare remediation statements. As currently provided, this applies only to closed landfill sites and not to contaminated land generally. This restriction was deliberate. The intention behind the introduction of this distinct phase was to provide a public statement of the overall approach the enforcing authority intended to take for individual sites.

A remediation statement would not of itself require any specific action of anyone else. This would still be achieved through a remediation notice. We felt that this extra public stage was needed for closed landfill sites but not other sites, to reflect the greater likelihood that these sites would require more by way of long term remedial action and continued monitoring by the enforcing authority. This might particularly be the case where the site was generating landfill gas. Although public statements by the enforcing authorities about the remediation on individual sites might be helpful at some other sites as well, the Government do not believe that the preparation of such documents should be a statutory requirement in those cases. I therefore could not accept either of these amendments. I hope I have gone some way to explain the Government's position on these amendments and would ask noble Lords to withdraw their amendments.

9.45 p.m.

Lord Lucas of Chilworth: Of course I shall withdraw the amendment, because there is nothing else I can do tonight. But I shall come back again to it another day. I hope my noble friend will accept what I have to say in the spirit in which I say it, and bearing in mind our very long and friendly relationship. I find his answer totally ineffective. I view that answer as a series of excuses, born mainly out of the failure of the Government to implement the provisions of the 1990 Act.

My noble friend said that during the passage of that Act much concern was expressed by Parliament over landfill and it was therefore decided to make special provisions. If memory serves me right—and it may not—I think it is Section 60 of the 1990 Act which provides for that concern to be remedied. But that provision—I may be wrong on the number—has not in fact been enacted. That is why we have today a cobbling together of a number of provisions—HMIP, and those provisions relating to landfill, which together make certain aspects of this clause somewhat heavy going and which are not in fact dealing with the real problem. My noble friend said, as regards landfill in particular, that

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the extent of contamination is deeper than in other kinds of contaminated land and the engineering problems are more difficult and we therefore need a tailored approach. Much has happened since 1989 in terms of engineering of landfill sites. There is no great problem there.

My noble friend said that there has been stigmatisation of land which is a closed landfill site. I cannot think of any greater stigma than contaminated land, whether an old gas station—such as the one which seems to have reached the headlines in the press recently—or anything else. There is far more danger in old oil sites, old chemical sites and old gas sites than there is in the controlled environment of a closed landfill site.

I do not find my noble friend's answer reassuring or comforting. I shall return to the matter on another occasion. However, as I suggested at the beginning of my response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 227ZA to 227B not moved.]


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