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Lord Stanley of Alderley moved Amendment No. 143:


Page 50, line 12, at end insert:
("( ) In any case where it appears to the local or enforcing authority that land has become contaminated by reason of the deposit of controlled waste in contravention of section 33(1) and that the owner or occupier of the land neither deposited nor knowingly caused nor knowingly permitted its deposit, the authority shall not serve a remediation notice upon the owner or occupier of that land.").

The noble Lord said: My Lords, I shall speak also to Amendment No. 143A. I note that Amendment No. 145 is grouped with this amendment, but I prefer to speak to it separately.

In Committee, I raised the irritating problem of fly-tipping. Having read Hansard of 31st January (cols. 1426 to 1429), I am far from happy. The purpose of the amendment is twofold. The first is to discourage the totally irresponsible practice of fly-tipping. The second is to protect the innocent occupier from prosecution. If your Lordships accept the amendment, it will achieve those two objectives in the following way. When contaminated waste is fly-tipped on land the local authority may serve a remediation notice on the owner or occupier of that land. If the occupier did not give permission for that waste to be tipped on his land, it will be up to him to prove that. That is spelt out in the second paragraph of my amendment. It will then be up to the

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local authority to use its best endeavours to try to find the fly-tipper. It may then serve a remediation notice on that person.

Nowadays, with the help of forensic science, it is much easier to discover where the contaminated waste originated. Moreover, fly-tippers usually use nearby sites. If your Lordships suggest that I am trying to allow an occupier to opt out of his responsibilities, I say that I am not. My amendment puts more responsibility on him than Section 59 of the Environmental Protection Act 1990. However, having listened to my noble friend's reply to my question about nitrate sensitive zones—he said that the Government's intention is not to increase existing liabilities under the Bill—I am tempted to take out that extra liability.

The problem of fly-tipping is likely to increase because of the landfill tax. That is all the more reason why the innocent bystander or occupier should be protected. As the Bill stands, he is not protected. Therefore, I ask my noble friend to accept the amendment or to tell your Lordships why the Government believe that the innocent should be made liable. I beg to move.

Lord Gisborough: My Lords, I support the amendment. I live in an area near which there is a great deal of industry. Fly-tipping is continually done on my land. On no occasion could I possibly prove that I had not permitted it. I caught one person tipping a lot of stuff and I told him that he must come with me to the police station. He was a policeman. Therefore, I made him pick up twice as much as he had tipped and left it at that. But I could not possibly have proved to anyone else that I had not given him permission to do that in the first place.

It is totally unfair that somebody should have to tolerate fly-tipping on his land and then must also meet the cost of removing it. Moreover, he perhaps runs the risk of being prosecuted.

Lord Renton: My Lords, I too support the amendment. We should not lose sight of the fact that Clause 54 contains 14 pages of new legislation to be added to the Environmental Protection Act 1990. The climax of those 14 pages is to be found at page 54, where we find that failure to comply with one of those notices is a crime which attracts enormous penalties—£20,000 on summary conviction. In accordance with our normal standards of British justice, we owe it to owners and occupiers not to place them in a position in which, through no fault of their own, their land is contaminated without their knowledge.

Even if a person has only a few acres, it may take him some time to discover that, for example, drums of poisonous material which may contaminate his land have been dumped on it. He would not know who dumped them there. If somebody owns a large estate in a remote part of the country where contamination has taken place in an obscure way—perhaps in a thicket at the side of the road—it may take him several weeks to find out.

We should not place the owners in an unfair position. I hope that your Lordships will not think it ridiculous if I say that that is analogous to the case of somebody

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being in possession of stolen goods and not knowing that they were stolen. The fact that he is in possession of stolen goods enables the prosecuting authority—the police—to find out why he had them. He merely has to prove that he did not know that those goods were stolen. He does not have to go further and say that he knows who stole them or anything like that.

Here, we have the position of somebody whose land has been contaminated, which is a criminal offence. Although the liability will not arise until a contamination notice has been served and there has been failure to comply with it, nevertheless, that potential criminal liability exists. We must ensure that justice is done.

Baroness Nicol: My Lords, I support the intention behind Amendment No. 143A in particular. It seems fair that the owner of land on which fly-tipping has occurred should have a defence where he can prove that the offence was committed without his knowledge. I take on board the point made by the noble Lord, Lord Gisborough, but we must guard against the fact that there may be landowners who would allow the tipping to take place and then say that they had not allowed it. Therefore, I am afraid that the burden of proof must be on the landowner.

The power would remain for the local authority to serve a remediation notice when the landowner's defence could not be substantiated. This amendment may help to avoid injustice without impairing the power of the local authority to deal with real offenders. I hope that the Government will find that acceptable.

The Earl of Lytton: My Lords, I warmly support the amendment. Like other noble Lords, on occasions I suffer from the attentions of fly-tippers so I have had first-hand experience of dealing with the stuff, including clearing it with my own fork and bucket.

There is a problem in that as the Bill stands, it clearly goes significantly further than the Environmental Protection Act 1990. On previous occasions the Minister has said that it is not the Government's intention to extend further liabilities. However, I believe that the Bill does exactly that. That is the first point.

The second point relates to what may be described as the wider moral issue. I accept entirely that we want to get at polluters. The polluter pays principle is at the heart of that. But it is not acceptable to have as a line of default that somebody who is not the polluter pays. Never mind whether the polluter should not pay twice but should pay once. It is not good enough for an innocent party to be paying at all. Therefore, I have considerable reservations about the onus of proof being placed on somebody who is ostensibly an innocent party. That onus of proof involves cost and risk, and the outcome is uncertain. For what? It is because some not very public-spirited person has taken the easy way out on his way home or on his way to his place of work and has decided to unload his van with that stuff in the back. I have no doubt that he has been paid something for his time and trouble.

It seems to me that there is a clear imperative to catch those people. I accept that the person who is most likely to have the resources and the local information may well

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be the owner or occupier of the land. But that cannot always be the case. Therefore, to make a general rule along those lines must be regarded as offensive to common sense. I support Amendment No. 143A but I enter that caveat.

Lord Jenkin of Roding: My Lords, my noble friend's amendment contains the phrase "knowingly permitted". The House will remember that in Committee I raised the anxieties which are felt in some quarters in relation to what that actually means.

My noble friend said quite correctly, as I expected him to do, that there is no evidence that the case law in relation to the phrase "knowingly permitted", which is taken from previous environmental legislation, such as the Water Resources Act 1991 and the Environment Protection Act 1990, has led to the kind of interpretation which my noble friend sought to put on it. The House will remember that it was suggested that an interpretation of the words may be that one needed to know that it was there and that, therefore, one had knowingly permitted it.

There are still some commentators who have said that the words can bear that interpretation and that it may be only a matter of time before a judge decides that that is what they mean. I understand my noble friend's reluctance to deal with the matter on the face of the Bill. However, perhaps he will deal with the matter by making it clear in the guidance to the agency and to local authorities which he intends to publish, that the words "knowingly permitted" imply a degree of mens rea; namely, that the person has to know that something has been done and has acquiesced to it —for example, fly-tipping or depositing scheduled goods on the land. Given the state of the law, it is possible that it is neither necessary nor easy to put such a phrase into the Bill. However, there are still anxieties in that respect. I hope that my noble friend the Minister will be able to go some way towards relieving them.

7 p.m.

Lord Peyton of Yeovil: My Lords, I should just like to add my voice to the general plea and say that I should really be rather shocked if my noble friend the Minister found himself unable to help. I do not believe that that august building at No. 2 Marsham Street has ever been the subject of fly-tipping. Therefore, the collegiate experience of those within it as regards the nuisance of fly-tipping is probably rather limited. If my noble friend is unable to assist in the matter, I must say that I should be most tempted, one convenient evening, to assemble a suitable load of garbage and tip it on the steps of that awful building.


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