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Lord Renton: My Lords, it has only just occurred to me—it should have occurred to me weeks or months ago—that much of the trouble involved in cases relating to land contaminated by abandoned or working mines would have been solved if there had been a land registration system everywhere. Of course, that advantage exists in Scotland but in England and Wales it is a rare condition.

The lack of registration on the land register makes the proposed amendments very important. Otherwise, not only will private sellers and purchasers of land suffer but the public interest may be affected. On many occasions, public authorities or charities need to buy land. It would be most unfortunate if people were deterred from making a desirable and necessary purchase owing to the uncertainty of the obligations—indeed, sometimes of the advantages—that have been obtained where the land has been properly cleared.

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Again, the noble Lord, Lord Northbourne, has raised an important practical point and I hope that he will receive a sympathetic reception from my noble friend.

The Earl of Lytton: My Lords, I support my noble friend Lord Northbourne. He touched on what lies at the heart of some of my misgivings about the operation of the Bill. They relate to the blight of uncertainty which results from the lack of a properly attached form of liability. I shall listen with great interest to the Minister's reply.

If we allow onto the statute book legislation which creates uncertainty it follows that that will create risk, which feeds through into every form of social and economic malaise. I cannot underscore that point too heavily. Certain areas are under threat, and in a previous debate on the Bill we heard the noble Lord, Lord Mason of Barnsley, speak eloquently about the blight that affects old coalmining areas. I too foresee the setting up of an industry to deal with risk management; the shuffling of liabilities to and fro.

In order to avoid the example set in the United States under the super-farm principles, there must be clear lines of demarcation. As I said previously in respect of the Bill, it is inevitable that some of those must fall into the public domain. It is not good enough for the Government, the Treasury or anyone else to say, "No, not us". The way in which the matter will be resolved, and the country's dirty history rectified, will be by people standing up and taking account of past actions, being pro-active and making investment. That means committing time, energy, money, and so forth, which are driven away by unassessable risk.

5.15 p.m.

Viscount Ullswater: My Lords, I must say to the noble Earl, Lord Lytton, that the Government accept a considerable amount of liability—if that is the correct word—because they spend a large amount of public money on cleaning up contaminated land, as does industry. In earlier debates, I mentioned that some £250 million per year was contributed by taxpayers to resolve this difficult question.

The amendments are more specific because they relate to the circumstances in which liabilities might fall to the owners or occupiers of land where they have not themselves caused or knowingly permitted that land to be contaminated. Amendment No. 25 seeks to make it less likely that the circumstances will arise where the polluter cannot be found, by providing for their responsibilities to be passed on if they should cease to exist. In the case of individuals, this would mean that were the polluter to die responsibility would pass to his heirs. In the case of companies which had been liquidated or dissolved, responsibility would pass to those to whom assets had been assigned.

Where any potential liabilities under these provisions have been crystallised through the service of a remediation notice before the polluter "ceases to exist", it would seem reasonable that the costs of compliance with that notice should constitute a call on the estate. We believe that that would be the position at law.

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However, the amendment would have serious effects on the law of probate and on company and insolvency law. I suggest that any changes to the law in those areas should be dealt with in those contexts. Otherwise, there is a serious risk that we would end up creating anomalous situations and considerable legal uncertainties. We could also inadvertently breach established and accepted legal doctrines which apply in those areas. As currently drafted, the amendments would also have the particular effect of making executors and administrators personally liable for the costs of remediation. For those reasons, I would not wish to accept the amendment.

Amendment No. 26 concerns the provision relating to the transfer of responsibility from the original polluter to a new owner of any land. As I have said on previous occasions, the Government recognise that the new Section 78E(3), as it currently stands in the Bill, is not entirely correct and we shall wish to bring forward our own amendments to it.

Our intention is to permit the statutory system to respect contractual arrangements, particularly through conveyances, which may have been made concerning responsibility for the condition of land. This amendment seeks to protect the rights and position of purchasers of land in any sale but it would potentially cut across the actual contractual arrangements governing that sale.

We believe that the statutory arrangements for the transfer of responsibilities should respect all of the provisions of any contract, including any relating to the treatment of latent defects and liabilities. It is certainly not the Government's intention to deny the purchasers of land any of the protections and rights that they would otherwise have enjoyed under their contracts.

The noble Lord mentioned the potential liabilities of British Gas. I am advised that the legal entity remains the same and therefore the liabilities remain. I hope that in the light of that clarification, the noble Lord will feel able to withdraw his amendment.

Lord Northbourne: My Lords, I believe that the Minister has conjured up many reasons for doing nothing but has not addressed the fundamental problems that I raised in introducing the amendment. Will he agree to look at the matter again and to reconsider it? There was a lot of meat in what I said. I shall not divide the House on this matter and therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

Lord Northbourne moved Amendment No. 27:

Page 55, line 50, at end insert:


(In any proceedings under sections 78G and 78H it shall be a defence to show either—
(a) that the contamination arises from the activities of others which the owner or occupier was powerless to prevent, or
(b) that the contamination was caused by the movement of contaminating liquids, gases or airborne particles onto the land by natural causes and there were no practical means by which the owner or occupier could prevent such contamination.").

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The noble Lord said: My Lords, I am sorry to take up so much of the time of the House. However, these are important issues and this is the last of my amendments. The amendment is about defences to having a remediation notice served upon you. The amendment would give householders, occupiers and owners some minimal defences against the unjust imposition of liability for remediation by an authority. It offers no more protection than is in practice available under current statute and common law.

At Report stage the Minister referred to Section 80 of Part III of the Environmental Protection Act. That section provides the person on whom a notice under that Act is served with a defence which is significantly broader than those proposed in the amendment.

The opinion taken by the CLA from Steven Tromans stated the following:

    "Arguments that the provisions of Part II of the Bill are doing no more than existing law can already do may be true to an extent, but are disingenuous in the extreme. If the existing powers are adequate to cover the mischief, then why are the new measures being enacted at all?".

He went on to refer to his instructions which give rather more detail and which again I shall take the liberty of quoting to your Lordships:

    "Whilst it is true to say that the common and statutory law does make a current occupier liable in certain instances for a nuisance caused by another, however this is in general only where the occupier can be said to have continued or adopted the nuisance. This applies to a limited number of cases where the occupier is regarded as being under a positive duty to act and implies the following:-

    (a) knowledge, actual or imputed of the nuisance; and

    (b) a determination by the courts that it was unreasonable for him to have failed to act.

    Where a nuisance arises from natural causes or the act of a third party, the liability of an innocent occupier of land is limited by what is reasonable having regard to his means and all the other circumstances of the case.

    None of these limitations and defences apply to the Bill which imposes an across the board, fall back liability in respect of all contaminated land. Under the Bill no defences apply save for fly tipping".

I turn briefly to the detail of my amendment. Paragraph (a) draws attention to the fact that there may be a few other cases similar to and as much justifying attention as fly-tipping. These include cases where the contamination arises from the activities of others which the owner or occupier was powerless to prevent. An example might be a privately owned road tanker which runs off the road down an embankment onto land or houses. The owner or driver being dead—the Minister has just told us that if he is dead he no longer is the polluter—the polluter cannot be found and so, as the Bill is currently drafted, the householder would be liable for any chemical leaking onto the backyards. Another example may or may not be pollution caused by licensees who have operated in the past and left contamination in mining shafts. I shall have to read what the Minister has said on that subject before I can be sure whether that falls into this category.

Under paragraph (b) of my amendment a second ground for defence would be that contamination has moved onto the land from other land in the form of migrating liquids, gases or dust particles. I have to say

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immediately that at Report stage the Minister said (at col. 209 of the Official Report) quite a lot of helpful things about the lateral movement of water and suggested that the Government were looking at introducing amendments in that respect. My amendment draws attention to the importance of giving equal status to the migration of contamination in the form of gases or dust particles as well as liquids. The case reported in The Times today, in which the Prudential and its tenants are suing PowerGen for damage caused to crops and soil by fumes from the Richborough Power Station, near which I live, sufficiently emphasises the importance of that kind of pollution. I have to admit that I think it unlikely that PowerGen as a potential polluter will disappear but, as I have already said this afternoon, it is very possible that smaller polluters may disappear and leave the landowner with the liability.

As the Bill is drafted it gives no power to the authority to serve a notice on the owner of an adjacent site from which contamination has migrated—only on the owner of the receiving site. That must be wrong. I believe that the two paragraphs of the amendment give a little wholly justifiable protection to the householder, occupier or owner of land and do not extend the defences which exist under existing law. I beg to move.

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