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Baroness Hamwee: I believe that the Minister referred to Amendment No. 399D which I understand has been withdrawn from the Marshalled List.

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On Question, amendment agreed to.

Viscount Ullswater moved Amendments Nos. 353 to 356:

Page 185, leave out line 7.
Page 186, line 29, leave out ("41") and insert ("41(1)").
Page 188, line 46, leave out ("89") and insert (" 95").
Page 190, line 27, leave out ("89") and insert (" 95").

The noble Viscount said: Perhaps I should say to the noble Baroness that when we reach Amendment No. 399D of course I shall not move it. I spoke to these amendments when I moved Amendment No. 342A. I beg to move.

On Question, amendments agreed to.

Viscount Ullswater moved Amendments Nos. 357 and 358:

Page 191, line 15, leave out (" 2(2) (b)") and insert (" 2(2) (c)").
Page 192, line 15, leave out ("and "a river purification board"").

The noble Viscount said: I spoke to these amendments when I moved Amendment No. 352B. I beg to move.

On Question, amendments agreed to.

[Amendment No. 358ZA not moved.]

[Amendment No. 358A had been withdrawn from the Marshalled List.]

[Amendment No. 359 not moved.]

The Earl of Lytton moved Amendment No. 359A:

Page 201, line 10, at end insert:
("( ) In subsection (4) after the words "or do the thing and" there shall be added the words "subject to subsections (4A) to (4C) below".
( ) After subsection (4) there shall be inserted—
"(4A) No person shall be required to grant rights in relation to any land in accordance with subsection (4) above unless—
(a) the person whose consent is required—
(i) has been given notice of the application for a waste management licence and the full details of the proposed condition which will require the grant of the rights, and
(ii) has been given the opportunity to make objections and to have those objections heard by a person appointed on behalf of the waste regulation authority;
(b) the waste regulation authority is satisfied—
(i) that the holder of the licence gave details of the person whose consent is required in accordance with subsection (4B) (ii) below,
(ii) that there is no practical alternative to the imposition of the condition in a form which requires the grant of rights in the land,
(iii) that the applicant has sought to negotiate with the person whose consent is required and that person has been unreasonable, and
(iv) that it is reasonable in all the circumstances, taking full account of the objections made by the person whose consent is required, to impose the condition.
(4B) The waste regulation authority shall require the person who has applied for a licence—

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(a) to certify that there is no other person who has an interest in any land to which the proposed licence or any condition relates at the time the application is made and at anytime thereafter if additional land is to be affected by a proposed condition, or
(b) to specify the names and addresses of each person who has an interest in any relevant land and that he has served notice of the application or the proposed condition on each person in such form as may be prescribed.
(4C) Where a person is required to grant consent, the holder of the licence shall make a payment equal to the amount which would be paid for the grant of the necessary rights in the land after negotiation between a prudent and willing owner with power to grant the rights and a prudent and willing holder of the relevant licence having regard to the burdens and benefits and all other relevant matters.".").

The noble Earl said: I move this amendment for the noble Lord, Lord Stanley of Alderley, who is not able to be here this evening. He has asked me to move it on his behalf.

Section 35(4) of the Environmental Protection Act 1990 confers an absolute power on anyone with a waste management licence to carry out works to comply with the conditions of that licence on land that he does not own. In effect, that is a power to requisition the land of others for certain works despite the fact that there may be other land, possibly owned by the licence holder himself, which could equally well be used.

I quite accept that there may be occasions when it is necessary for a waste licence holder to take such action and that proper protection of the environment must come first in certain instances. It may mean that such protection comes before private interests. I accept that that is proper. But before such measures are put in place, it is right for the conditions stated in the amendment to be met.

The amendment proposes in subsection (4A) that notice must be given to the adjacent owner and an opportunity provided for that owner to make objections; secondly, it seeks to ensure that there is no practical alternative and that the adjacent owner has been unreasonable in his objections. Subsection (4B) provides that the applicant for a licence must make sure that all those other owners of land which may be affected have been informed. Subsection (4C) provides that where a person is forced to grant consent, compensational considerations should be negotiated on the basis of what is reasonable between a prudent and willing owner of land and a prudent and willing licence holder.

I accept that there are in existence guidance notes which follow along the lines of the amendment. Therefore, it may well be that the Minister will say that the amendment is not necessary. However, I must inform the Committee that that is not so, because at the end of the day it is what is set down in statute rather than what is contained in guidance notes which counts. While many councils have voluntarily and consistently applied the guidance notes, some councils —I am advised that Merseyside is a particular case—have taken the view that the statutory duty is to be interpreted strictly, notwithstanding the guidance notes, and that it is up to the adjacent owner to make representations in the context of a planning application. I believe that the

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planning situation is an entirely different process and, therefore, that the protection of adjacent owners is deficient. For example, the interests in their land may not be a material consideration for town and country planning purposes.

The Association of County Councils has indicated its support for an amendment along the lines that I have suggested, although perhaps not necessarily in the precise wording. Moreover, the Country Landowners' Association is also most concerned that a safeguard of the sort proposed in my amendment should be included. I should remind Members of the Committee that adjacent owners may not be owners of large estates; indeed, they may be householders, small farmers and people whose interests are vulnerable and who do not have the resources to protect their interests in the way that might be imagined.

Therefore, it is important that the amendment or a provision along similar lines should be put on the face of the Bill, unless and until every authority complies as a matter of course with the guidance notes or the terms within them become mandatory. I beg to move.

9.15 p.m.

Viscount Ullswater: I know that there are concerns about the implications of Section 35(4) of the Environmental Protection Act 1990 for owners of land adjacent to licensed waste facilities. However, we have received no evidence that it has in practice caused any difficulties. In the light of the clear guidance that we have given, I do not believe that there is any reason why it should cause any difficulty.

Section 35(4) is not a wholly new provision. It re-enacts, with modifications, Section 6(2) of the Control of Pollution Act 1974, which has been in force for more than 18 years. The original provision enabled licence conditions to require works to be carried out—for instance on adjacent land—even though the licensee had no right to carry out those works. It was expected that the licensee would negotiate those rights if he wished to continue depositing waste. If he could not, then he was able to surrender his licence and cease all operations.

The 1990 Act modified that provision so as to give the licensee such rights in relation to any land as would enable him to comply with the requirements of his licence. That was necessary because it was no longer possible to surrender a waste management licence without obtaining a certificate of completion under Section 39 of the 1990 Act, with the consequence that licence holders are required to continue monitoring landfill sites for many years after the disposal of waste has ceased.

Under the 1990 Act, waste regulation authorities must satisfy themselves that landfill sites will not cause environmental pollution or harm to human health before they can accept the surrender of a site licence. That rightly ensures that licence holders cannot walk away from their responsibilities. However, it also means they have to be put in a position to carry out their responsibilities in cases where, for example, their lease has expired or access to adjoining land is required to

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monitor the migration of landfill gases or polluting leachates. It is essential that holders of licences for landfill sites monitor those sites to detect changes and take corrective action before any pollution of the environment or harm to human health is caused. To do that, monitoring of groundwater and gas concentrations in soil adjacent to landfills may be necessary. Nevertheless, we have made it clear that Section 35(4) of the 1990 Act should be used only when strictly necessary.

I believe that the public interest in ensuring that landfill sites do not cause environmental pollution or harm to human health strongly supports the retention of the existing provisions of Section 35(4) of the 1990 Act. In the light of the assurances that I have given, I hope that the noble Earl will feel able to withdraw his amendment.

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