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Lord Jenkin of Roding: My Lords, we shall want to study very carefully what my noble friend has said. At first hearing I am left somewhat puzzled over reconciling what he said about the position of lenders under this legislation with what he said at Committee about not wanting to regard lenders simply as having deep pockets who could be made to clean up the land, for the pollution of which they are in no sense responsible. It may be that we shall want to return to this matter, having taken advice on the short but complex argument which my noble friend has advanced. At the moment I remain unconvinced. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 130 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 131:


Page 47, line 46, after ("guardian") insert (", lessee, any person holding title in respect of land,").

The noble Lord said: My Lords, without in any way desiring to reflect on the statement made by the noble Lord, Lord Jenkin of Roding, on his amendment covering the Scottish position, which the Minister did not accept in the way which the noble Lord would have liked, my amendments, which have been put forward by legal people in Scotland, would extend the definition of "owner" to make it quite clear in the Scottish sense what that is. I am advised that the definition of "owner" should be expanded to include those holding title, the various types of lessee, including ground tenants, and should specifically exclude heritable creditors not in possession.

I confess that the law is difficult enough, but land law is even more complicated and more difficult as we have heard during the last two or three debates. I am reliably informed by people who are very knowledgeable about land matters in Scotland, that this amendment covers the point very adequately and, if true, rather elegantly. I beg to move.

The Earl of Lindsay: My Lords, Amendments Nos. 131 and 132 moved by the noble Lord, Lord Carmichael of Kelvingrove, seek to make changes to the Scottish definition of "owner", specifically to include lessees and to clarify the position on heritable creditors who are not in possession.

As my noble friend Lord Ullswater has already said, we have been considering the need for further changes to the definitions of "owner". In particular, we have

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been aware of the need to make sure that the definitions applying in England, Wales and Scotland are as nearly equivalent as possible, given the differences in land law between the two jurisdictions.

As part of the consideration of the position of mortgagees we undertook after the debate at Committee stage, we also addressed particular questions in respect of the Scottish definition of "owner". Following this, we will be bringing forward an amendment at Third Reading to clarify the position of heritable creditors who are not in possession, to bring it better into line with the definition which applies in England and Wales. On that basis, I invite the noble Lord to withdraw his amendment.

Lord Carmichael of Kelvingrove: My Lords, I should like to echo the proviso that was given by the noble Lord, Lord Jenkin of Roding, that we shall be able to decide whether the Government's amendment is appropriate when we see it. However, as the noble Earl's explanation has satisfied me that he has every intention of accepting the spirit of my provisions, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 132 to 133B not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 134:


Page 48, line 28, after second ("time") insert ("and in any event at no more than five yearly intervals").

The noble Lord said: My Lords, this is another short amendment. It seeks to ensure that local authorities are required to inspect their areas at least every five years for the purpose of identifying contaminated land. The provisions of what will be new Section 78B(1) (a) would allow a local authority to inspect its land on an unstructured basis. The amendment merely seeks to include an ultimate time limit of five years to ensure that an authority inspects its area regularly and locates any contaminated land. I beg to move.

Viscount Ullswater: My Lords, Amendment No. 134, which has been moved by the noble Lord, Lord Carmichael of Kelvingrove, seeks to change the basis of the inspection duty of local authorities to be at no more than five-yearly intervals rather than "from time to time", as is currently provided.

As I mentioned during the debate on a similar amendment in Committee, I firmly believe that a rigid approach to the timing of the duty to inspect for contaminated land would be inappropriate.

The wording as it stands will enable local authorities to discharge their duty of inspection in a sensible way and carry out more frequent inspections of sites where this is needed to monitor the potential harm or water pollution which might arise. If a site is causing particular concern, the inspections are likely to be at intervals of much less than five years. However, to require a local authority to carry out quinquennial inspections of its whole area would place an unnecessary burden on its financial resources particularly. Authorities should concentrate their resources on those areas where they believe that new problems may have arisen.

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The operation of the inspection duty will obviously be central to the success of local authorities in using these powers to deal with the legacy of past contamination in an orderly and prioritised manner. This lies behind my amendment, Amendment No. 135A, which provides for specific guidance to be issued by the Secretary of State on the manner in which local authorities will carry out this duty. As part of the overall set of guidance documents relating to the definition of contaminated land and the process of its identification, this guidance on the inspection duty will receive parliamentary scrutiny through the negative resolution procedure. On that basis, I hope that I can persuade the noble Lord that his amendment is not necessary, and that he will therefore withdraw it.

Lord Carmichael of Kelvingrove: My Lords, the Minister has tried to convince me that the land will be inspected as required, but I did not quite follow him when he said that examining the land at five-yearly intervals would involve the local authority in a great deal more expense when the land might not require such inspections. I should have thought that there might be some form of rolling inspection of the land. Different categories of land might not need to be inspected except at five-yearly intervals, while other categories might need to be inspected much more frequently, particularly if a crisis arose.

Therefore, although I do not find the Minister's answer convincing, if he will allow me to read it carefully and to have it examined by those who are advising us on this matter, I shall beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 134A and 135 not moved.]

Viscount Ullswater moved Amendment No. 135A:


Page 48, line 32, at end insert:
("(1A) In performing its functions under subsection (1) above a local authority shall act in accordance with any guidance issued for the purpose by the Secretary of State in accordance with section 78R below.").

The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 128C. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 136 to 138 not moved.]

6.15 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 139:


Page 49, line 14, after ("any") insert ("written").

The noble Lord said: My Lords, the Minister said that the Secretary of State will be issuing instructions. My question is: will they be in writing? It seems as though they should be in writing but I should be grateful if the Minister could clarify that, having had an opportunity to examine both the amendments and the guidance. I hope that that will be the case. I beg to move.

Viscount Ullswater: My Lords, Amendment No. 139 would require that the guidance from the Secretary of State on the criteria describing special sites should be in writing. That is, in any case, the effect of my

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amendment which I discussed earlier when considering the overall definition of "contaminated land". All guidance from the Secretary of State is published. With that explanation, I hope that the noble Lord will withdraw his amendment.

Lord Carmichael of Kelvingrove: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Ullswater moved Amendment No. 140:


Page 49, line 23, leave out ("and").

The noble Viscount said: My Lords, in moving Amendment No. 140, I should like to speak also to Amendments Nos. 141, 144 and 276.

Amendments Nos. 140 and 141 provide for the Secretary of State to notify the occupier of any land which he has designated as a "special site". That appears entirely reasonable, as in some circumstances the designation could affect his interests, even if only to the extent of who might be seeking access to the site for the purposes of securing its remediation.

Amendment No. 144 removes the potential overlap between the agency's general cost-benefit duties and the provision stating that any remediation requirements must be reasonable in the light of the costs and the seriousness of the harm or the water pollution involved. It is an unnecessary duplication and an incorrect reference in the light of the fact that Clause 37 relates to the exercise by the agency of its powers and Section 78D relates to a duty. I should like to assure the House that the amendment leaves in place the requirement that an enforcing authority must have regard to the costs of what is required and the seriousness of the harm or pollution of controlled waters when specifying steps to be taken in a remediation notice.

Amendment No. 276 is consequential to the amendment moved by the noble Baroness, Lady Hamwee, and accepted by the Government at Committee stage, introducing the requirement for an affirmative resolution for any order to increase fines for non-compliance with remediation notices. It would prevent any such order having to pass through both the negative and affirmative resolution procedures. I beg to move.

On Question, amendment agreed to.


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