Baroness Hanwell: My Lords, as the noble Earl spoke to Commons Amendment No. 295 and perhaps anticipated what I might say in moving Amendment No. 295A, it may be convenient for me to place on record the anxieties that underlie my amendment. When we come to it, it may not be necessary for me to move it, but it is appropriate that my concerns are on record.
Following a serious pollution incident, discharge consents, setting limits on the amount of certain named substances allowed into rivers and coastal waters, have recently been reviewed as to their content. It had been understood that discharge consents only authorised the discharge of substances that could reasonably be expected to be present in the specific effluent, and that the consent would not provide a defence if pollution was caused by other substances not mentioned in the consent. As I say, the efficacy of that system recently came into doubt. It is not just a matter of action by the NRA or, as it will be, of the environment agency. There is concern that there would be difficulty for people who are affected to pursue damage claims in the civil courts in that situation.
To clarify the position I was concerned to ensure that Ministers used their powers of direction to restore adequate environmental protection and give your Lordships and those concerned outside this place clear assurance that the issue will be progressed satisfactorily and river quality restored. I believe that that adequately puts on record the concerns that underlie my amendment.
On Question, Motion agreed to.
11 Jul 1995 : Column 1634
"Notices requiring persons to carry out anti-pollution operations.
251Schedule 18, page 208, line 50, leave out 'and (k)' and insert:
'(k) works notices under section 46A of this Act;
(l) appeals under section 46B of this Act;
(m) convictions for offences under section 46C of this Act; and
252Page 211, line 39, after '(1)' insert:
'(i) at the beginning there shall be inserted the words "Subject to subsection (1B) below,"; and
253Page 211, line 46, at end insert:
'(1B) Without prejudice to the power of SEPA to carry out investigations under subsection (1A) above, the power conferred by subsection (1) above to carry out operations shall be exercisable only in a case where
(a) SEPA considers it necessary to carry out forthwith any operations falling within paragraph (a) or (b) of subsection (1) above; or
(b) it appears to SEPA, after reasonable inquiry, that no person can be found on whom to serve a works notice under section 46A of this Act.".'.
254Page 211, line 49, after '(3) (b)' insert '(i)'.
255Page 211, line 50, at end insert & and
(ii) after the words "an abandoned mine" there shall be inserted the words "or an abandoned part of a mine";'.
256Page 211, line 52, leave out 'if the mine in question became an abandoned mine' and insert 'to the owner or former operator of any mine or part of a mine if the mine or part in question became abandoned'.
257Page 211, line 53, at end insert:
'(3B) Subsections (4A) and (4B) of section 30J above shall apply in relation to subsections (3) and (3A) above as they apply in relation to subsections (3) and (4) of that section."
( ) After section 46 there shall be inserted the following sections
46A.(1) Subject to the following provisions of this section, where it appears to SEPA 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, SEPA shall be entitled to serve a works notice 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 is likely, in the opinion of SEPA, to enter any controlled waters; or
(b) caused or knowingly permitted the matter in question to be present in any controlled waters.
(2) For the purposes of this section, a "works notice" is a notice requiring the person on whom it is served to carry out such of the following operations as may be specified in the notice, that is to say
(a) in a case where the matter in question appears likely to enter any controlled waters, 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, operations for the purpose
(i) of removing or disposing of the matter;
11 Jul 1995 : Column 1635
(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.
(3) A works notice
(a) must specify the periods within which the person on whom it is served is required to do each of the things specified in the notice; and
(b) is without prejudice to the powers of SEPA by virtue of section 46(1B) (a) of this Act.
(4) Before serving a works notice on any person, SEPA shall reasonably endeavour to consult that person concerning the operations which are to be specified in the notice.
(5) The Secretary of State may by regulations make provision for or in connection with
(a) the form or content of works notices;
(aa) requirements for consultation, before the service of a works notice, with persons other than the person on whom that notice is to be served;
(b) steps to be taken for the purposes of any consultation required under subsection (4) above or regulations made by virtue of paragraph (aa) above;
(c) any other steps of a procedural nature which are to be taken in connection with, or in consequence of, the service of a works notice.
(5A) A works notice shall not be regarded as invalid, or as invalidly served, by reason only of any failure to comply with the requirements of subsection (4) above or of regulations made by virtue of paragraph (aa) of subsection (5) above.
(6) Nothing in subsection (1) above shall entitle SEPA to require the carrying out of any operations which would impede or prevent the making of any discharge in pursuance of a consent given by SEPA by virtue of section 34 of this Act.
(7) No works notice shall be served on any person requiring him to carry out any operations in respect of water from an abandoned mine or an abandoned part of a mine which that person permitted to reach such a place as is mentioned in subsection (1) (a) above or to enter any controlled waters.
(8) Subsection (7) 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.
(9) Subsections (4A) and (4B) of section 30J of this Act shall apply in relation to subsections (7) and (8) above as they apply in relation to subsections (3) and (4) of that section.
(10) Where SEPA
(a) carries out any such investigations as are mentioned in section 46(1A) of this Act, and
(b) serves a works notice on a person in connection with the matter to which the investigations relate,
it shall (unless the notice is quashed or withdrawn) be entitled to recover the costs or expenses reasonably incurred in carrying out those investigations from that person.
(11) The Secretary of State may, if he thinks fit in relation to any person, give directions to SEPA as to whether or how it should exercise its powers under this section.
11 Jul 1995 : Column 1636
Grant of, and compensation for, rights of entry etc.
46AA.(1) A works notice may require a person to carry out operations in relation to any land or waters notwithstanding that he is not entitled to carry out those operations.
(2) Any person whose consent is required before any operations required by a works notice may be carried out shall grant, or join in granting, such rights in relation to any land or waters as will enable the person on whom the works notice is served to comply with any requirements imposed by the works notice.
(3) Before serving a works notice, SEPA shall reasonably endeavour to consult every person who appears to it
(a) to be the owner or occupier of any relevant land, 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) A works notice shall not be regarded as invalid, or as invalidly served, by reason only of any failure to comply with the requirements of subsection (3) above.
(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 person on whom the works notice in question is served 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 of the Environmental Protection Act 1990 in relation to compensation under that section.
(7) In this section
"relevant land" means
(a) any land or waters in relation to which the works notice in question requires, or may require, operations to be carried out; or
(b) any land adjoining or adjacent to that land or those waters;
"works notice" means a works notice under section 46A of this Act.
Appeals against works notices.
46B.(1) A person on whom a works 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.
(2) On any appeal under this section the Secretary of State
(a) shall quash the notice, if he is satisfied that there is a material defect in the notice; but
(b) subject to that, may confirm the notice, with or without modification, or quash it.
(3) The Secretary of State may by regulations 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.
(4) Regulations under subsection (3) above may (among other things)
11 Jul 1995 : Column 1637
(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 works 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 works notice against which he is appealing;
(d) prescribe the cases in which the appellant may claim that a works notice should have been served on some other person and prescribe the procedure to be followed in those cases;
(e) make provision 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; or
(iii) the abandonment of an appeal.
(5) In this section "works notice" means a works notice under section 46A of this Act.
(6) This section is subject to section 96 of the Environment Act 1995 (delegation or reference of appeals).
Consequences of not complying with a works notice.
46C.(1) If a person on whom SEPA serves a works notice fails to comply with any of the requirements of the notice, he shall be guilty of an offence.
(2) A person who commits an offence under subsection (1) above shall be liable
(a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding £20,000 or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
(3) If a person on whom a works notice has been served fails to comply with any of the requirements of the notice, SEPA may do what that person was required to do and may recover from him any costs or expenses reasonably incurred by SEPA in doing it.
(4) If SEPA is of the opinion that proceedings for an offence under subsection (1) above would afford an ineffectual remedy against a person who has failed to comply with the requirements of a works notice, SEPA may take proceedings in any court of competent jurisdiction for the purpose of securing compliance with the notice.
(5) In this section "works notice" means a works notice under section 46A of this Act.".'.
258Page 212, line 34, at end insert:
'( ) If SEPA is of the opinion that proceedings for an offence under subsection (3) above would afford an ineffectual remedy against a person who has failed to comply with the requirements of an enforcement notice, SEPA may take proceedings in any court of competent jurisdiction for the purpose of securing compliance with the notice.'.
259Page 213, line 21, at end insert:
'( ) In section 56(1) (interpretation of Part II), the following definition shall be inserted in the appropriate place in alphabetical order
""operations" includes works;".'.
260Page 215, line 42, at end insert:
'The Local Government (Miscellaneous Provisions) Act 1976
11 Jul 1995 : Column 1638
28A. In section 44 of the Local Government (Miscellaneous Provisions) Act 1976 (interpretation of Part I of that Act) after subsection (1A) (certain provisions of that Act, including section 16 (obtaining information about land), to have effect as if the Broads Authority were a local authority) there shall be inserted
"(1B) Section 16 of this Act shall have effect as if the Environment Agency were a local authority.".'.
Earl Ferrers: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 251 to 260.
Moved, That the House do agree with the Commons in their Amendments Nos. 251 to 260.(Earl Ferrers.)
On Question, Motion agreed to.