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Lord Stanley of Alderley: My Lords, I thank my noble friend for moving this amendment which answers the point that I was making. I have, however, one very small query for my noble friend which I should perhaps have picked up earlier. If the rubbish has contaminated the land and the waste authority does not collect it, as is its entitlement, could the occupier then be liable, under the contaminated land provisions, if he does not collect it? Apart from that query, I am most grateful to my noble friend.

Viscount Ullswater: My Lords, I believe that that is what the amendment seeks to obviate. As my noble friend explained, the landowner would not be responsible.

On Question, amendment agreed to.

Lord Northbourne moved Amendment No. 24:


Page 52, line 8, at end insert:
("( ) When an enforcing authority has served a remediation notice in accordance with this section it shall be the duty of the authority to take appropriate steps to satisfy itself that the work specified in that notice have been complied with and, when they have been, to record that fact on the Register.").

The noble Lord said: My Lords, I rise to move Amendment No. 24. Before I speak to it, perhaps I should say that I believe that it contains a slight grammatical error in that the word "work" in line 3 should read "works".

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The amendment relates to the Remediation Register. Under the Bill as it stands, the local authority must place on the register any details of contaminated land which it identifies, together with details of the remediation that it requires to be carried out and the person who is liable—the "appropriate person". The Bill makes no provision for the entry ever to be struck off the register or for any record to be kept of whether or not the remediation has been carried out to the local authority's satisfaction.

The blight which will be placed on land by its designation as "contaminated" on the register will therefore hang over it for ever. That effect seems to me to be the precise opposite of the Government's objective which was stated in A Framework for Contaminated Land, as,


    "to encourage an efficient market in land which may have been contaminated"

and to,


    "encourage the development of such land".

At Report stage, I introduced an amendment which would have required local authorities to issue, after the works had been completed, a certificate which would have given prospective purchasers and developers some confidence that the local authority was not simply waiting in the wings to pounce again on a new owner. That amendment was rejected.

I come back now with a much more modest proposal: that the local authority should at least be required to record on the register that the actual things which it directed should be done have been done, and to a standard that it finds acceptable. That will not impose extra work on the local authority because, having ordered something to be done, surely it must see that it has been done to a standard which it accepts.

In my view, the amendment does not go far enough to promote a lively market in "brown land" but it should at least help —that is, if the Minister accepts it and if your Lordships favour it. I beg to move.

5 p.m.

Lord Renton: My Lords, I support the amendment, which is necessary just in case in some later court proceedings there is a doubt or argument about this matter. By putting this on the record, it would remove any doubt and argument and could save a great deal of trouble. I hope that my noble friend will accept the amendment or at any rate the principle of it.

Viscount Ullswater: My Lords, I am grateful to the noble Lord, Lord Northbourne, for moving his amendment as it gives me an opportunity to flesh out in some more detail what are the Government's intentions in this area before the Bill goes for further debate in another place.

It is clear that the registers created under these provisions should contain, as well as the formal documents issued by the enforcing authorities, information about what assessment, remedial works and further monitoring have been done on any site. The availability of such information will play a major role in securing the Government's overall objective of

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encouraging an efficient market in land which may have been contaminated—the intention identified by the noble Lord, Lord Northbourne. I have already indicated in previous debates on these issues that the Government intend to bring forward their own amendment to correct what is clearly a gap in the existing provisions relating to the registers.

What we intend to do is to provide those served with remediation notices, or the owners of the land, with an opportunity to add their own information to the register recording what they have done to manage the contamination on the land. We do not believe that it should be the enforcing authorities which should provide that information. Although enforcing authorities will, of course, need to satisfy themselves that the terms of any remediation notice have been complied with, the onus for satisfying and meeting the concerns of any potential future purchasers of the land should lie with the owner of the land. One reason for that is that we intend that remediation notices should generally be phrased in terms of objectives to be achieved rather than specific works which have to be undertaken.

In some instances the requirements of a remediation notice may entail long-term measures; in others the circumstances of the site may change over time. As a result, a judgment made by an enforcing authority that the terms of a notice had been complied with could only be made on a contingent basis. If circumstances required it, the same site could be subject to further remediation requirements in the future.

Obviously in very many cases there will not be any need for further regulatory requirements under these provisions to manage any contamination. But the Government's concern is that if the information concerning remedial actions on the register came from the enforcing authority, future purchasers could be led to assume that the site had been given an unconditional clean bill of health.

That is the point that I wish to bring to the attention of my noble friend Lord Renton. If we did as the noble Lord, Lord Northbourne, suggested, the agency would take over from the owner of the contaminated land if there were an acknowledgement that the remediation had taken place. There may be contamination in the long term which would need to be dealt with. It should not be the regulatory authority which should have the responsibility for indicating that the land had a clean bill of health. That would have adverse effects on the efficiency of the property market, which might be working on false information. It could also have implications for the legal position of the enforcing authorities, as purchasers who relied on that information could seek to establish that they had been in dereliction of their duties if further problems arose.

For those reasons, I would ask the noble Lord to withdraw his amendment and await the Government's amendment on this matter.

Lord Northbourne: My Lords, I shall withdraw the amendment, but I should like to take the opportunity to draw two matters to the Minister's attention. The first is that many developers and purchasers will look no further than the register. If they find that the property is

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on the register, they will not go on to spend hours and days looking to see what has happened. Unless they have strong reasons for wanting to buy that property, they will go elsewhere.

The second point I wish to make is that the authority could use this provision as a way of waiting for a "fatter" owner to carry out more work; in other words, if the owner of the land at the time was not very well off, the authority could let the owner do a little work and wait for the property to be sold to someone who was better off. The authority might then pounce and ask for a great deal more work to be done. That is a threat which could put off purchasers. With those two points, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Northbourne moved Amendment No. 25:


Page 52, line 18, at end insert ("or the assignee, the executors, the administrators or the heir of such person.").

The noble Lord said: My Lords, I speak also to Amendment No. 26. The amendments relate to transfer of liability for pollution. It will be clearer if I speak first to the second of the amendments, Amendment No. 26, and then to Amendment No. 25.

Amendment No. 26 is concerned with the transfer of the polluter's liability specifically to the occupier or owner of the land, as referred to in Section 78E(3) (b). Such transfer can arise as the result of a transfer of an interest in the land for consideration, as a result of inheritance, gift, termination of a lease by the effluction of time or by implied or explicit transfer of the liability either for value or not; in other words, there are a number of different ways in which it can happen.

For future transfers, I accept fully that it will be up to the parties to get it right and to provide documentation which proves their intention; but for past transfers the section is so vague as to leave wide areas of uncertainty and the potential for unfairness. The National Conditions of Sale and the General Conditions of Sale of the Law Society refer to the transfer of liabilities. The CLA has, at my suggestion, taken senior legal opinion as to whether those standard clauses would effectively transfer liability for remediation from the polluting vendor of the land to a purchaser.

The opinion advises that there is considerable doubt. In particular, it seems probable that latent, as opposed to patent, liabilities which were not disclosed by the vendor at the time of sale could well not have been transferred. The position under the other forms of transfer which may or may not have taken place seems even more obscure.

The amendment would clarify the position. Its wording reflects the criteria of a prudent buyer which inform the terms of the National Conditions of Sale, which is where they have been taken from. I commend the amendment to the Government if for no better reason than because without it there may be some doubt as to whether all the latent liabilities of, say, the Gas Board have been transferred effectively to its privatising successors.

I turn now to Amendment No. 25 which refers to the transfer of a liability for pollution to any other person than the owner or occupier of the land. It is a probing

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amendment. I should like to ask the Minister two sets of questions. The first relates to the situation where the polluter is an individual. This is an important point. Do the Government intend that liability for pollution should die with the polluter and that the liability should not pass to his heirs, who, it is only fair to say, may have benefited from the money he made out of the polluting activities? If so, the liability will, as the Bill is drafted, fall automatically upon the owner or occupier of the land when the polluter dies. That will give the owner or occupier of the land an insurable interest in the life of the polluter.

The second question about the polluter as an individual is: can the polluter transfer his liability to another person inter vivos? In so far as the Bill contemplates him transferring his liability to the landowner, presumably he can. If so, could a polluter transfer his liability to a terminally ill person for consideration and thereby avoid liability and transfer the liability to the landowner or the occupier? If so, there will grow up a flourishing trade in deathbed transactions.

Finally, where the polluter is a limited liability company, do the Government envisage such a company being able to transfer its net assets to another company without transferring the latent liability for remediation of hidden contamination? If so, the polluting company could go into liquidation and thereby once again liability would be washed clean from the polluter and would be transferred to the owner or occupier. If that or some similar device is possible—and, as was pointed out on Report by the noble Lord, Lord Williams, it will be difficult to prevent that—surely, it will become standard practice to do whatever it is that enables the polluter to get off the hook.

I suggest that the Bill leaves wide open many loopholes for the polluter to avoid liability. Therefore, far from creating a framework to ensure that the polluter pays, the Bill appears to be designed to ensure that the occupier or the owner of the land pays. Unless the Bill is modified, it could go down in history as a polluters' charter. I beg to move.


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