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COMMONS AMENDMENTS
269Schedule 18, page 224, line 30, at end insert:
'. After section 35 of that Act there shall be inserted—

"Compensation where rights granted pursuant to section 35(4) or 38(9A).

35A.—(1) This section applies in any case where—
(a) the holder of a licence is required—
(i) by the conditions of the licence; or
(ii) by a requirement imposed under section 38(9) below,
to carry out any works or do any other thing which he is not entitled to carry out or do;
(b) a person whose consent would be required has, pursuant to the requirements of section 35(4) above or 38(9A) below, granted, or joined in granting, to the holder of the licence any rights in relation to any land; and
(c) those rights, or those rights together with other rights, are such as will enable the holder of the licence to comply with any requirements imposed on him by the licence or, as the case may be, under section 38(9) below.
(2) In a case where this section applies, any person who has granted, or joined in granting, the rights in question shall be entitled to be paid compensation under this section by the holder of the licence.

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(3) The Secretary of State shall by regulations provide for the descriptions of loss and damage for which compensation is payable under this section.
(4) The Secretary of State may by regulations—
(a) provide for the basis on which any amount to be paid by way of compensation under this section is to be assessed;
(b) without prejudice to the generality of subsection (3) and paragraph (a) above, provide for compensation under this section to be payable in respect of—
(i) any effect of any rights being granted, or
(ii) any consequence of the exercise of any rights which have been granted;
(c) provide for the times at which any entitlement to compensation under this section is to arise or at which any such compensation is to become payable;
(d) provide for the persons or bodies by whom, and the manner in which, any dispute—
(i) as to whether any, and (if so) how much and when, compensation under this section is payable; or
(ii) as to the person to or by whom it shall be paid,
is to be determined;
(e) provide for when or how applications may be made for compensation under this section;
(f) without prejudice to the generality of paragraph (d) above, provide for when or how applications may be made for the determination of any such disputes as are mentioned in that paragraph;
(g) without prejudice to the generality of paragraphs (e) and (f) above, prescribe the form in which any such applications as are mentioned in those paragraphs are to be made;
(h) make provision similar to any provision made by paragraph 8 of Schedule 19 to the Water Resources Act 1991;
(j) make different provision for different cases, including different provision in relation to different persons or circumstances;
(k) include such incidental, supplemental, consequential or transitional provision as the Secretary of State considers appropriate.".'.
270Page 226, line 7, at end insert:
'(14) This section shall have effect subject to section 36A below."
. After section 36 of that Act there shall be inserted—
"Consultation before the grant of certain licences.

36A.—(1) This section applies where an application for a licence has been duly made to a waste regulation authority, and the authority proposes to issue a licence subject (by virtue of section 35(4) above) to any condition which might require the holder of the licence to—
(a) carry out any works, or
(b) do any other thing,
which he might not be entitled to carry out or do.
(2) Before issuing the licence, the waste regulation authority shall serve on every person appearing to the authority to be a person falling within subsection (3) below a notice which complies with the requirements set out in subsection (4) below.
(3) A person falls within this subsection if—
(a) he is the owner, lessee or occupier of any land; and

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(b) that land is land in relation to which it is likely that, as a consequence of the licence being issued subject to the condition in question, rights will have to be granted by virtue of section 35(4) above to the holder of the licence.
(4) A notice served under subsection (2) above shall—
(a) set out the condition in question;
(b) indicate the nature of the works or other things which that condition might require the holder of the licence to carry out or do; and
(c) specify the date by which, and the manner in which, any representations relating to the condition or its possible effects are to be made to the waste regulation authority by the person on whom the notice is served.
(5) The date which, pursuant to subsection (4) (c) above, is specified in a notice shall be a date not earlier than the date on which expires the period—
(a) beginning with the date on which the notice is served, and
(b) of such length as may be prescribed in regulations made by the Secretary of State.
(6) Before the waste regulation authority issues the licence it must, subject to subsection (7) below, consider any representations made in relation to the condition in question, or its possible effects, by any person on whom a notice has been served under subsection (2) above.
(7) Subsection (6) above does not require the waste regulation authority to consider any representations made by a person after the date specified in the notice served on him under subsection (2) above as the date by which his representations in relation to the condition or its possible effects are to be made.
(8) In subsection (3) above—
"owner", in relation to any land in England and Wales, means the person who—
(a) is for the time being receiving the rack-rent of the land, whether on his own account or as agent or trustee for another person; or
(b) would receive the rack-rent if the land were let at a rack-rent,
but does not include a mortgagee not in possession; and
"owner", in relation to any land in Scotland, means a person (other than a creditor in a heritable security not in possession of the security subjects) for the time being entitled to receive or who would, if the land were let, be entitled to receive, the rents of the land in connection with which the word is used and includes a trustee, factor, guardian or curator and in the case of public or municipal land includes the persons to whom the management of the land is entrusted.".'.
271Page 226, line 14, at end insert:
'(3) After subsection (6) of that section (cases where an application for modification is deemed to have been rejected) there shall be added—
"(7) This section shall have effect subject to section 37A below."
. After section 37 of that Act there shall be inserted—
"Consultation before certain variations.

37A.—(1) This section applies where—
(a) a waste regulation authority proposes to modify a licence under section 37(1) or (2) (a) above; and

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(b) the licence, if modified as proposed, would be subject to a relevant new condition.
(2) For the purposes of this section, a "relevant new condition" is any condition by virtue of which the holder of the licence might be required to carry out any works or do any other thing—
(a) which he might not be entitled to carry out or do, and
(b) which he could not be required to carry out or do by virtue of the conditions to which, prior to the modification, the licence is subject.
(3) Before modifying the licence, the waste regulation authority shall serve on every person appearing to the authority to be a person falling within subsection (4) below a notice which complies with the requirements set out in subsection (5) below.
(4) A person falls within this subsection if—
(a) he is the owner, lessee or occupier of any land; and
(b) that land is land in relation to which it is likely that, as a consequence of the licence being modified so as to be subject to the relevant new condition in question, rights will have to be granted by virtue of section 35(4) above to the holder of the licence.
(5) A notice served under subsection (3) above shall—
(a) set out the relevant new condition in question;
(b) indicate the nature of the works or other things which that condition might require the holder of the licence to carry out or do but which he could not be required to carry out or do by virtue of the conditions (if any) to which, prior to the modification, the licence is subject; and
(c) specify the date by which, and the manner in which, any representations relating to the condition or its possible effects are to be made to the waste regulation authority by the person on whom the notice is served.
(6) The date which, pursuant to subsection (5) (c) above, is specified in a notice shall be a date not earlier than the date on which expires the period—
(a) beginning with the date on which the notice is served, and
(b) of such length as may be prescribed in regulations made by the Secretary of State.
(7) Before the waste regulation authority issues the licence it must, subject to subsection (8) below, consider any representations made in relation to the condition in question, or its possible effects, by any person on whom a notice has been served under subsection (3) above.
(8) Subsection (7) above does not require the waste regulation authority to consider any representations made by a person after the date specified in the notice served on him under subsection (3) above as the date by which his representations in relation to the condition or its possible effects are to be made.
(9) A waste regulation authority may postpone the service of any notice or the consideration of any representations required under the foregoing provisions of this section so far as the authority considers that by reason of an emergency it is appropriate to do so.
(10) In subsection (3) above, "owner" has the same meaning as it has in subsection (3) of section 36A above by virtue of subsection (8) of that section.".'.
272Page 226, line 16, leave out '(12)' and insert '(9) (power to require certain measures to be taken where licence suspended) there shall be inserted—
"(9A) A requirement imposed under subsection (9) above may require the holder of a licence to carry out

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works or do other things notwithstanding that he is not entitled to carry out the works or do the thing and any person whose consent would be required shall grant, or join in granting, the holder of the licence such rights in relation to the land as will enable the holder of the licence to comply with any requirements imposed on him under that subsection.
(9B) Subsections (2) to (8) of section 36A above shall, with the necessary modifications, apply where the authority proposes to impose a requirement under subsection (9) above which may require the holder of a licence to carry out any such works or do any such thing as is mentioned in subsection (9A) above as they apply where the authority proposes to issue a licence subject to any such condition as is mentioned in subsection (1) of that section, but as if—
(a) the reference in subsection (3) of that section to section 35(4) above were a reference to subsection (9A) above; and
(b) any reference in those subsections—
(i) to the condition, or the condition in question, were a reference to the requirement; and
(ii) to issuing a licence were a reference to serving a notice, under subsection (12) below, effecting the requirement.
(9C) The authority may postpone the service of any notice or the consideration of any representations required under section 36A above, as applied by subsection (9B) above, so far as the authority considers that by reason of an emergency it is appropriate to do so."
(2) After subsection (12) of that section (revocations and suspensions etc. to be effected by service of notice)'.

The Earl of Lindsay: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 269 to 272.

Amendments Nos. 269 to 272 deal with an issue that was raised by the noble Earl, Lord Lytton, and my noble friend Lord Stanley during our Committee and Report stages and concern the requirement for landowners, and others with an interest in land, to grant rights under Section 35(4) of the Environmental Protection Act. Section 35(4) provides that where a waste management licence holder requires rights over land in order to comply with a condition in his licence, any person whose consent would be required must grant him the rights to enable him to comply with those conditions. Section 35(4) makes no provision for consulting those who might have to grant such rights when the licence condition is imposed or for compensating them for any loss or damage caused. We have carried out a consultation with interested parties and it confirmed the view that Section 35(4) provides inadequate safeguards for those required to grant rights under its provisions. Hence Amendments Nos. 269 to 272.

Amendment No. 269 makes provision for the payment of compensation by the holder of the relevant waste management licence to anyone who is required to grant rights under Section 35(4) of the 1990 Act. Compensation is payable for loss or damage, but the detailed arrangements for determining the amount of compensation, including provision for resolving any disputes, are to be prescribed by regulations.

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Amendment No. 270 would modify the operation of Section 36 of the 1990 Act by placing a duty on waste regulation authorities—in future the agency—to notify those likely to be required to grant rights under Section 35(4) as a result of a condition which they propose imposing on a waste management licence when the licence is first issued.

Amendment No. 271 makes similar provision in relation to the modification of licence conditions under Section 37 of the 1990 Act, but with the additional safeguard that where the licence is being modified in an emergency, the waste regulation authority would be able to postpone the consultation.

Finally, Amendment No. 272 would amend Section 38(9) of the 1990 Act, which enables a waste regulation authority in suspending a waste management licence (or subsequently) to require measures to be taken to deal with or avert pollution. I commend the amendments to your Lordships.

Moved, That the House do agree with the Commons in their Amendments Nos. 269 to 272 en bloc.—(The Earl of Lindsay.)

On Question, Motion agreed to.

9.30 p.m.


COMMONS AMENDMENTS
273Schedule 18, page 231, leave out lines 8 to 13 and insert:
'"(1A) No matter shall constitute a statutory nuisance to the extent that it consists of, or is caused by, any land being in a contaminated state.
(1B) Land is in a "contaminated state" for the purposes of subsection (1A) above if, and only if, it is in such a condition, by reason of substances in, on or under the land, that—
(a) harm is being caused or there is a possibility of harm being caused; or
(b) pollution of controlled waters is being, or is likely to be, caused;
and in this subsection "harm", "pollution of controlled waters" and "substance" have the same meaning as in Part IIA of this Act.".'.
274Page 232, line 11, leave out 'Subject to sub-paragraph (5) below,'.
275Page 232, leave out lines 21 to 27.

Earl Ferrers: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 273 to 275 en bloc.

Moved, That the House do agree with the Commons in their Amendments Nos. 273 to 275 en bloc.—(Earl Ferrers.)

On Question, Motion agreed to.


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