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Baroness Hilton of Eggardon: My Lords, I thank the Minister for his response. Clearly, it would place an onerous duty on the agencies. I understand that. But this was an attempt to assess the extent of the problem. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 177 not moved.]

Lord Crickhowell moved Amendment No. 178:


After Clause 57, insert the following new clause:

("Preventative and remedial action

. After section 161 of the Water Resources Act 1991 there shall be inserted—
"Preventative and remedial action.

161A.—(1) Without prejudice to section 161 above, where it appears to the Agency that any poisonous, noxious or polluting matter or any solid waste matter is likely to enter, or to be, or to have been, present in any controlled waters, then the Agency may, by notice, require the person on whom the notice is served to carry out the following works and operations, that is to say—
(a) in a case where the matter appears likely to enter any controlled waters, works and operations for the purpose of preventing it from doing so; or
(b) in a case where the matter appears to be, or to have been, present in any controlled waters, works and operations for the purpose—
(i) of removing or disposing of the matter,
(ii) of remedying or mitigating any pollution caused by its presence in the waters, or
(iii) so far as it is reasonably practicable to do so, of restoring the waters, including any flora and fauna dependent on the aquatic environment of the waters, to their state immediately before the matter became present in the waters,
and, in either case, the Agency shall be entitled to carry out investigations for the purpose of establishing the source of the matter and the identity of the person who has caused, or knowingly permitted, it to be present in controlled waters or at a place from which it was likely, in the opinion of the Agency, to enter controlled waters.
(2) Subject to subsection (5) below, a notice under this section may be served on any person who, as the case may be—
(a) caused or knowingly permitted the matter in question to be present at the place from which it was likely, in the opinion of the Agency, to enter any controlled waters; or
(b) caused or knowingly permitted the matter in question to be present in any controlled waters.
(3) A notice under this section shall—
(a) state that the Agency is of the opinion that works and operations are needed;
(b) specify the nature and location of the matter in question and its point of entry into controlled waters, or its likely point of entry;
(c) specify the steps to be taken by way of works or operations to be undertaken;
(d) specify the period within which those steps must be taken.
(4) Any person who fails to comply with any requirement imposed by a notice under this section shall be guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding £20,000 or to imprisonment for a term not exceeding three months or to both; or

7 Mar 1995 : Column 243


(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
(5) A person on whom a notice is served may, within the period of twenty-one days beginning with the day on which the notice is served, appeal against the notice to the Secretary of State.
(6) On any appeal under this section the Secretary of State may confirm the notice, with or without modification, or quash it.
(7) Where the Secretary of State confirms a notice, with or without modification, he may extend the period specified in the notice for doing what the notice requires to be done.
(8) Regulations may make provision with respect to—
(a) the grounds on which appeals under this section may be made; or
(b) the procedure on any such appeal.
(9) Regulations under subsection (8) above may (among other things)—
(a) include provisions comparable to those in section 290 of the Public Health Act 1936 (appeals against notices requiring the execution of works);
(b) prescribe the cases in which a notice is, or is not, to be suspended until the appeal is decided, or until some other stage in the proceedings;
(c) prescribe the cases in which the decision on an appeal may in some respects be less favourable to the appellant than the notice against which he is appealing;
(d) make provisions as respects—
(i) the particulars to be included in the notice of appeal;
(ii) the persons on whom notice of appeal is to be served and the particulars, if any, which are to accompany the notice; and
(iii) the abandonment of an appeal; and
(e) make different provision for different cases or classes of case.
(10) A notice under this section may not be served on a person requiring works and operations in respect of water from an abandoned mine which that person permitted to reach such a place as is mentioned in subsection (2) above or to enter any controlled waters unless the mine in question became an abandoned mine after 1st April 1996.
(11) In this section "controlled waters" and "mine" have the same meaning as in section 161 above.".").

The noble Lord said: My Lords, I know that the House is anxious to jump the hurdle or hedgerow into national parks and I shall try to be as brief as I possibly can.

Amendment No. 178 and Amendments Nos. 280A and 282 cover related but rather different subjects. Amendment No. 178 would give the agency a new power to serve a notice requiring anti-pollution works to be carried out by a polluter or potential polluter of controlled waters. These works could include the removal of polluting matter, remedying or mitigating pollution or, so far as reasonably practical, restoration of waters to their state before the pollution occurred.

When a similar amendment was moved on 31st January, my noble friend said that he recognised that:


    "the underlying principle that the agency should be able to require polluters to take action to remedy water pollution and pay for that action merits further consideration".—[Official Report, 31/1/95; col. 1486.]

He criticised the amendment then before the House on the ground that it provided no right of appeal. This amendment has introduced a right of appeal. The appeal provisions are modelled on those in the Bill for

7 Mar 1995 : Column 244

contaminated land enforcement notices, which I hope will satisfy my noble friend's desire to achieve as much consistency between provisions in the Bill as possible. On 31st January the Minister asked my noble friend Lord Mills to withdraw the amendment while he undertook consideration of the problem. I press the matter again tonight to see what that consideration has produced and whether or not the Government have come to any conclusion upon it.

Amendment No. 280A raises an issue that I have raised before. Following the decision of the House of Lords last year in the Yorkshire Water Services case, we have been forced reluctantly to the conclusion that discharge consents issued by the NRA restrict or control only the discharge of substances that are identified within the terms of the consent. The net effect is that the holder of a discharge consent will have a defence as regards pollution caused by the discharge of matter or substances which are not controlled or regulated by the consent purely because the consent exists. If that is really so, a discharge consent can in effect become a licence to pollute. I cannot believe that that is the intention of Parliament. The NRA and all its predecessor bodies have taken the view that a discharge consent is exclusive; in other words, anything that is not identified in a consent is not permitted to be discharged. Surely, that must have been the intention of Parliament when the legislation was introduced. I know that the Government are considering the problem, and I do not expect my noble friend to produce a solution tonight. But it is important that some indication be given of the way that the Government intend to act.

If legislative action is taken—which may be the neatest way—we have to ensure that it is not retrospective in effect. We must also ensure that it does not make dischargers responsible for that for which they cannot reasonably be held responsible. Section 87 of the Water Resources Act 1991 probably satisfactorily relieves sewerage undertakers of the responsibility for the wrongdoing of trade effluent dischargers. On the other hand, if the new agency is forced to proceed by way of amendment of all existing consents, I think it is perfectly fair to suggest that there ought to be prior consultation between the DoE, the agency (or the NRA if the matter comes up sooner) and such organisations as the Water Services Association, the CBI, the Chemical Industries Association and so on. I do not suggest that we rush in without proper consideration of the issues. If there is not to be a major void created in effective pollution control there must be either legislative action or large-scale amendment of existing consents.

That takes me to Amendment No.282. I confess that I do not expect my noble friend to accept it. I urge that, if the agency has to go down the route of amending its consents and that stimulates a rush of appeals against those amended consents, as it almost certainly will, those appeals should be dealt with expeditiously by the department. I suggest that there be a 12-month limit before the Secretary of State deals with the appeal. If the appeal is not determined in that period, it will fail. We must address the realities of the situation.

7 Mar 1995 : Column 245

That brings me back to a point that I believe I made fairly forcefully at Second Reading. I said that this legislation created a partnership between the agency and government. If the department does not play its part effectively, the agency will be totally ineffective. If we have a situation where discharge consents are amended and appeals are not dealt with promptly, the agency will be rendered powerless.

I am prompted to make that observation because in the five years and more of the NRA's existence a very large number of appeals have been made against revised consent conditions and virtually none of them has been dealt with by the department. That has proved a major weakness. I really do fear that it could be a crippling weakness for the new agency. I hope that if my noble friend is not prepared to put in a 12 months' limit—I suspect that he will find all kinds of faults with my amendment—he will at least give a very clear undertaking that the Government recognise the seriousness of the problem that I have identified and will come along with a solution and give undertakings that every attempt will be made to deal with the problem speedily and effectively. I beg to move.

11 p.m.

Viscount Ullswater: My Lords, Amendment No. 178 revisits a proposal made in Committee for the agency to be able to exercise a new power to serve a notice on a polluter or potential polluter of controlled waters requiring the performance of anti-pollution works. This amendment sets out in more detail the procedure envisaged, and I am grateful to my noble friend for the further work which has been undertaken.

We are giving very careful consideration to the proposal for the introduction of a pollution notice procedure. I appreciate that the NRA considers that such a power would be of considerable benefit in preventing pollution incidents and that such a power would have proved useful in respect of a number of recent cases. As I indicated in Committee, the proposal does raise some difficult issues and we need to complete our consideration of them. If we are able to develop a suitable proposal, I am sure that we would wish to discuss it with interested parties.

We considered an identical amendment to Amendment No. 280A during the Committee stage. I appreciate that my noble friend has a very strong interest in this matter which, as I have previously indicated, we are looking at carefully. The amendment would amend Section 88 of the Water Resources Act 1991, which provides certain statutory defences against a charge of pollution, so that any consent granted by the agency in respect of discharges to controlled waters is not to be taken as authorising the discharge of substances other than those specifically identified in the relevant consent. The intended effect would be to establish that a discharge under and in accordance with a consent should not attract a statutory defence against a charge of pollution as regards any substance in respect of which there is not specific provision in the consent. In short it would limit the scope of the current defence.

7 Mar 1995 : Column 246

I know that there is a long history underlying this proposal and I appreciate that my noble friend Lord Crickhowell takes the view that enforcement actions by the National Rivers Authority have been constrained. However, as I explained to the House previously, we cannot accept the proposal which he has put forward.

As I mentioned in Committee, many of the perceived difficulties stem from the drafting of the consents that have been granted. My noble friend indicated that he agrees with that. Legislation is unlikely to be the right vehicle to try to solve the contentious but clearly technical matters affecting individual consents which vary greatly and have been granted over a long period of time by different regulatory authorities. Retrospective effects are of particular concern to the Government and also to my noble friend.

We are, however, looking at the effect of recent judgments on the law governing these matters. That is a prerequisite before considering whether corrective action is required or, if so, whether a legislative route would be either desirable or practicable. Changes in this area are of great importance, affecting a substantial number of dischargers, and potentially controversial. We therefore need to be quite sure of our ground before any action can be considered.

My noble friend recognised these issues to be extremely difficult and complex. I should also signal that, were the conclusion to be reached that action might be required, given the potentially major implications for those currently holding discharge consents and those applying for consents in future, we should want to hear from all the interested parties.

Amendment No. 282 would give the Secretary of State, or the inspector acting on his behalf, 12 months to decide an appeal against a discharge consent, otherwise it would be treated as refused.

The intention behind the proposal is to reduce the time taken by my department to reach decisions on appeals. It is the case that delays have occurred in the past in a number of discharge consent appeal cases which have involved complex policy issues. However, through discussion primarily with the National Rivers Authority and the water industry, these issues have largely been resolved. A general review by the NRA and the water industry of affected consents and related appeals is now well under way.

For the future, it is envisaged that numbers of new appeals in respect of decisions by the environment agency on discharge consent applications will be very substantially fewer and the timescale for resolving them significantly shorter, especially through the use of inspectors appointed by my department's planning inspectorate. I hope that in the light of this response my noble friend will feel able to withdraw his amendments.


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