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Baroness Hilton of Eggardon: My Lords, I have one specific question which the Minister may feel reluctant to answer. It concerns "reasonable time". I realise that he was reluctant to commit a Secretary of State to what might be a reasonable time for making a decision but this is in relation to the enforcing authority. Where an owner intends to take appropriate remediation measures he must prepare and publish a remediation statement. Where he fails to do so in a reasonable time the enforcing authority may do so itself and recover the costs of so doing. I wonder whether the noble Earl might venture an opinion as to what is a reasonable time in this respect. As he is not committing a Secretary of State on this occasion, I hope we can get some kind of answer as to whether six months, a year, two years or five years might be considered a reasonable time.

A more general and perhaps more important point relates to the costs to local authorities due to the introduction of these very welcome measures for dealing with contaminated land. For the first time local authorities will have an explicit duty to inspect their areas in order to identify contaminated land. The existing provisions, which are much more vague and tenuous, require only that they identify nuisances. The contaminated land test is set at a much lower level than the test for nuisance and therefore no doubt local authorities will be identifying far more contaminated land within their area. Moreover, this will require a much greater proportion of the land to be acted on.

Local authorities are also required to determine whether these contaminated sites should be identified as special sites. Contaminated land will also include closed and abandoned mines. Following identification, local authorities must also consult with owners, occupiers and all others with an interest in the land before serving a remediation notice or accepting proposals from an owner for a remediation programme.

All of those are considerable, time-consuming matters which will require additional staff and which may ultimately require additional capital investment. It has been estimated by the district councils that the formal inspection of land and the setting up of registers could mean that an additional one-and-a-half officers per district council are needed at an average cost of £30,000 per annum. Is it intended that that additional cost to

11 Jul 1995 : Column 1500

local authorities will be funded from central funds? As we know, local authorities are already gravely overstretched through a number of other duties being imposed on them. The additional burden will make the welcome provisions of this legislation unworkable unless additional finance is provided for local authorities.

Lord Jenkin of Roding: My Lords, I know that I speak for a number of my noble friends when I say how immensely grateful I am for the long statement which my noble friend the Minister has made about the position of lenders. Without wishing in any way to appear ungrateful, when my noble friend replies to this brief debate will he say whether that statement about lenders will be made quite clear in the guidance when it is issued?

Lord Peyton of Yeovil: My Lords, I should like briefly to offer my warm congratulations to my noble friend on the skill with which he steered his way through the not always limpid clear waters of the amendments that we are now discussing.

However, I wonder whether my noble friend could say just a word or two more about "appropriate person". Amendment No. 35 does not do a great deal to help me. Indeed, I suspect that not all of your Lordships will feel deeply grateful for the explanation that it contains. It states:


    "'appropriate person' means any person who is an appropriate person".

That does not take me much further. It then states:


    "determined in accordance with section 78E below, to bear responsibility for any thing which is to be done by way of remediation in any particular case".

Perhaps that particular piece of language should be enshrined in Hansard as an example of what ought to be avoided if at all possible. We are told by way of explanation that that implies that there can be more than one appropriate person in relation to any particular site. I am bound to say that that explanation and enlightenment succeeds in one thing: it adds to my confusion, but that may well be my fault and no one else's. I should be grateful if my noble friend could say a word or two about "appropriate person" because it might be important.

4.45 p.m.

Earl Ferrers: My Lords, I apologise again for the lengthy introduction to this group of amendments. I apologise also for the fact that it might have been a little tedious for your Lordships. But, as my noble friend Lord Jenkin realised, this is of considerable importance to many people.

The noble Baroness, Lady Hilton, was keen to find out what I think "reasonable" means. I am afraid that I cannot give much of an answer because the "reasonableness" depends on the problem. Perhaps we can remove ourselves for a moment from consideration of the Bill. If the noble Baroness had left her handbag on a chair upon which I wanted to sit and I asked her to remove it, I might think that it was unreasonable if she took an hour to do so. On the other hand, if she was occupying my house and I asked her to move out of the

11 Jul 1995 : Column 1501

house, it might be unreasonable to expect her to do so in under six months. A definition of "reasonableness" depends on the situation about which one is expected to be "reasonable". The question of how long is "reasonable" will have to be considered by local authorities, but I should have thought that it was likely to be a question of months rather than longer.

The noble Baroness was also concerned about remediation. As I have said, the time period depends very much on the problems. The noble Baroness also referred to costs and asked whether local authorities would receive more funding. The Department of the Environment already runs a contaminated land survey and a supplementary credit approval programme to provide capital resources to local authorities for such work. Since 1990, some £40 million has been spent under the programme on investigation and remediation works at over 800 sites. The size of the programme is reviewed annually in the public expenditure survey. I have no doubt that that will continue and that local authorities will be affected accordingly.

My noble friend Lord Jenkin asked whether the statement would appear in the guidance. I do not think that guidance can seek to construe primary legislation. There is a danger that if we seek to remove any doubt about the meaning of the term "cause or knowingly permit" in the context of this legislation, it could create the opposite effect in other legislation. I think that we ought to leave the statement as it is, knowing the way in which it will be taken.

My noble friend Lord Peyton referred to the "appropriate person" and said that such expressions should be enshrined in Hansard. I can understand my noble friend feeling that. Indeed, he reminded me of another Bill and a Committee debate about somebody being over the age of 16. The Bill said that a person would be deemed to be over the age of 16 if he was not under the age of 16. I thought that that was fairly explicit. The definition of who is an "appropriate person" will appear in Section 78E and anyone who does not fall within the definition will not be an appropriate person. My noble friend now knows exactly where he is. I should have thought that it was pretty obvious really.

The noble Baroness, Lady Hilton, was also concerned about the contaminated land regime which identifies land as contaminated only if it gives rise to significant harm or water pollution. That will not impose much greater burdens on local authorities than the existing statutory nuisance regime which identifies contaminated land which is prejudicial to health. I hope that I have responded to most of your Lordships' concerns and that your Lordships' will consider that this group of amendments should be approved.

On Question, Motion agreed to.


COMMONS AMENDMENTS
36Clause 54, page 49, leave out lines 20 and 21.
37Page 50, line 30, at end insert:
'"remediation declaration" has the meaning given by section 78EA(5) below;'.
38Page 50, line 34, leave out '78C(1)' and insert '78EA(6)'.

11 Jul 1995 : Column 1502


39Page 50, line 34, at end insert:
'"required to be designated as a special site" shall be construed in accordance with section 78BB(8) below;'.
40Page 50, leave out lines 47 to 51.
41Page 51, line 2, leave out from 'purpose' to end of line 7 and insert:
'(a) of identifying contaminated land; and
(b) of enabling the authority to decide whether any such land is land which is required to be designated as a special site.'.
42Page 51, line 12, leave out from beginning to end of line 28 on page 52 and insert:
'(4) If a local authority identifies any contaminated land in its area, it shall give notice of that fact to—
(a) the appropriate Agency;
(b) the owner of the land;
(c) any person who appears to the authority to be in occupation of the whole or any part of the land; and
(d) each person who appears to the authority to be an appropriate person;
and any notice given under this subsection shall state by virtue of which of paragraphs (a) to (d) above it is given.
(5) If, at any time after a local authority has given any person a notice pursuant to subsection (4) (d) above in respect of any land, it appears to the enforcing authority that another person is an appropriate person, the enforcing authority shall give notice to that other person—
(a) of the fact that the local authority has identified the land in question as contaminated land; and
(b) that he appears to the enforcing authority to be an appropriate person.
Identification and designation of special sites.

78BB.—(1) If at any time it appears to a local authority that any contaminated land in its area might be land which is required to be designated as a special site, the authority—
(a) shall decide whether or not the land is land which is required to be so designated; and
(b) if the authority decides that the land is land which is required to be so designated, shall give notice of that decision to the relevant persons.
(2) For the purposes of this section, "the relevant persons" at any time in the case of any land are the persons who at that time fall within paragraphs (a) to (d) below, that is to say—
(a) the appropriate Agency;
(b) the owner of the land;
(c) any person who appears to the local authority concerned to be in occupation of the whole or any part of the land; and
(d) each person who appears to that authority to be an appropriate person.
(3) Before making a decision under paragraph (a) of subsection (1) above in any particular case, a local authority shall request the advice of the appropriate Agency, and in making its decision shall have regard to any advice given by that Agency in response to the request.
(4) If at any time the appropriate Agency considers that any contaminated land is land which is required to be designated as a special site, that Agency may give notice of that fact to the local authority in whose area the land is situated.
(5) Where notice under subsection (4) above is given to a local authority, the authority shall decide whether the land in question—
(a) is land which is required to be designated as a special site, or

11 Jul 1995 : Column 1503


(b) is not land which is required to be so designated,
and shall give notice of that decision to the relevant persons.
(6) Where a local authority makes a decision falling within subsection (1) (b) or (5) (a) above, the decision shall, subject to section 78BC below, take effect on the day after whichever of the following events first occurs, that is to say—
(a) the expiration of the period of twenty-one days beginning with the day on which the notice required by virtue of subsection (1) (b) or, as the case may be, (5) (a) above is given to the appropriate Agency; or
(b) if the appropriate Agency gives notification to the local authority in question that it agrees with the decision, the giving of that notification;
and where a decision takes effect by virtue of this subsection, the local authority shall give notice of that fact to the relevant persons.
(7) Where a decision that any land is land which is required to be designated as a special site takes effect in accordance with subsection (6) above, the notice given under subsection (1) (b) or, as the case may be, (5) (a) above shall have effect, as from the time when the decision takes effect, as the designation of that land as such a site.
(8) For the purposes of this Part, land is required to be designated as a special site if, and only if, it is land of a description prescribed for the purposes of this subsection.
(9) Regulations under subsection (8) above may make different provision for different cases or circumstances or different areas or localities and may, in particular, describe land by reference to the area or locality in which it is situated.
(10) Without prejudice to the generality of his power to prescribe any description of land for the purposes of subsection (8) above, the Secretary of State, in deciding whether to prescribe a particular description of contaminated land for those purposes, may, in particular, have regard to—
(a) whether land of the description in question appears to him to be land which is likely to be in such a condition, by reason of substances in, on or under the land that—
(i) serious harm would or might be caused, or
(ii) serious pollution of controlled waters would be, or would be likely to be, caused; or
(b) whether the appropriate Agency is likely to have expertise in dealing with the kind of significant harm, or pollution of controlled waters, by reason of which land of the description in question is contaminated land.
Referral of special site decisions to the Secretary of State.

78BC.—(1) In any case where—
(a) a local authority gives notice of a decision to the appropriate Agency pursuant to subsection (1) (b) or (5) (b) of section 78BB above, but
(b) before the expiration of the period of twenty-one days beginning with the day on which that notice is so given, that Agency gives the local authority notice that it disagrees with the decision, together with a statement of its reasons for disagreeing,
the authority shall refer the decision to the Secretary of State and shall send to him a statement of its reasons for reaching the decision.

11 Jul 1995 : Column 1504


(2) Where the appropriate Agency gives notice to a local authority under paragraph (b) of subsection (1) above, it shall also send to the Secretary of State a copy of the notice and of the statement given under that paragraph.
(3) Where a local authority refers a decision to the Secretary of State under subsection (1) above, it shall give notice of that fact to the relevant persons.
(4) Where a decision of a local authority is referred to the Secretary of State under subsection (1) above, he—
(a) may confirm or reverse the decision with respect to the whole or any part of the land to which it relates; and
(b) shall give notice of his decision on the referral—
(i) to the relevant persons; and
(ii) to the local authority.
(5) Where a decision of a local authority is referred to the Secretary of State under subsection (1) above, the decision shall not take effect until the day after that on which the Secretary of State gives the notice required by subsection (4) above to the persons there mentioned and shall then take effect as confirmed or reversed by him.
(6) Where a decision which takes effect in accordance with subsection (5) above is to the effect that at least some land is land which is required to be designated as a special site, the notice given under subsection (4) (b) above shall have effect, as from the time when the decision takes effect, as the designation of that land as such a site.
(7) In this section "the relevant persons" has the same meaning as in section 78BB above.'.
43Page 52, leave out line 31 and insert 'virtue of section 78BB(7) or 78BC(6)'.
44Page 52, line 38, leave out 'section' and insert 'Part'.
45Page 52, line 38, leave out 'the' and insert 'each person who is an'.
46Page 52, line 41, leave out 'required'.
47Page 52, line 41, leave out from 'the' to 'things' in line 45 and insert 'periods within which he is required to do each of the things so specified.
(1A) Different remediation notices requiring the doing of different things by way of remediation may be served on different persons in consequence of the presence of different substances in, on or under any land or waters.
(1B) Where two or more persons are appropriate persons in relation to any particular thing which is to be done by way of remediation, the remediation notice served on each of them shall state the proportion, determined under section 78E(5) below, of the cost of doing that thing which each of them respectively is liable to bear.
(2) The only things by way of remediation which the enforcing authority may do, or require to be done, under or by virtue of this Part are'.
48Page 53, leave out lines 1 to 29.
49Page 53, line 30, leave out from 'determining' to end of line 32 and insert 'for any purpose of this Part—
(a) what is to be done (whether by an appropriate person, the enforcing authority or any other person) by way of remediation in any particular case,'.
50Page 53, line 34, at end insert 'or
(c) what is, or is not, to be regarded as reasonable for the purposes of subsection (2) above,'.
51Page 53, line 35, leave out 'concerned'.
52Page 53, line 36, leave out 'the appropriate Agency or'.
53Page 53, leave out lines 38 and 39 and insert:

11 Jul 1995 : Column 1505


'(7) Regulations may make provision for or in connection with—
(a) the form or content of remediation notices; or
(b) any steps of a procedural nature which are to be taken in connection with, or in consequence of, the service of a remediation notice.'.
54Page 53, line 40, leave out 'subject to section 78F below'.
55Page 53, line 42, leave out 'on whom to serve a remediation notice' and insert 'to bear responsibility for any particular thing which the enforcing authority determines is to be done by way of remediation in any particular case.'.
56Page 53, line 44, leave out from beginning to end of line 26 on page 54 and insert:
'(2) Subject to the following provisions of this section, any person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land is an appropriate person.
(2A) A person shall only be an appropriate person by virtue of subsection (2) above in relation to things which are to be done by way of remediation which are to any extent referable to substances which he caused or knowingly permitted to be present in, on or under the contaminated land in question.
(3) If no person has, after reasonable inquiry, been found who is by virtue of subsection (2) above an appropriate person to bear responsibility for the things which are to be done by way of remediation, the owner or occupier for the time being of the contaminated land in question is an appropriate person.
(3A) If, in consequence of subsection (2A) above, there are things which are to be done by way of remediation in relation to which no person has, after reasonable inquiry, been found who is an appropriate person by virtue of subsection (2) above, the owner or occupier for the time being of the contaminated land in question is an appropriate person in relation to those things.
(4) Where two or more persons would, apart from this subsection, be appropriate persons in relation to any particular thing which is to be done by way of remediation, the enforcing authority shall determine in accordance with guidance issued for the purpose by the Secretary of State whether any, and if so which, of them is to be treated as not being an appropriate person in relation to that thing.
(5) Where two or more persons are appropriate persons in relation to any particular thing which is to be done by way of remediation, they shall be liable to bear the cost of doing that thing in proportions determined by the enforcing authority in accordance with guidance issued for the purpose by the Secretary of State.
(6) Any guidance issued for the purposes of subsection (4) or (5) above shall be issued in accordance with section 78R below.
(7) A person who has caused or knowingly permitted any substance ("substance A") to be in, on or under any land shall also be taken for the purposes of this section to have caused or knowingly permitted there to be in, on or under that land any substance which is there as a result of a chemical reaction or biological process affecting substance A.
(8) A thing which is to be done by way of remediation may be regarded for the purposes of this Part as referable to the presence of any substance notwithstanding that the thing in question would not have to be done—
(a) in consequence only of the presence of that substance in any quantity; or

11 Jul 1995 : Column 1506


(b) in consequence only of the quantity of that substance which any particular person caused or knowingly permitted to be present.
Grant of, and compensation for, rights of entry etc.

78EZA.—(1) A remediation notice may require an appropriate person to do things by way of remediation, notwithstanding that he is not entitled to do those things.
(2) Any person whose consent is required before any thing required by a remediation notice may be done shall grant, or join in granting, such rights in relation to any of the relevant land or waters as will enable the appropriate person to comply with any requirements imposed by the remediation notice.
(3) Before serving a remediation notice, the enforcing authority shall reasonably endeavour to consult every person who appears to the authority—
(a) to be the owner or occupier of any of the relevant land or waters, and
(b) to be a person who might be required by subsection (2) above to grant, or join in granting, any rights,
concerning the rights which that person may be so required to grant.
(4) Subsection (3) above shall not preclude the service of a remediation notice in any case where it appears to the enforcing authority that the contaminated land in question is in such a condition, by reason of substances in, on or under the land, that there is imminent danger of serious harm, or serious pollution of controlled waters, being caused.
(5) A person who grants, or joins in granting, any rights pursuant to subsection (2) above shall be entitled, on making an application within such period as may be prescribed and in such manner as may be prescribed to such person as may be prescribed, to be paid by the appropriate person compensation of such amount as may be determined in such manner as may be prescribed.
(6) Without prejudice to the generality of the regulations that may be made by virtue of subsection (5) above, regulations by virtue of that subsection may make such provision in relation to compensation under this section as may be made by regulations by virtue of subsection (4) of section 35A above in relation to compensation under that section.
(7) In this section, "relevant land or waters" means—
(a) the contaminated land in question;
(b) any controlled waters affected by that land; or
(c) any land adjoining or adjacent to that land or those waters.
Restrictions and prohibitions on serving remediation notices.

78EA.—(1) Before serving a remediation notice, the enforcing authority shall reasonably endeavour to consult—
(a) the person on whom the notice is to be served,
(b) the owner of any land to which the notice relates,
(c) any person who appears to that authority to be in occupation of the whole or any part of the land, and
(d) any person of such other description as may be prescribed,
concerning what is to be done by way of remediation.
(1A) Regulations may make provision for, or in connection with, steps to be taken for the purposes of subsection (1) above.
(2) No remediation notice shall be served on any person by reference to any contaminated land during any of the following periods, that is to say—
(a) the period—

11 Jul 1995 : Column 1507


(i) beginning with the identification of the contaminated land in question pursuant to section 78B(1) above, and
(ii) ending with the expiration of the period of three months beginning with the day on which the notice required by subsection (4) (d) or, as the case may be, (5) of section 78B above is given to that person in respect of that land;
(b) if a decision falling within paragraph (b) of section 78BB(1) above is made in relation to the contaminated land in question, the period beginning with the making of the decision and ending with the expiration of the period of three months beginning with—
(i) in a case where the decision is not referred to the Secretary of State under section 78BC above, the day on which the notice required by section 78BB(6) above is given, or
(ii) in a case where the decision is referred to the Secretary of State under section 78BC above, the day on which he gives the notice required by subsection (4) (b) of that section;
(c) if the appropriate Agency gives a notice under subsection (4) of section 78BB above to a local authority in relation to the contaminated land in question, the period beginning with the day on which that notice is given and ending with the expiration of the period of three months beginning with—
(i) in a case where notice is given under subsection (6) of that section, the day on which that notice is given;
(ii) in a case where the authority makes a decision falling within subsection (5) (b) of that section and the appropriate Agency fails to give notice under paragraph (b) of section 78BC(1) above, the day following the expiration of the period of twenty-one days mentioned in that paragraph; or
(iii) in a case where the authority makes a decision falling within section 78BB(5) (b) above which is referred to the Secretary of State under section 78BC above, the day on which the Secretary of State gives the notice required by subsection (4) (b) of that section.
(3) Neither subsection (1) nor subsection (2) above shall preclude the service of a remediation notice in any case where it appears to the enforcing authority that the land in question is in such a condition, by reason of substances in, on or under the land, that there is imminent danger of serious harm, or serious pollution of controlled waters, being caused.
(4) The enforcing authority shall not serve a remediation notice on a person if and so long as any one or more of the following conditions is for the time being satisfied in the particular case, that is to say—
(a) the authority is satisfied, in consequence of section 78D(2) and (6) above, that there is nothing by way of remediation which could be specified in a remediation notice served on that person;
(b) the authority is satisfied that appropriate things are being, or will be, done by way of remediation without the service of a remediation notice on that person;
(c) it appears to the authority that the person on whom the notice would be served is the authority itself; or

11 Jul 1995 : Column 1508


(d) the authority is satisfied that the powers conferred on it by section 78HH below to do what is appropriate by way of remediation are exercisable.
(5) Where the enforcing authority is precluded by virtue of section 78D(2) or (6) above from specifying in a remediation notice any particular thing by way of remediation which it would otherwise have specified in such a notice, the authority shall prepare and publish a document (in this Part referred to as a "remediation declaration") which shall record—
(a) the reasons why the authority would have specified that thing; and
(b) the grounds on which the authority is satisfied that it is precluded from specifying that thing in such a notice.
(6) In any case where the enforcing authority is precluded, by virtue of paragraph (b), (c) or (d) of subsection (4) above, from serving a remediation notice, the responsible person shall prepare and publish a document (in this Part referred to as a "remediation statement") which shall record—
(a) the things which are being, have been, or are expected to be, done by way of remediation in the particular case;
(b) the name and address of the person who is doing, has done, or is expected to do, each of those things; and
(c) the periods within which each of those things is being, or is expected to be, done.
(7) For the purposes of subsection (6) above, the "responsible person" is—
(a) in a case where the condition in paragraph (b) of subsection (4) above is satisfied, the person who is doing or has done, or who the enforcing authority is satisfied will do, the things there mentioned; or
(b) in a case where the condition in paragraph (c) or (d) of that subsection is satisfied, the enforcing authority.
(8) If a person who is required by virtue of subsection (7) (a) above to prepare and publish a remediation statement fails to do so within a reasonable time after the date on which a remediation notice specifying the things there mentioned could, apart from subsection (4) above, have been served, the enforcing authority may itself prepare and publish the statement and may recover its reasonable costs of doing so from that person.
(9) Where the enforcing authority has been precluded by virtue only of subsection (4) above from serving a remediation notice on an appropriate person but—
(a) none of the conditions in that subsection is for the time being satisfied in the particular case, and
(b) the authority is not precluded by any other provision of this Part from serving a remediation notice on that appropriate person,
the authority shall serve a remediation notice on that person; and any such notice may be so served without any further endeavours by the authority to consult persons pursuant to subsection (1) above, if and to the extent that that person has been consulted pursuant to that subsection concerning the things which will be specified in the notice.
Restrictions on liability relating to the pollution of controlled waters.

78EB.—(1) This section applies where any land is contaminated land by virtue of paragraph (b) of subsection (2) of section 78A above (whether or not the land is also contaminated land by virtue of paragraph (a) of that subsection).

11 Jul 1995 : Column 1509


(2) Where this section applies, no remediation notice given in consequence of the land in question being contaminated land shall require a person who is an appropriate person by virtue of section 78E(3) or (3A) above to do anything by way of remediation to that or any other land, or any waters, which he could not have been required to do by such a notice had paragraph (b) of section 78A(2) above (and all other references to pollution of controlled waters) been omitted from this Part.
(3) If, in a case where this section applies, a person permits, has permitted, or might permit, water from an abandoned mine or part of a mine—
(a) to enter any controlled waters, or
(b) to reach a place from which it is or, as the case may be, was likely, in the opinion of the enforcing authority, to enter such waters,
no remediation notice shall require him in consequence to do anything by way of remediation (whether to the contaminated land in question or to any other land or waters) which he could not have been required to do by such a notice had paragraph (b) of section 78A(2) above (and all other references to pollution of controlled waters) been omitted from this Part.
(4) Subsection (3) above shall not apply to the owner or former operator of any mine or part of a mine if the mine or part in question became abandoned after 31st December 1999.
(4A) In determining for the purposes of subsection (4) above whether a mine or part of a mine became abandoned before, on or after 31st December 1999 in a case where the mine or part has become abandoned on two or more occasions, of which—
(a) at least one falls on or before that date, and
(b) at least one falls after that date,
the mine or part shall be regarded as becoming abandoned after that date (but without prejudice to the operation of subsection (3) above in relation to that mine or part at, or in relation to, any time before the first of those occasions which falls after that date).
(4B) Where, immediately before a part of a mine becomes abandoned, that part is the only part of the mine not falling to be regarded as abandoned for the time being, the abandonment of that part shall not be regarded for the purposes of subsection (4) or (4A) above as constituting the abandonment of the mine, but only of that part of it.
(6) Nothing in subsection (2) or (3) above prevents the enforcing authority from doing anything by way of remediation under section 78HH below which it could have done apart from that subsection, but the authority shall not be entitled under section 78J below to recover from any person any part of the cost incurred by the authority in doing by way of remediation anything which it is precluded by subsection (2) or (3) above from requiring that person to do.
(7) In this section, "mine" has the same meaning as in the Mines and Quarries Act 1954.'.
57Page 55, line 33, leave out from 'that' to second 'person' in line 34.
58Page 55, leave out lines 36 to 44 and insert:
'(5A) Nothing in subsection (3), (4) or (5) above prevents the enforcing authority from doing anything by way of remediation under section 78HH below which it could have done apart from that subsection, but the authority shall not be entitled under section 78J below to recover from any person any part of the cost incurred by the authority in doing by way of remediation anything which it is precluded by subsection (3), (4) or (5) above from requiring that person to do.

11 Jul 1995 : Column 1510


(6) In this section, "appear" means appear to the enforcing authority, and cognate expressions shall be construed accordingly.'.
59Page 56, line 7, leave out 'this section' and insert 'subsection (1) above'.
60Page 56, line 19, leave out 'this section' and insert 'subsection (1) above'.
61Page 56, line 20, leave out from 'made' to end of line 21 and insert:
'(aa) the cases in which, grounds on which, court or tribunal to which, or person at whose instance, an appeal against a decision of a magistrates' court or sheriff court in pursuance of an appeal under subsection (1) above shall lie; or
(b) the procedure on an appeal under subsection (1) above or on an appeal by virtue of paragraph (aa) above.'.
62Page 56, line 48, at end insert:
'(6) This section, so far as relating to appeals to the Secretary of State, is subject to section 96 of the Environment Act 1995 (delegation or reference of appeals etc).'.
63Page 57, line 4, at end insert:
'(1A) Where the remediation notice in question is one which was required by section 78D(1B) above to state, in relation to the requirement which has not been complied with, the proportion of the cost involved which the person charged with the offence is liable to bear, it shall be a defence for that person to prove that the only reason why he has not complied with the requirement is that one or more of the other persons who are liable to bear a proportion of that cost refused, or was not able, to comply with the requirement.'.
64Page 57, line 12, leave out 'under section 78J(1) (a)' and insert 'by virtue of section 78HH(3) (c)'.
65Page 57, line 24, leave out 'under section 78J(1) (a)' and insert 'by virtue of section 78HH(3) (c)'.
66Page 57, line 24, at end insert:
'(3A) If the enforcing authority is of the opinion that proceedings for an offence under this section would afford an ineffectual remedy against a person who has failed to comply with any of the requirements of a remediation notice which that authority has served on him, that authority may take proceedings in the High Court or, in Scotland, in any court of competent jurisdiction, for the purpose of securing compliance with the remediation notice.'.
67Page 57, leave out lines 36 to 42 and insert:
'Powers of the enforcing authority to carry out remediation.

78HH.—(1) Where this section applies, the enforcing authority shall itself have power, in a case falling within paragraph (a) or (b) of section 78D(1) above, to do what is appropriate by way of remediation to the relevant land or waters.
(2) Subsection (1) above shall not confer power on the enforcing authority to do anything by way of remediation if the authority would, in the particular case, be precluded by section 78S below from serving a remediation notice requiring that thing to be done.
(3) This section applies in each of the following cases, that is to say—
(a) where the enforcing authority considers it necessary to do anything itself by way of remediation for the purpose of preventing the occurrence of any serious harm, or serious pollution of controlled waters, of which there is imminent danger;
(b) where an appropriate person has entered into a written agreement with the enforcing authority for that authority to do, at the cost

11 Jul 1995 : Column 1511

of that person, that which he would otherwise be required to do under this Part by way of remediation;
(c) where a person on whom the enforcing authority serves a remediation notice fails to comply with any of the requirements of the notice;
(d) where the enforcing authority is precluded by section 78EB or 78F above from including something by way of remediation in a remediation notice;
(e) where the enforcing authority considers that, were it to do some particular thing by way of remediation, it would decide, by virtue of subsection (2) of section 78J below or any guidance issued under that subsection,—
(i) not to seek to recover under subsection (1) of that section any of the reasonable cost incurred by it in doing that thing; or
(ii) to seek so to recover only a portion of that cost;
(f) where no person has, after reasonable inquiry, been found who is an appropriate person in relation to any particular thing.
(4) Subject to section 78D(2) and (6) above, for the purposes of this section, the things which it is appropriate for the enforcing authority to do by way of remediation are—
(a) in a case falling within paragraph (a) of subsection (3) above, anything by way of remediation which the enforcing authority considers necessary for the purpose mentioned in that paragraph;
(b) in a case falling within paragraph (b) of that subsection, anything specified in, or determined under, the agreement mentioned in that paragraph;
(c) in a case falling within paragraph (c) of that subsection, anything which the person mentioned in that paragraph was required to do by virtue of the remediation notice;
(d) in a case falling within paragraph (d) of that subsection, anything by way of remediation which the enforcing authority is precluded by section 78EB or 78F above from including in a remediation notice;
(e) in a case falling within paragraph (e) or (f) of that subsection, the particular thing mentioned in the paragraph in question.
(5) In this section "the relevant land or waters" means—
(a) the contaminated land in question;
(b) any controlled waters affected by that land; or
(c) any land adjoining or adjacent to that land or those waters.
Recovery of, and security for, the cost of remediation by the enforcing authority.

78J.—(1) Where, by virtue of section 78HH(3) (a), (c), (e) or (f) above, the enforcing authority does any particular thing by way of remediation, it shall be entitled, subject to sections 78EB(6) and 78F(5A) above, to recover the reasonable cost incurred in doing it from the appropriate person or, if there are two or more appropriate persons in relation to the thing in question, from those persons in proportions determined pursuant to section 78E(5) above.'.
68Page 57, line 46, after 'regard' insert '(a)'.
69Page 57, line 47, at end insert '; and
(b) to any guidance issued by the Secretary of State for the purposes of this subsection.'.
70Page 59, line 30, leave out '78K.—(1)' and insert:

11 Jul 1995 : Column 1512


'78K.—(A1) If, in a case where a local authority has served a remediation notice, the contaminated land in question becomes a special site, the appropriate Agency may adopt the remediation notice and, if it does so,—
(a) it shall give notice of its decision to adopt the remediation notice to the appropriate person and to the local authority;
(b) the remediation notice shall have effect, as from the time at which the appropriate Agency decides to adopt it, as a remediation notice given by that Agency; and
(c) the validity of the remediation notice shall not be affected by—
(i) the contaminated land having become a special site;
(ii) the adoption of the remediation notice by the appropriate Agency; or
(iii) anything in paragraph (b) above.
(A2) Where a local authority has, by virtue of section 78HH above, begun to do any thing, or any series of things, by way of remediation—
(a) the authority may continue doing that thing, or that series of things, by virtue of that section, notwithstanding that the contaminated land in question becomes a special site; and
(b) section 78J above shall apply in relation to the reasonable cost incurred by the authority in doing that thing or those things as if that authority were the enforcing authority.
(1) '.
71Page 59, line 31, leave out 'enter and'.
72Page 59, line 34, leave out from 'that' to 'a' in line 36.
73Page 59, line 36, leave out 'suitable for designation as such' and insert 'land which is required to be designated as such a site'.
74Page 59, line 42, leave out 'site's designation' and insert 'designation of the land in question'.
75Page 59, line 48, leave out 'this Part with respect to special sites' and insert 'subsection (1) or (2) above'.
76Page 60, leave out lines 7 and 8.
77Page 60, line 10, at end insert:
'(cc) remediation statements or remediation declarations prepared and published under section 78EA above;'.
78Page 60, line 13, at end insert:
'(e) notices under subsection (1) (b) or (5) (a) of section 78BB above which have effect by virtue of subsection (7) of that section as the designation of any land as a special site;
(f) notices under subsection (4) (b) of section 78BC above which have effect by virtue of subsection (6) of that section as the designation of any land as a special site;
(g) notices given by or to the enforcing authority under section 78K(2) above terminating the designation of any land as a special site;
(h) notifications given to that authority by persons—
(i) on whom a remediation notice has been served, or
(ii) who are or were required by virtue of section 78EA(7) (a) above to prepare and publish a remediation statement,
of what they claim has been done by them by way of remediation;
(j) notifications given to that authority by owners or occupiers of land—
(i) in respect of which a remediation notice has been served, or

11 Jul 1995 : Column 1513


(ii) in respect of which a remediation statement has been prepared and published,
of what they claim has been done on the land in question by way of remediation;
(k) convictions for such offences under section 78H above as may be prescribed;
(l) such other matters relating to contaminated land as may be prescribed;
but that duty is subject to sections 78LA and 78LB below.
(1A) The form of, and the descriptions of information to be contained in, notifications for the purposes of subsection (1) (h) or (j) above may be prescribed by the Secretary of State.
(1B) No entry made in a register by virtue of subsection (1) (h) or (j) above constitutes a representation by the body maintaining the register or, in a case where the entry is made by virtue of subsection (2B) below, the authority which sent the copy of the particulars in question pursuant to subsection (2) or (2A) below—
(a) that what is stated in the entry to have been done has in fact been done; or
(b) as to the manner in which it has been done.'.
79Page 60, line 18, at end insert:
'(2A) In any case where—
(a) any land is treated by virtue of section 78P(2) below as situated in the area of a local authority other than the local authority in whose area it is in fact situated, and
(b) any particulars relating to that land are entered on the register maintained under this section by the local authority in whose area the land is so treated as situated,
that authority shall send a copy of those particulars to the local authority in whose area the land is in fact situated.
(2B) Where a local authority receives a copy of any particulars sent to it pursuant to subsection (2) or (2A) above, it shall enter those particulars on the register maintained by it under this section.
(2C) Where information of any description is excluded by virtue of section 78LB below from any register maintained under this section, a statement shall be entered in the register indicating the existence of information of that description.'.
80Page 60, line 20, leave out 'them' and insert 'it'.
81Page 60, line 33, at end insert:
'Exclusion from registers of information affecting national security.

78LA.—(1) No information shall be included in a register maintained under section 78L above if and so long as, in the opinion of the Secretary of State, the inclusion in the register of that information, or information of that description, would be contrary to the interests of national security.
(2) The Secretary of State may, for the purpose of securing the exclusion from registers of information to which subsection (1) above applies, give to enforcing authorities directions—
(a) specifying information, or descriptions of information, to be excluded from their registers; or
(b) specifying descriptions of information to be referred to the Secretary of State for his determination;
and no information referred to the Secretary of State in pursuance of paragraph (b) above shall be included in any such register until the Secretary of State determines that it should be so included.
(3) The enforcing authority shall notify the Secretary of State of any information which it excludes from the register in pursuance of directions under subsection (2) above.

11 Jul 1995 : Column 1514


(4) A person may, as respects any information which appears to him to be information to which subsection (1) above may apply, give a notice to the Secretary of State specifying the information and indicating its apparent nature; and, if he does so—
(a) he shall notify the enforcing authority that he has done so; and
(b) no information so notified to the Secretary of State shall be included in any such register until the Secretary of State has determined that it should be so included.
Exclusion from registers of certain confidential information.

78LB.—(1) No information relating to the affairs of any individual or business shall be included in a register maintained under section 78L above, without the consent of that individual or the person for the time being carrying on that business, if and so long as the information—
(a) is, in relation to him, commercially confidential; and
(b) is not required to be included in the register in pursuance of directions under subsection (5) below;
but information is not commercially confidential for the purposes of this section unless it is determined under this section to be so by the enforcing authority or, on appeal, by the Secretary of State.
(2) Where it appears to an enforcing authority that any information which has been obtained by the authority under or by virtue of any provision of this Part might be commercially confidential, the authority shall—
(a) give to the person to whom or whose business it relates notice that that information is required to be included in the register unless excluded under this section; and
(b) give him a reasonable opportunity—
(i) of objecting to the inclusion of the information on the ground that it is commercially confidential; and
(ii) of making representations to the authority for the purpose of justifying any such objection;
and, if any representations are made, the enforcing authority shall, having taken the representations into account, determine whether the information is or is not commercially confidential.
(3) Where, under subsection (2) above, an authority determines that information is not commercially confidential—
(a) the information shall not be entered in the register until the end of the period of twenty-one days beginning with the date on which the determination is notified to the person concerned;
(b) that person may appeal to the Secretary of State against the decision;
and, where an appeal is brought in respect of any information, the information shall not be entered in the register until the end of the period of seven days following the day on which the appeal is finally determined or withdrawn.
(3A) An appeal under subsection (3) above shall, if either party to the appeal so requests or the Secretary of State so decides, take or continue in the form of a hearing (which must be held in private).
(3B) Subsection (10) of section 15 above shall apply in relation to an appeal under subsection (3) above as it applies in relation to an appeal under that section.
(4) Subsection (3) above is subject to section 96 of the Environment Act 1995 (delegation or reference of appeals etc).

11 Jul 1995 : Column 1515


(5) The Secretary of State may give to the enforcing authorities directions as to specified information, or descriptions of information, which the public interest requires to be included in registers maintained under section 78L above notwithstanding that the information may be commercially confidential.
(6) Information excluded from a register shall be treated as ceasing to be commercially confidential for the purposes of this section at the expiry of the period of four years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it may apply to the authority for the information to remain excluded from the register on the ground that it is still commercially confidential and the authority shall determine whether or not that is the case.
(7) Subsections (3) to (4) above shall apply in relation to a determination under subsection (6) above as they apply in relation to a determination under subsection (2) above.
(8) Information is, for the purposes of any determination under this section, commercially confidential, in relation to any individual or person, if its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or person.
(9) For the purposes of subsection (8) above, there shall be disregarded any prejudice to the commercial interests of any individual or person so far as relating only to the value of the contaminated land in question or otherwise to the ownership or occupation of that land.'.
82Page 61, leave out lines 3 to 8 and insert:
'Site-specific guidance by the appropriate Agency concerning contaminated land.

78N.—(1) The appropriate Agency may issue guidance to any local authority with respect to the exercise or performance of the authority's powers or duties under this Part in relation to any particular contaminated land; and in exercising or performing those powers or duties in relation to that land the authority shall have regard to any such guidance so issued.
(1A) If and to the extent that any guidance issued under subsection (1) above to a local authority is inconsistent with any guidance issued under this Part by the Secretary of State, the local authority shall disregard the guidance under that subsection.'.
83Page 61, line 20, at end insert:
' The appropriate Agency to have regard to guidance given by the Secretary of State.

78NN.—(1) The Secretary of State may issue guidance to the appropriate Agency with respect to the exercise or performance of that Agency's powers or duties under this Part; and in exercising or performing those powers or duties the appropriate Agency shall have regard to any such guidance so issued.
(2) The duty imposed on the appropriate Agency by subsection (1) above is without prejudice to any duty imposed by any other provision of this Part on that Agency to act in accordance with guidance issued by the Secretary of State.'.
84Page 62, leave out lines 7 to 17 and insert:
'(3) A person acting in a relevant capacity—
(a) shall not thereby be personally liable, under this Part, to bear the whole or any part of the cost of doing any thing by way of remediation, unless that thing is to any extent referable to substances whose presence in, on or under the contaminated land in question is a result of any act done or omission made by him which it was unreasonable for a person acting in that capacity to do or make; and
(b) shall not thereby be guilty of an offence under or by virtue of section 78H above unless the requirement which has not been complied with is a requirement

11 Jul 1995 : Column 1516

to do some particular thing for which he is personally liable to bear the whole or any part of the cost.
(3A) In subsection (3) above, "person acting in a relevant capacity" means—
(a) a person acting as an insolvency practitioner, within the meaning of section 388 of the Insolvency Act 1986 (including that section as it applies in relation to an insolvent partnership by virtue of any order made under section 421 of that Act);
(b) the official receiver acting in a capacity in which he would regarded as acting as an insolvency practitioner within the meaning of section 388 of the Insolvency Act 1986 if subsection (5) of that section were disregarded;
(c) the official receiver acting as receiver or manager;
(d) a person acting as a special manager under section 177 or 370 of the Insolvency Act 1986;
(e) the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the Bankruptcy (Scotland) Act 1985);
(f) a person acting as a receiver or receiver and manager—
(i) under or by virtue of any enactment; or
(ii) by virtue of his appointment as such by an order of a court or by any other instrument.'.
85Page 62, line 45, after '78E(4)' insert 'or (5)'.
86Page 63, line 12, at end insert:
'Interaction of this Part with other enactments.

78S.—(1) A remediation notice shall not be served if and to the extent that it appears to the enforcing authority that the powers of the appropriate Agency under section 27 above may be exercised in relation to—
(a) the significant harm (if any), and
(b) the pollution of controlled waters (if any),
by reason of which the contaminated land in question is such land.
(2) Nothing in this Part shall apply in relation to any land in respect of which there is for the time being in force a site licence under Part II above, except to the extent that any significant harm, or pollution of controlled waters, by reason of which that land would otherwise fall to be regarded as contaminated land is attributable to causes other than—
(a) breach of the conditions of the licence; or
(b) the carrying on, in accordance with the conditions of the licence, of any activity authorised by the licence.
(3) If, in a case falling within subsection (1) or (7) of section 59 above, the land in question is contaminated land, or becomes such land by reason of the deposit of the controlled waste in question, a remediation notice shall not be served in respect of that land by reason of that waste or any consequences of its deposit, if and to the extent that it appears to the enforcing authority that the powers of a waste regulation authority or waste collection authority under that section may be exercised in relation to that waste or the consequences of its deposit.
(4) No remediation notice shall require a person to do anything the effect of which would be to impede or prevent the making of a discharge in pursuance of a consent given under Chapter II of Part III of the Water Resources Act 1991 (pollution offences) or, in relation to Scotland, in pursuance of a consent given under Part II of the Control of Pollution Act 1974.
This Part and radioactivity.

78T. Except as provided by regulations, nothing in this Part applies in relation to harm, or pollution of controlled waters, so far as attributable to any radioactivity possessed by any substance; but regulations may—

11 Jul 1995 : Column 1517


(a) provide for prescribed provisions of this Part to have effect with such modifications as the Secretary of State considers appropriate for the purpose of dealing with harm, or pollution of controlled waters, so far as attributable to any radioactivity possessed by any substances; or
(b) make such modifications of the Radioactive Substances Act 1993 or any other Act as the Secretary of State considers appropriate.".'.

Earl Ferrers: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 36 to 86 en bloc. I have already spoken to these amendments.

Moved, That the House do agree with the Commons in their Amendments Nos. 36 to 86 en bloc.—(Earl Ferrers.)

On Question, Motion agreed to.


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