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Baroness Hamwee: My Lords, I support the amendments. I am grateful to the noble Lord for having tabled them. I find some of the concepts contained in the paragraph difficult. English law does not normally recognise the transfer of a liability. It is something the Americans go in for, but the English by and large do not. I accept that this is not the same as attempting to transfer a liability under a contract, for instance, but, nevertheless, there is a culture which has affected the development of the law in this country.
The noble Earl, Lord Lytton, referred to the national conditions of sale. It might be appropriate to allow the customs of sale and purchase of land to take account of the new legislation, and for the provisions to come into effect from a specified date after the Act comes into force so that the provision would not be retrospective, something with which the practitioners would have little way of dealing as a matter of normal course.
Finally, if the noble Lord, Lord Northbourne, brings the matter back on Third Reading, he may like to think not retrospectively but prospectively of some type of long-stop some long period of time after which some of these provisions may not bite.
First, they would remove the liability which would fall under the existing provisions to the current owner or occupier where the original polluter could not be found. That would be a clear departure from the existing position under the statutory nuisance provisions in Section 80 of Part III of the Environmental Protection Act 1990 and under the caveat emptor rule at common law. It would therefore introduce a new exemption from liability for those groups.
My noble friend Lord Stanley of Alderley should refresh his memory as to what Section 80 of Part III of the Environmental Protection Act 1990 provides, because if he did so he would understand that there is an existing liability on owners.
As I have already said in my response to my noble friend Lord Stanley's amendment on liabilities arising from fly-tipping, we are going to restore the existing exemption that the innocent victims of fly-tipping enjoy currently. But the effect of the present amendment in practice would be either that there would be no means of dealing with significant harm in some instances, or it would require the public pursethe taxpayerto pay to improve the condition of land not currently suitable for the use to which owners are putting it. That would give those owners significant, uncovenanted gains. I do not believe that that would be justified. It is a long-established principle that owners are responsible for the condition of their land, and I believe that that should continue.
My noble friend Lord Stanley and the noble Lord, Lord Northbourne, asked me about the position where the polluter cannot afford to pay. That would not imply that any responsibility would pass to the owner. That would happen only where the polluter could not be found. That might include the case of a company having gone into liquidation. We are considering possible anti-avoidance measures to prevent that route being taken deliberately to avoid liabilities.
The noble Lord, Lord Northbourne, cited also a coal mine in Kent. I am afraid that I do not know the details of the ownership of that coal mine, but where liability as a polluter lay with British Coal, if it did, it would pass to the latter's successors in title; that is, from British Coal to any successor body, which would normally assume its liabilities with its functions. It was not the Government's intention to create new categories of potential liabilities. However, one area in which that may have been breached is in the case of liabilities arising under these provisions solely as a result of water
The second aspect of Amendment No. 144K seeks to change the way in which responsibility might transfer from the original polluter to the current owner or occupier. In our debate in Committee, I suggested that that was an area which the Government wished to consider in more detail before bringing forward their own amendments. I can now set out in some more detail the position which the Government believe ought to be reached.
There must, we feel, be some manner of proof that a transfer of responsibilities has taken place. There should be something more than just an assumption that that has happened, relying solely on the principle of caveat emptor. But that leaves the difficult question of whether such a transfer needs to have been provided for expressly in a sale contract. This would, of course, be the effect of these amendments. This is particularly an issue with respect to sales of land which have already taken place. We would expect that, as a matter of good legal practice, future contracts would address this question directly where it is likely to be an issue.
On balance, we believe that there should not be a need for "express" provisions if this is interpreted as an "express" reference to liability for contaminated land rather than as a reference to liabilities arising from the ownership of land. If the terms of an individual contract can be construed as bringing about a transfer of all burdens and responsibilities there does not appear to be any reason why responsibilities associated with contamination need be assumed to have been excluded. Owners are only too happy to accept benefits associated with their land which they had not anticipated at the time of their purchase. We can see no real reason why responsibilities should be treated any differently. On this basis, I would not wish to accept these amendments.
Amendment No. 150A, which was spoken to by the noble Lord, Lord Northbourne, seeks to introduce three specific grounds of appeal against the receipt of a remediation notice. The first of these grounds of appeal would be on the grounds that the "best practicable means" had been used to prevent or counteract the effects of the contamination. Despite a superficial reasonableness, a defence along these lines would run clearly against the polluter pays principle. The Government see no reason to depart from this general principle, which is widely accepted both nationally and internationally, and to pass the costs of remediation on to the taxpayers, who had no chance at all of preventing the contamination occurring.
In practice, the existence of a provision of this kind would tie up almost any attempt to secure remediation in detailed litigation on what precisely had been the supposed best practicable means available at some time in the past. This would be particularly difficult to ascertain where there had been consecutive contaminating activities on a site.
The issue of this ground of appeal and defence to prosecution may be clouded somewhat by comparison with the defence available under the statutory nuisance provisions. In that regime, "best practicable means" is available in some cases as a defence against prosecution for non-compliance, or partial compliance, with the requirements of an abatement notice. It would not preclude the service of such a notice in the first place, as would be suggested by the current amendment. The spirit of the statutory nuisance defence is already implied in the structure of remediation notices under the contaminated land provisions. The requirements of a notice have to be "reasonable", and we also intend that there should be a ground of appeal on the basis that a requirement is unreasonable.
The second suggested ground of appeal is that of having neither caused nor knowingly permitted the contaminating substances to be in, on or under the land. That would totally disable the provisions passing responsibility to site owners or occupiers where the polluters cannot be found or where responsibilities have been transferred. For the reasons discussed earlier in the debate, the Government would not see that as justified.
The third suggested ground of appeal is that the person could not have reasonably foreseen that the land would become contaminated land. That raises all the difficulties present in the best practicable means defence, in terms of allowing polluters to evade responsibility for their actions and opening up the possibility of excessive litigation. For these reasons, the Government would not accept it. It would also be unworkable as it would be extremely difficult to ascertain whether any particular "harm" arising was reasonably foreseeable and at what point in time the test should be applied where there were a number of contaminants deposited at different times on the site.
That suggested ground of appeal raises difficult questions of comparison with the common law, where the "reasonable foreseeability" test must be satisfied in relation to damage suffered for certain tortious actions. However, the comparison is not apt. Common law actions seek to provide compensation to private parties for specific damage which has occurred. The test of "reasonable foreseeability" relates directly to the question of whether that specific damage was foreseeable. The statutory regulatory regime that we are discussing today is not seeking to provide compensation to individuals, nor is it necessarily tied to specific damage which has occurred. Instead, it is aimed at ensuring that harm to health and the environment can be prevented. For these reasons, the Government believe that there is no necessity for the same manner of provisions to be available.
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