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Lord Northbourne: Yes, my Lords, I will do so. I can foresee considerable difficulties in deciding who will pay and also enormous legal costs being involved. I accept what the Minister said. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 145E:


Page 51, leave out lines 34 to 48.

The noble Earl said: My Lords, my noble friend spoke to the above amendment when dealing with Amendment No. 128C. I beg to move.

On Question, amendment agreed to.

Viscount Ullswater moved Amendment No. 146:


Page 52, line 1, leave out ("appears to have") and insert ("has").

The noble Viscount said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 147, 148, 149 and 150. The effect of these technical amendments is to make sure that the basic test of liability for a polluter—someone who has caused or knowingly permitted contaminants to be present—is the same in new Section 78F as it is elsewhere in this part of the Bill. The question should be one of fact, and not of appearance. Following an amendment moved in Committee by the noble Lord, Lord Northbourne, I undertook to bring forward the amendments. I am happy to be able to do so now. I beg to move.

On Question, amendment agreed to.

Viscount Ullswater moved Amendments Nos. 147 to 150:


Page 52, line 16, leave out ("appears not to have") and insert ("has not").
Page 52, line 23, leave out ("harm, or") and insert ("significant harm is being caused, or there is a significant possibility of such harm being caused, or that").
Page 52, line 28, leave out ("appears not to have") and insert ("has not").
Page 52, line 36, leave out ("harm, or") and insert ("significant harm is being caused, or there is a significant possibility of such harm being caused, or that").
Page 52, line 40, leave out ("appears to have") and insert ("has").
Page 53, line 3, leave out ("it appears that").

On Question, amendments agreed to.

[Amendment No. 150A not moved.]

Lord Elis-Thomas moved Amendment No. 151:


Page 53, line 14, at beginning insert:
("Any aggrieved person, or").

7 Mar 1995 : Column 216

The noble Lord said: My Lords, this group of amendments also relates to the transference from the traditional statutory nuisance regime into the new regime proposed in the Bill. The amendments concern particularly the rights of citizens to achieve an abatement of a nuisance by applying to the magistrates' court to ask for that nuisance to be abated. Of course, that right is abolished by the Bill in that contaminated land is taken out of the statutory nuisance regime, as we have already debated, and is not to be replaced by a similar right for citizens in the new system proposed under the Bill.

The intention of Amendment No. 151 is to provide an equivalent citizens' right within the new clean-up regime. In my view, it would mean that the UK Government would in fact honour commitments in Principle 10 of the Rio Declaration. Amendments Nos. 157 and 158 similarly give an "aggrieved person" the ability to complain to a magistrates' court to require an enforcing authority to act to clean up land in accordance with a remediation notice where the person upon whom it was served has been convicted for not complying with it. Again, in that case, the transference from the previous legislative structure to the present one means that there will be no circumstance in which a local authority can be required to clean up contaminated land. It is my view that there should continue to be a local authority public sector involvement in this activity.

Under the present structure, if an aggrieved citizen applies to the magistrates' court for the abatement of a statutory nuisance from contaminated land the magistrates may order the local authority to abate the nuisance if a person against whom an order was originally made is convicted of failing to comply with a clean-up order. The intention of the amendments is to restore that right.

I believe that as we move into a new structure of environmental protection and of reduction of pollution it is important that we should not destroy existing rights which have worked well, but should increase the rights of citizens to take action to protect the environment. I beg to move.

Viscount Ullswater: My Lords, Amendment No. 151 moved by the noble Lord, Lord Elis-Thomas, would permit an aggrieved person to appeal against a remediation notice served on someone else. The intention is to allow the aggrieved person to ask the court to substitute alternative, possibly more stringent, remediation requirements than were contained in the original notice.

Not only would that be a totally novel approach to appeals; it would also, in our opinion, be entirely unjustified. The proper route by which individuals and companies can seek remedies for harm or nuisance caused to them by other individuals is through private actions at common law.

Enforcing authorities will have regard to statutory guidance in deciding what steps by way of remediation they are to require in any individual case. This will address the task of preventing the occurrence of the harm or water pollution which led to the land being identified as contaminated land, and it will do so in a

7 Mar 1995 : Column 217

technically robust way. There should therefore be nothing for the supposedly aggrieved person to be worried about, unless he wished to attempt to substitute his judgment of the remediation standards required on the site, replacing the requirements developed by the professional staff in the enforcing authority and the technical approach set out in the statutory guidance. In the unlikely case where an enforcing authority acted unreasonably or ultra vires, an aggrieved person would have the usual remedy of seeking judicial review of the decision taken.

Amendments Nos. 157 and 158 are somewhat different, in that, as the noble Lord indicated, there is a precedent contained in the statutory nuisance provisions in Part III of the Environmental Protection Act 1990 for an aggrieved person having the right to ask a court to order a local authority to act to abate a nuisance. The amendments seek to produce an equivalent effect in these contaminated land powers.

However, despite the apparent precedent in other legislation, the Government do not believe that it would be justified to follow it now. It may be instructive to note that the Department of the Environment is unaware of any cases where this supposed right of individual action has been used to deal with contaminated land.

The Government's intention in bringing forward these provisions and in developing the statutory guidance which will support it is to set up a modern, structured regulatory regime run by technically competent public authorities. This will enable the environmental priorities to be addressed in a systematic and ordered way. Much of this will take place in the way in which local authorities go about inspecting their areas to identify contaminated land, concentrating on the more vulnerable areas. But there will also be a need to allocate resources in terms of money and key staff in a structured way to deal with those sites where the appropriate person is either unwilling or unable to pay for the costs of remediation himself. Allowing what would essentially be freelance regulators to step in to the process and overturn those priorities would serve only to divert the available resources away from the more urgent and serious cases.

With that explanation I ask the noble Lord not to press his amendment.

Lord Elis-Thomas: My Lords, I am grateful to the noble Viscount for his detailed response. I can assure him that it was not the intention of the amendments to set up freelance regulators. On the basis that he intends to set up a modern, structured, regulatory regime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 151A to 154 not moved.]

Lord Williams of Elvel moved Amendment No. 155:


Page 54, line 26, leave out first ("of") and insert ("not exceeding").

The noble Lord said: My Lords, in moving the amendment, it may be for the convenience of the House if I speak to Amendment No. 156. Both amendments are designed to give the judiciary some opportunity to

7 Mar 1995 : Column 218

modify the daily fine. In the Bill as drafted, the daily fine is mandatory. In the light of the difficulties that we have encountered in previous debates on remediation notices, it would seem that the judge should be given some opportunity to modify the fine if he deemed it appropriate. I beg to move.

Viscount Ullswater: My Lords, Amendment No. 155, moved by the noble Lord, and Amendment No. 156 to which he spoke, seek to introduce flexibility into the level of fine applicable for each day on which non-compliance with a remediation notice continues after conviction for the offence. That would depart from similar provisions in Section 80(5) of the Environmental Protection Act 1990 and to maintain consistency we would need to move consequential amendments to a very large number of similar provisions. We would not wish to do that without very good reason. Having said that, I take note of what the noble Lord said. However, I ask him to withdraw the amendment.


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