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Lord Williams of Elvel: My Lords, I hear what the noble Viscount says: "It is here because it is here because it is here, because it is in other enactments and we do not wish to change those other enactments". I am not sure that it would not be wise to consider all the other enactments. The position seems slightly absurd. However, I see that we shall not get far. However, I hope that the noble Viscount will consider the issue, and perhaps when the Bill reaches another place, it might consider the matter seriously. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 156 to 158 not moved.]

Lord Northbourne moved Amendment No. 158A:


Page 55, line 12, at end insert ("and whether having regard to all the circumstances it is reasonable to recover the costs from the person.").

The noble Lord said: My Lords, in moving Amendment No. 158A, I also speak to Amendment No. 158B. Although they are on slightly different points, the amendments are intended to be helpful suggestions of ways in which the Minister might be able to help a little on the question of liabilities of landowners.

Amendment No. 158A applies the test of reasonableness regarding whether a local authority which undertook work because it was not undertaken by the person on whom the notice was served should then seek to recover the cost. I hope that the noble Viscount will be able either to accept the amendment or to give me an assurance that the test of reasonableness is already implicit in the wording of the Bill.

Amendment No. 158B is an important suggestion. There is a very real danger that the cost of remediation in cases of contamination will impose liabilities upon the person responsible far in excess of the value of the land. That may be appropriate where that person has recklessly allowed pollution to take place. However, let us take the example of someone who inherits a piece of land. Let us consider the classic widow or orphan who has a reasonable competence and a reasonable level of income. Auntie Joanna leaves her a piece of property which subsequently turns out to be contaminated. That

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person might suddenly find herself wiped out, liable for millions of pounds of rehabilitation. She might have her whole assets removed, and be left destitute.

That clearly is not the intention of the Act. I believe that such a situation should be provided for. If we are talking about the innocent landowner, it seems reasonable that the amount of liability for remediation should be limited at least to the amount that he or she can recover from the sale of the land after remediation has been carried out and the liability should not impinge on such other assets as he or she has. I beg to move.

The Earl of Lytton: My Lords, I support the amendment, and perhaps I may add a little to the example of the widow or orphan. How would the Minister see the situation if, on inspection, the legacy were found to be contaminated land and the prospective beneficiary repudiated the legacy? What would happen then? Would the executor be responsible? What is the extent of the executor's liability? Is it the extent of the assets or how is it measured? That important point should be covered, otherwise the situation becomes like the National Lottery in reverse: the first prize for getting all the numbers in a row is complete financial ruin. I do not believe that it should be allowed.

9.30 p.m.

Viscount Ullswater: My Lords, both these amendments would change the provisions relating to the recovery of costs by an enforcing authority where it has acted on the default of the recipient of a remediation notice. Amendment No. 158A would require an enforcing authority to have regard to whether, in the circumstances, it was "reasonable" to seek to recover its costs.

It is not at all clear on the face of the amendment in what circumstances it might be held to be unreasonable to recover costs, except where questions of hardship were involved. That would potentially leave the question open to considerable doubt and legal argument on individual cases. This would itself be undesirable, but it might also open up the opportunity for the legitimate recipients of remediation notices to attempt to argue that they should not really have been held responsible and should not have received the notice. The Government could not accept the creation of such a back-door attempt to undermine the basic liability regime set out in these provisions.

I would point out that, in any case, the power to recover costs given to enforcing authorities is discretionary, and the Government would expect them to act reasonably in this respect, within the wider sense of the term. I would also point out that in preparing a remediation notice in the first place the enforcing authority can only specify things which are reasonable, having regard to the cost which is likely to be involved and the pollution in question.

Amendment No. 158B would seek to limit, to the value of the remediated land, the potential liability of any owner or occupier who was deemed to be the appropriate person to receive a remediation notice on account of his ownership or occupation. While

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calculations of that kind might be relevant in cases of potential hardship among home owners, they would not necessarily be appropriate in all cases.

The first effect of a provision of this kind would be to give such persons a potentially major incentive not to comply with the original remediation notice, because their exposure to any recovery of costs incurred by the enforcing authority would be limited. That would be perverse.

The second effect of the amendment would be to shield owners from the potentially negative net value of heavily contaminated land. The Government do not believe that this could be justified as a general principle. Even without having to meet the costs of regulatory requirements, owners in those circumstances would not be able to sell their land, as any purchaser would have to pay the costs of the necessary remedial action before he could seek to redevelop the site, for example. That could create another perverse incentive for owners to seek to be served with remediation notices, so that they could benefit from the limited liabilities they would then face. They would simply fail to comply with the notice and the public purse would then effectively bear the balance of the cost of any works in excess of the value of the site. The Government do not believe that the amendments would provide workable formulae for the recovery of costs, and would not wish to accept them.

To address the point put to me by the noble Earl, Lord Lytton, if a beneficiary repudiates a legacy, then I believe the legacy would pass to the next beneficiary named in the will, and maybe eventually to a residual beneficiary. But we are taking matters quite far in this context. Having explained where the Government stand on these amendments, I hope that the noble Lord will withdraw them.

Lord Northbourne: My Lords, the noble Viscount has rejected my efforts to produce some helpful suggestions. I am afraid that I have to accept that the problem is the injustice of the basic liability regime to which he referred; and I am afraid it is on that issue that we shall have to continue to attack. The injustice to the innocent landowner is, in my estimation, monstrous. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 158B not moved.]

Lord Williams of Elvel moved Amendment No. 159:


Page 56, line 29, at end insert:
("( ) An enforcing authority shall, for the purpose of enforcing in Scotland a charge under this section, have all the same powers and remedies under the Conveyancing and Feudal Reform (Scotland) Act 1970 as if it were a heritable creditor in possession.").

The noble Lord said: My Lords, in moving this amendment, it may be for the convenience of the House if I also speak to Amendment No. 160.

This amendment was suggested to us by the Law Society of Scotland. It would allow a local authority to create a charging order in order to obtain a security to recover costs incurred by the authority in carrying out the requirements of the remediation notice. It is clear to us that charging powers for Scottish local authorities require to be on all fours with their English counterparts. The amendment achieves this aim by enabling Scottish

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authorities to create a security for the purposes of recovering those expenses. I hope very much that the Government will see the merit of this argument. I beg to move.

The Earl of Lindsay: My Lords, at present the Bill makes provision in new Section 78J for a local authority in England and Wales to serve a charging notice on any person who fails to comply with any of the requirements of a remediation notice, and where the authority has incurred expenditure in carrying out work which that person should have done. Amendments Nos. 159 and 160, moved by the noble Lord, Lord Williams, would seek to introduce a similar system in Scotland.

I understand that the existing conveyancing practices in Scotland do not include the use of charging notices of this kind, and that the introduction of such a system would require fundamental changes to be made to the conveyancing system. I see no advantage in pursuing such changes and believe that the existing mechanisms under Scots law for recovering sums due are indeed adequate. I am therefore content that the Scottish local authorities should seek recovery through the courts of expenditure incurred under this section. I hope that, with that explanation, the noble Lord will withdraw his amendment.


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