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Viscount Ullswater: My Lords, I have to say, obviously, with great difficulty. The noble Lord knows only too well of the difficulties of limited companies. This is a considerable issue and that is why we are studying it most carefully.

Lord Northbourne: My Lords, I am very disappointed by the Minister's reply. He did not address the fact that this Bill enlarges and extends the liability of landowners under common law and statute as it stands at present. We must be absolutely clear about the matter. By Third Reading I shall have chapter and verse about the way in which that is happening. I do not mind whether it is difficult to investigate the problem. The courts are doing so at the moment in respect of statute and common law. Why suddenly can they not do so in respect of this Bill? I understand that it is not true to say that this Bill does not significantly enlarge the liability of landowners. If that is what the House wishes, so be it. I believe that the House may well see the injustice of the proposals. I intend to return to the matter at a later stage, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 144L and 144M not moved.]

Lord Stanley of Alderley moved Amendment No. 145:


Page 51, line 20, at end insert:
("( ) Subsection (3) above shall not apply where compulsory powers existed to compel the owner or occupier to grant any interest in the land related to the activity or activities which gave rise to the contamination of the land, whether or not such powers were used.").

The noble Lord said: My Lords, it is inappropriate for the Government to impose a liability for contaminated land where compulsory powers exist. There is no provision to protect an owner from the consequences of a remediation notice where he has been obliged to grant rights on his land for coal extraction, a pipeline or other purposes because compulsory powers have been used or, more importantly, threatened. The existence of compulsory powers is an under-rated weapon in the hands of the acquirer. Their mere existence is sufficient to secure rights by the Government with what they believe is agreement but it is not really agreement.

It is surely wrong that a person should be put at risk to the extent that he is liable for all the costs of remediation if the acquiring company or body no longer exists or cannot be found. That is more probable now, given the activities of the private sector companies with the benefit of compulsory powers. Moreover, what happens if the company which is responsible has gone bust?

I was fascinated by my noble friend's remarks in regard to those problems on the last amendments, as was, I gather, the noble Lord, Lord Williams. I shall be interested to see how the Government intend to deal with that problem because it affects us all.

7 Mar 1995 : Column 213

I suppose that the problem revolves around compulsory rights orders. Somehow or other I feel that my noble friend would prefer not to discuss such orders. They received a rather rough reception in your Lordships' House. Perhaps he would prefer to accept the amendment in lieu. I beg to move.

Viscount Ullswater: My Lords, Amendment No. 145 seeks to exempt owners where land has been contaminated as a result of activities for which compulsory powers existed to compel owners or occupiers to grant interests in their land.

Essentially, we are considering here the issue of compulsory rights orders, as my noble friend indicated. Your Lordships debated the subject at some length in the last Session when considering the Coal Industry Bill. The anxiety underlying the amendment is that landowners may find themselves facing liabilities for contamination caused by activities which they never wanted on their land and which took place only as a result of the exercise of compulsory powers. While I understand that anxiety, I do not feel that it is justified nor that an exemption from liability is needed or warranted. In particular, I do not believe that an exemption would be justified merely on the ground that compulsory powers existed, regardless of whether or not they had been used in an individual case.

The existing procedures for the granting of CROs already provide two particular safeguards for the position of landowners and occupiers. First, the planning authority will require appropriate restoration and aftercare as conditions of its planning consent. Those will be enforced by the planning authority in the normal way. Secondly, compensation arrangements include provision for the landowner to recover his reasonable expenses for any works necessary to bring the land back to its previous condition.

Taken together, those measures should ensure that any liabilities in respect of contaminated land which might result would fall to the operator and not to the landowner. The requirement on the planning authorities and relevant licensing authorities to satisfy themselves as to the financial capacity of the licence applicants to meet the restoration conditions should provide further safeguards. Having given my noble friend that reassurance, I hope that he will withdraw the amendment.

Lord Stanley of Alderley: My Lords, I will withdraw it, but we return to the same question, and I see that the noble Lord, Lord Williams, is smiling. What happens if the operator has gone walkabout or bust and is no longer there? In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 145A:


Page 51, line 33, at end insert ("in accordance with section 78R below").

The noble Earl said: My Lords, my noble friend spoke to this amendment when he moved Amendment No. 128C. I beg to move.

7 Mar 1995 : Column 214

On Question, amendment agreed to.

[Amendments Nos. 145B and 145C not moved.]

Lord Northbourne moved Amendment No. 145D:


Page 51, line 33, at end insert:
("( ) In the case referred to in paragraph (a) of subsection (4) above, the guidance shall include provision to ensure that liability is shared between the persons in proportion to their responsibility for the contamination.").

The noble Lord said: My Lords, the noble Lord, Lord Peyton of Yeovil, has asked me to speak also to his amendment, as mine is roughly the same as his amendment. The object is to avoid an extremely unfortunate situation which will undoubtedly arise if such an amendment is not accepted; namely, that there will be a cat fight between the various parties responsible for pollution.

In discussing an earlier amendment I asked the noble Viscount which body the local authority will go for as a matter of choice from among a selection of potential polluters. If the answer is that the local authority can go for whichever it likes, and then that body has to take all the others involved through the courts to achieve an equitable solution, it will be nothing but a feast for the lawyers. It seems to me that the responsibility should be with the local authority to allocate responsibility for pollution in proportion to the contribution which was made to the pollution by each of the polluters. I beg to move.

The Earl of Lytton: My Lords, I should like to speak briefly in support of the amendment. It seems to me that equity demands that there should be a proper apportionment and that we should not follow what is commonly described as the American pattern under the "superfund" where vast sums of money seem to have been spent in pursuing various people who, in turn, then pursue others. The purpose of the Bill is surely to ensure that maximum resources are applied to cleaning up the environment for the benefit of the present and future generations. I believe that the amendment merits careful consideration.

9.15 p.m.

Viscount Ullswater: My Lords, Amendment No. 145C and, for that matter, Amendment No. 145D moved by the noble Lord, Lord Northbourne, both seek to insert onto the face of the Bill the requirement that, where two or more persons have caused or knowingly permitted contamination to occur, liability for remediation should be apportioned between them in accordance with their share of responsibility for the contamination.

As I stated in our debate at Committee stage, that principle is fine in so far as it goes. In the situation where different persons have separately contributed to the creation of an overall problem with contamination, it is entirely the right principle to follow. The Government would wish to reject totally any suggestion that liability in those circumstances should be joint and several. However, that principle cannot properly address the question of how to allocate responsibility where different people have had effective control over the same contamination, and its possible effects, in sequence. One person may have "caused" the substances

7 Mar 1995 : Column 215

to be present, but another person, in "knowingly permitting" them to remain, may have brought about the circumstances under which they came to result in significant harm. In such cases, it may be entirely appropriate for the whole responsibility for remediation to rest on the person with the most recent involvement with the contamination.

However, the amendments before us would not allow a judgment of that kind to be made. On that basis, I would not wish to accept them. Therefore, I would ask the noble Lord to withdraw his amendment.


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