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Viscount Ullswater: My Lords, Amendment No. 164, moved by the noble Baroness, Lady Hilton of Eggardon, would give a local authority power to vest contaminated land in itself where there was no person upon whom a remediation notice could be served. Although the total number of sites where that circumstance would occur is probably very small, the Government accept that without some available procedure a local authority will otherwise be unable to exercise its duties to secure the remediation of those sites. However, land may be acquired compulsorily by local authorities for many different purposes under a range of powers. If there is no specific compulsory purchase power, local authorities may also acquire land compulsorily under Section 121 of the Local

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Government Act 1972 for the purposes of many of their statutory functions which involve the holding or provision of land.

When an authority has been authorised to use compulsory purchase powers but the owners are unknown or untraceable, the authority may serve the relevant statutory notices by leaving them at the site. It may also pay compensation into court and vest land in itself by executing a general vesting declaration. Alternatively, it may pay compensation into court and execute a deed poll, after which the land vests in the authority.

Amendment No. 167 would give a local authority an enabling power to draw up plans for contaminated land in its area for the purposes of securing its return into effective use. The Government are certainly keen to see contaminated land brought back into effective use. In support of that objective, we have made available considerable sums of public money—in the order of £250 million a year—to support regeneration through dealing with land contamination. This has been provided both to local authorities through, as the noble Baroness said, derelict land grant, and also through city grant and the work of the urban development corporations, Scottish Enterprise and the Welsh Development Agency. Since the start of the current financial year, English Partnerships has also been in full operation, and it recently announced details of its new investment fund which will replace the city grant and derelict land grant programmes.

Local authorities already have statutory powers to consult and to make plans for regeneration purposes, particularly as part of their development and planning control powers. In London and the metropolitan areas, councils produce unitary development plans setting out their policies, including those aimed at the improvement of the physical environment. Outside those areas, the district councils prepare local plans within the framework of county level structure plans; authorities are under a duty to include policies in respect of the improvement of the physical environment in their structure plans.

Planning Policy Guidance Note PPG12, Development Plans and Regional Planning Guidance, explicitly refers in this context to policies aimed at reclaiming contaminated and derelict land so that it can be brought back into use. Further guidance for local planning authorities on framing development plan policies and on controlling the development of contaminated land is set out in PPG23, Planning and Pollution Control. The Government do not therefore believe that the amendment is necessary. Having said that, I hope that the noble Baroness will withdraw her amendment.

Baroness Hilton of Eggardon: My Lords, it is disappointing that we have not had a more favourable response to the amendments. The local authorities feel, as I do, that there are insufficient powers and means for dealing with contaminated sites in town centres. We are therefore disappointed by the Government's response. However, I do not intend to press the matter. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Viscount Ullswater moved Amendments Nos. 164A to 164D:


Page 58, line 22, leave out from beginning to ("Part") in line 24 and insert:
("(a) significant harm is being caused or there is a significant possibility of such harm being caused, or
(b) pollution of controlled waters is being, or is likely to be, caused,
this").
Page 58, line 27, 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 58, line 32, 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 58, line 47, after ("(a)") insert ("significant").

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

On Question, amendments agreed to.

Viscount Ullswater moved Amendment No. 165:


Page 59, line 9, at end insert:

(""Application to the Isles of Scilly.

78Q.—(1) Subject to the provisions of any order under this section, this Part shall not apply in relation to the Isles of Scilly.
(2) The Secretary of State may, after consultation with the Council of the Isles of Scilly, by order provide for the application of any provisions of this Part to the Isles of Scilly; and any such order may provide for the application of those provisions to those Isles with such modifications as may be specified in the order.
(3) An order under this section may—
(a) make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and
(b) contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate, including provision saving provision repealed by or under any enactment.".").

The noble Viscount said: My Lords, this is a technical amendment to ensure that we would be able to provide for the contaminated land provisions to be applied to the Isles of Scilly after consultation with the Council of the Isles of Scilly. If we did not have this power, it could result in there being no legislation in force covering contaminated land applicable in the isles and in there not being appropriate powers to make any necessary modifications. I think noble Lords will agree that to proceed on this basis to reflect the particular institutional arrangements in place on the islands is the right thing. I beg to move.

On Question, amendment agreed to.

Viscount Ullswater moved Amendment No. 165A:


Page 59, line 9, at end insert:

("Supplementary provisions with respect to guidance by the Secretary of State.

78R.—(1) Any power of the Secretary of State to issue guidance under this Part shall only be exercisable after consultation with the appropriate Agency and such other bodies or persons as he may consider it appropriate to consult in relation to the guidance in question.
(2) A draft of any guidance proposed to be issued under section 78A(2) or (8A), 78B(1A) or 78E(4) above shall be laid before each House of Parliament and shall not be issued until

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after the period of 40 days beginning with the day on which the draft was so laid or, if the draft is laid on different days, the later of the two days.
(3) If, within the period mentioned in subsection (2) above, either House resolves that the guidance, the draft of which was laid before it, should not be issued, the Secretary of State shall not issue that guidance.
(4) In reckoning any period of 40 days for the purposes of subsection (2) or (3) above, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(5) The Secretary of State shall arrange for any guidance issued by him under this Part to be published in such manner as he considers appropriate.".").

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

On Question, amendment agreed to.

Lord Crickhowell moved Amendment No. 166:


Page 59, line 9, at end insert:

(""Default by local authority.

.—(1) If the Secretary of State is satisfied that a local authority has failed in any respect to discharge any function under this Part which it ought to have discharged, he may make an order declaring the authority to be in default.
(2) The failure to discharge any such function may be a failure in a class of case to which the function relates or a failure in a particular case.
(3) An order made under subsection (1) above which declares an authority to be in default may, for the purpose of remedying the default, direct the authority ("the defaulting authority") to perform any function specified in the order (whether in relation to a class of case or a particular case) and may specify the manner in which and the time or times within which the function is to be performed by the authority.
(4) If the defaulting authority fails to comply with any directions contained in such an order the Secretary of State may, instead of enforcing the order by mandamus, make an order transferring to himself any function of the authority specified in the order, whether in relation to all the classes of case to which the function relates or to such of those classes or, as the case may be, such particular case as is specified in the order.
(5) Where any function of a defaulting authority is transferred under subsection (4) above, the amount of any expenses which the Secretary of State certifies were incurred by him in performing the function shall on demand be paid to him by the defaulting authority.
(6) Any expenses required to be paid by a defaulting authority under subsection (5) above shall be defrayed by the authority in like manner and shall be debited to the like account, as if the functions had not been transferred and the expenses had been incurred by the authority in performing them.
(7) The Secretary of State may by order vary or revoke any order previously made by him under this section.
(8) An order transferring any functions of a defaulting authority may provide for the transfer to the Secretary of State of such of the property, rights, liabilities and obligations of the authority as he considers appropriate; and where such an order is revoked the Secretary of State may, by the revoking order or a subsequent order, make such provisions as he considers appropriate with respect to the property, rights, liabilities and obligations held by him for the purposes of the transferred function.
(9) Any order under this section may include such incidental, supplemental and transitional provisions as the Secretary of State considers appropriate.
(10) This section shall not apply to Scotland.".").

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The noble Lord said: My Lords, when my noble friend Lord Mills moved a similar and related amendment in Committee it was strongly resisted on the perhaps understandable ground that it appeared to be an attempt to allow the agency to take over the functions properly assigned to local authorities. My noble friend was aiming to ensure that, if for any reason local authorities failed to carry out the functions effectively, there was a fall-back position.

This amendment replaces the original attempt to transfer the responsibility to the agency with a proposal that we should place the default power with the Secretary of State. There is nothing very original about that because it is a frequent provision in a whole range of Bills. When speaking on the last occasion about this matter, my noble friend referred to the powers under the statutory nuisance provisions in Part III of the Environment Protection Act to deal with the problems posed by contaminated land. He pointed out that those powers were extensively used.

What he did not point out, although it seems relevant, is that there are default powers as regards the statutory nuisance provisions under Part III of the Environment Protection Act. I suppose it can be argued that local authorities have used those statutory nuisance powers extensively partly because there is a default power behind them. My noble friend's remarks can be found in the Official Report of 31st January at col. 1437.

I remain convinced that the Bill should include a default power, not because of any general failure on the part of local authorities in the past, but in recognition of the fact that, for a variety of reasons such as scarcity of resources and specialist expertise, there might be particular difficulties at some sites which would prevent local authorities acting effectively. Earlier this evening we debated an amendment on special sites. If my noble friend introduces an amendment at a later stage that picks up that special site provision effectively, I suppose that that will slightly weaken the requirement for default powers to go to the Secretary of State.

The case is strong and the form of provision is found in other administrative statutes. The exercise of default powers by the Secretary of State would be discretionary; the local authority would have an opportunity to comply with any directions given by the Secretary of State and only if the local authority then failed would the Secretary of State have to act. It is a reasonable proposal and, in view of the fact that the original suggestion has been modified, I hope that my noble friend may feel able to accept it. I beg to move.


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