Recovery of Expenses by Charging Order

Schedule 2C – in the House of Commons at 6:45 pm on 28th June 1995.

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  1. 1. —Where under section 78N a local authority in Scotland has incurred expenses in relation to a remediation carried out by it, it may make in favour of itself an order (in this Schedule referred to as a 'charging order') providing and declaring that the premises affected by the remediation is thereby charged and burdened with an annuity to pay the amount of the expenses.
  2. 2. —The annuity charged shall be such sum not exceeding such sum as may be prescribed, as the local authority may determine for every £100 of the said amount and so in proportion for any less sum, and shall commence from the date of the order and be payable for a term of five years to the local authority.
  3. 3. —A charging order shall be in such form as may be prescribed and shall be recorded in the General Register of Sasines or registered in the Land Register, as the case may be.
  4. 4. —Every annuity constituting a charge by a charging order duly recorded in the General Register of Sasines or registered in the Land Register, as the case may be, shall be a charge on the premises specified in the order and shall have priority over—
    1. (a) all future burdens and incumbrances on the same land, and
    2. (b) all existing burdens and incumbrances thereon except—
      1. (i) feuduties, teinds, ground annuals, stipends and standard charges in lieu of stipends;
      2. (ii) any charges created or arising under any local Act authorising a charge for recovery of expenses incurred by a local authority, or under this Schedule; and
      3. (iii) any charge created under any Act authorising advances of public money.
  5. 5. —A charging order duly recorded in the General Register of Sasines or registered in the Land Register, as the case may be, shall be conclusive evidence that the charge specified therein has been duly created in respect of the premises specified in the order.
  6. 6. —Every annuity charged by a charging order may be recovered by the person for the time being entitled to it by the same means and in the like manner in all respects as if it were a feuduty.
  7. 7. —A charging order and all sums payable thereunder may be from time to time transferred in like manner as a bond and disposition in security and sums payable thereunder.
  8. 8. —Any owner of, or other person interested in, premises on which an annuity has been charged by any such charging order shall at any time be at liberty to redeem the annuity on payment to the local authority or other person entitled thereto of such sum as may be agreed upon or, in default of agreement, determined by the Secretary of State.".'.

Photo of Mr Archy Kirkwood Mr Archy Kirkwood Liberal Democrat Chief Whip

Amendment No. 264 relates to an important part of the Bill and deals with the vexed question of contaminated land. It is a very broad subject and it is right that the House should spend some time examining it at this stage in the proceedings. However, the amendment can be dealt with expeditiously.

Amendment No. 264 in fact relates only to part of the problem of contaminated land. It seeks to ensure that the provisions that have already, and perfectly properly, been included in the Bill for the control of landfill sites differentiate between pieces of contaminated land on the basis of scale.

When landfill is being used as a method for the disposal of waste, it is right that there should be full-blown controls with proper inspection and registration fees. It is quite proper that, when large-scale sites are being used in that way, the necessary panoply of bureaucracy exists to ensure that the proper controls and procedures are put into effect and that the rules and regulations are observed.

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I am sure that my part of south-east Scotland is not exceptional in this respect and that people in other parts of Scotland and the United Kingdom do the same, but some of my constituents have been able to make efficient use, on an informal basis, of small-scale sites for the disposal of some waste. For example, farmers may have small quarries or areas of land which have no agricultural use but which are appropriate for the disposal of, for example, building rubble and other inoffensive, non-noxious, non-dangerous waste. The arrangement has suited both parties to the agreement very well.

Farmers can get a small income from land that would otherwise be of no use, and small local firms—I am thinking of two-men businesses such as plastering and joining firms and the like—can have ready and cheap access to a method of getting rid of a few lorryloads of inoffensive building material. That practice has developed over recent years. It is now well understood and has been very satisfactory, certainly in south-east Scotland.

My fear is that the provisions, relating also to large-scale sites, will be counter-productive to the extent that they will impose fees and a regime of control that is so heavy-handed that it will make small-scale sites prohibitively expensive for local builders and others who make use of them. It is not sensible that that situation should be allowed to develop by default.

I suspect that, in their quite proper enthusiasm to ensure that disposal sites are properly regulated, the Government have overlooked the circumstances that I have described. I therefore think that the Government should consider carefully whether they are taking a sledgehammer to crack a nut and whether they will in fact end up encouraging more rather than less fly-tipping in the rural areas of Scotland and elsewhere.

If, as is proposed, small businesses with a little rubble to dispose of are charged relatively extortionate fees for access to fully regulated sites, they will inevitably take the law into their own hands. I do not condone it, but people will throw lorryloads of inoffensive, non-noxious rubble down riverbanks, along the roadside and in other readily accessible places. It is in no one's interest that that should happen.

At this late stage in the passage of the Bill, I make a plea for the Government again to consider carefully whether a sensible cut-off point at which an exemption can cut in can he found and thus allow for a lower level of control for small landfill sites. We can argue about the level at which exemptions should apply. If the Government are prepared to countenance the principle, I am sure that the detail can be resolved through sensible consultation. I am certain that, if no exemptions are made and the facilities cannot be used in an accessible and reasonably affordable way, the provisions will be counter-productive in the long term, and I hope that the Government will consider exempting small landfill sites as the amendment suggests.

Photo of Joan Ruddock Joan Ruddock , Lewisham, Deptford

For the convenience of the House I shall speak briefly to amendments Nos. 120, 121 and 122.

Clause 56 inserts section 78G into the Environmental Protection Act 1990 and requires the enforcing authority to consult before serving a remediation notice and reasonably to endeavour to consult the appropriate person—the owner or any occupier. It also requires that three months' grace be given before a notice is served, to allow the owner to come up with his own scheme.

In Committee, we made much of that three-month delay. The Government will know that we opposed it, but none the less it remains in the Bill. We remain concerned and we want the House to be aware that the enforcing authority is thus prevented from securing the expeditious remediation of land through a remediation notice. Furthermore, disputes could occur and lengthen that three-month period. We are worried that the enforcing authority would not be able to act in cases where it might be important and somewhat urgent for it to do so.

The Minister has already put it on record that there is provision for dealing with real emergencies, but there are in-between cases with which amendment No. 120 would deal. It would allow an enforcing authority to act immediately if delay would afford an inadequate remedy—I must stress the word "inadequate". That could provide a vital safeguard in urgent cases, as an appropriate person who is not disposed to clean up the land could claim that he will do so and thus prevent the enforcing authority from taking the necessary action.

Amendment No. 121 would allow an authority to serve a remediation notice in circumstances in which it had not served one because the appropriate person had prepared an apparently satisfactory remediation statement, but had failed to carry out the intentions in the statement.

I appreciate that this is a complicated technical matter, but I am sure that, if he is listening, the Under-Secretary of State for the Environment will understand my arguments and that the Government failed to satisfy us in Committee. All local authority associations—the enforcing authorities—are very much concerned about the matter and believe that they could be frustrated in acting in circumstances in which the Opposition and the Government would desire them to act. In the circumstances that I have described, it is not clear to us whether an authority could undertake any action. If the associations and I are wrong and the Minister can reassure us on that point, we shall be happy not to press the amendments.

Section 78Q, which is also to be inserted in the 1990 Act, prescribes the detail and content of registers to be held by the enforcing authority. Although registers will include details of what the Bill calls "remediation" statements—a record of what an owner intends to do about contaminated land—they do not provide for a sufficiently early public record of contaminated land to be remediated in such a way. That is our belief and that of the local authority associations.

According to the Bill, an owner will be required to publish a remediation statement only within "a reasonable time" of having made clear his intention to carry out remediation. We do not know what a reasonable time is and, clearly, it is important. A local authority cannot serve a remediation notice until three months have elapsed, nor thereafter—this is the important point—if it believes that appropriate remediation steps are being taken without the service of a remediation notice.

There may, therefore, be some considerable delay between an enforcement authority establishing that land is contaminated and details of that land being referred to the register, which would give an unscrupulous owner further opportunity to divest himself of his responsibilities for the land—longer than the three months about which we have already argued with the Minister.

Amendment No. 122 would close the anomaly that local authorities and the Opposition have identified in the Bill. The amendment imposes a condition on the enforcing authority to enter details on to the register at the earliest opportunity in such circumstances.

Those might seem small, technical points of detail, but as we found in Committee, there are many small details on which there is little clarity when it comes to contaminated land. As the Government have chosen to table such huge rafts of amendments very late in the proceedings, people have not been able to scrutinise this part of the Bill properly. I hope that the Minister will answer in some detail and more thoroughly than he did at times in Committee.

Photo of Sam Galbraith Sam Galbraith , Strathkelvin and Bearsden

I also want to deal with a technical matter that relates to charging. The problem with the Bill is that, although English local authorities can charge for the remediation of another individual's land, that power is not open to local authorities in Scotland.

My amendment would allow Scottish local authorities to make charging orders to cover remediation costs incurred under new section 78N of the Environment Protection Act 1990, which is inserted by clause 56 of the Bill.

Charging orders already exist in Scottish law. Local authorities can make charging orders under the Housing (Scotland) Act 1987 and the Building (Scotland) Acts. I realise that giving local authorities the power of a heritable creditor in possession simply by virtue of a charging order would cut across the provisions of the Conveyancing and Feudal Reform (Scotland) Act 1970, whereby a standard security is the only method for creating an effective security in Scots law.

On the other hand, however, leaving enforcing authorities with only court action and the attendant diligence of inhibition as a remedy is not the most satisfactory method of proceeding. Inhibition is merely a preventive diligence that prohibits a seller from disposing of the property. It works only if the seller is the owner. It would not affect a lessee unless the lease was assignable.

Furthermore, final enforcement to obtain the right of adjudication over the property, whereby the Court of Session causes the heritable property of a debtor to be converted into a security for his debt, is a long, involved and expensive process, particularly when compared with the charging order provision that will apply under clause 56. Again, short-term leaseholders and other occupiers are not affected by adjudication in execution.

As the Bill stands, council tax payers in Scotland would be disadvantaged because of that dissimilarity in the legal provisions. I understand that the Government are not yet of a mind to accept the amendment, but I hope that the Minister can reassure me tonight that they will closely monitor the charging for remediation work on others' land by Scottish local authorities, and that they will continue to follow it up.

Photo of Michael Connarty Michael Connarty , Falkirk East

I support amendment No. 123. Recently, my constituency has experienced problems caused by land contaminated by a former munitions works. I have been in correspondence with the local authority and told that it will cost £95,000 to deal with a canal adjacent to the works that has become contaminated with mercury. The prospect of that £95,000 being borne by the council tax payer in Scotland, if charges were not allowed, seems unreasonable and unfair.

The question who should be charged is slightly more difficult. The works were formerly owned by Nobel, which was a part of ICI, and the land has possibly been sold to someone who anticipates a development gain by building houses on it at some point in the future. It is clearly in the interests of the local authority and the people in the vicinity to have the land cleaned up. But if there are no charging mechanisms, there will be a great deal of reluctance for the local authority to proceed with that work.

I hope that the Minister realises that the charging proposal should be looked at and taken on board by the Government, either in the form of the amendment tabled by my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith) or through another amendment on the same subject.

Photo of Paul Beresford Paul Beresford Parliamentary Under-Secretary (Department of Environment) 7:30 pm, 28th June 1995

I shall refer first to amendment No. 264. The hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) will recognise on reflection that the contaminated land provisions in the new part IIA of the 1990 Act deal only with sites that are either not subject to the licensing arrangements or no longer subject to them because they have closed. We have looked carefully at some of the points that the hon. Gentleman made, but the amendment, by focusing on a particular past site use, may deprive the authorities of powers needed to deal with real environmental risks. I think that the hon. Gentleman accepts that.

We all hope and anticipate that a small landfill site would not present unacceptable environmental risks, and that no significant harm or water pollution would occur. In a great number of cases, that will be true, but we do not want to take the general risk of depriving authorities of the power they may need to deal with environmental problems that occur.

On amendment No. 120, the Government believe on the whole that it would be better for enforcement action to take the form of the service of a remedial notice, rather than the undertaking of works by the enforcing authority. That leaves the person facing the regulatory burden with the choice of how to comply with the requirements, and gives him direct control over the costs.

In some circumstances, I agree that it would be appropriate for the enforcing authority to carry out the remediation itself, but we feel that that should be limited. The provisions in the Bill already allow such direct action, particularly where there is imminent danger of serious harm or pollution of controlled waters. I do not think that the provision should be extended in the way envisaged in the amendment, as that would allow the enforcing authorities to deal with circumstances in which delay would result in inadequate remedies without any consideration of the seriousness of the underlying problem.

Photo of Joan Ruddock Joan Ruddock , Lewisham, Deptford

I apologise if I have interrupted the Minister too soon, but he has not so far described a situation in which there could be some urgency, but which was not an emergency. Is he able to do that? If not, can he give an idea of the timing of the guidance that the Government are preparing, and of any consultation associated with that guidance?

Photo of Paul Beresford Paul Beresford Parliamentary Under-Secretary (Department of Environment)

I would be happy to do so if I had the details with me, and I am willing to write to the hon. Lady as fast as I can on the matter. She understands that the Government accept the seriousness of the point that she is making, but we feel that there is sufficient provision in the Bill to act along the lines that she is concerned about.

Photo of Joan Ruddock Joan Ruddock , Lewisham, Deptford

By the Minister's own acknowledgement in parliamentary answers, the Government are to bring forward guidance on how local authorities should prepare remediation notices, who is the responsible person and a host of matters that are central to the consideration of the clause. Is he absolutely unable to give any idea at all of when that guidance will be produced?

Photo of Paul Beresford Paul Beresford Parliamentary Under-Secretary (Department of Environment)

At present, I am afraid that that is the situation. I accept that we must look at the concerns raised by the hon. Lady, but we feel that the provisions in the Bill will allow us to deal with them.

The Government feel that there is no need for amendment No. 121, as the preclusion on serving a remedial notice in section 78G(4) applies only if and so long as any one or more of the following conditions is for the time being satisfied". That clearly means that if an enforcing authority ceased to be satisfied that appropriate remediation was taking place, or would take place, it would have a duty to serve a remedial notice.

I shall touch on amendment Nos. 123 and 124. My hon. Friend the Under-Secretary of State for Scotland explained in Committee, in response to an amendment with a similar effect, that existing land law in Scotland does not include the use of charging notices of this kind. The introduction of such a system would require fundamental changes to be made in the conveyancing system.

Following the debate in Committee, officials have again met representatives of the Law Society of Scotland to discuss the matter, and they explained the difficulty with the previous proposal. The Government believe that the existing mechanisms under Scots law for recovering costs are adequate, but we are prepared to review that—this is the monitoring that the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) wanted—if there is any clear evidence that, once the provisions have been in operation for some time, there is a problem with the recovery of costs in Scotland.

Amendment No. 122 would require the transitory details of consultation about a site to be recorded. That would not add anything of long-term value, as any site for which remediation requirements were made would appear on the register in any case. Where contaminated land was identified, but no remediation notice was served, the information would be placed on the remediation register in the form of either a remediation statement or a remediation declaration. Those would show what remediation was to take place or, in the case of a remediation declaration, why no remediation was required.

Photo of Joan Ruddock Joan Ruddock , Lewisham, Deptford

Can the Minister deal with the point as to when the information is to be entered on to the register?

Photo of Paul Beresford Paul Beresford Parliamentary Under-Secretary (Department of Environment)

No, I am afraid that I cannot. I shall have to give the details at a later date.

Photo of Mr Archy Kirkwood Mr Archy Kirkwood Liberal Democrat Chief Whip

I am tempted to say that that is one of the worst responses that I have ever heard. [Interruption.] I had better be careful in making sweeping statements such as that.

I would like the Minister to think about something. I am not easily provoked, and I understand perfectly well that my amendment is technically incompetent—as so many amendments are. But I could not find any other way of occasioning a debate on a perfectly reasonable subject. I accept that the technical position of my amendment is quite wrong, and that it might have an untoward impact, which I accept that I may not have foreseen.

If I understood the Minister's response to my amendment, I believe that he said that the Government do not care about small infill sites having to carry big registration fees, because they need the big registration fees to catch the problem sites with bigger amounts of noxious and contaminated waste. If I understood that response correctly, it was completely beside the point and misunderstands the general point that I was trying to raise.

I was simply asking whether the Government will give further consideration to the impact that the provisions will have on small infill land sites. If the Minister now stands up and says that I have it all wrong and that the Government are prepared to look at a different system for inoffensive and small areas of land that farmers can make use of, I shall accept that I misunderstood the position. But I must warn the Minister that, if he dismisses the situation out of hand, I may be provoked into pursuing the amendment further.

Photo of Paul Beresford Paul Beresford Parliamentary Under-Secretary (Department of Environment)

I may have been misunderstood. Small sites with correspondingly small licence charges come under different provisions. The contaminated land provisions in new part IIA deal with sites that are not subject to licensing arrangements or are no longer subject because they are closed. I understand that there are small licence charges in such cases.

I have shuffled my notes, and I have found the answer for the hon. Member for Lewisham, Deptford (Ms Ruddock). The provisions in the Bill relating to registers are set out so that a site is entered on the register only when the regulatory action takes place or when voluntary action is agreed upon.

Photo of Mr Archy Kirkwood Mr Archy Kirkwood Liberal Democrat Chief Whip

I return to my original argument. Of course I understand that there are gradations, which vary according to size. However, the Minister is completely missing the point—which is that some landowners have relatively tiny areas of land from which they have been able to derive a living, but the charges for which they will now become liable will prevent them from making use of their land in that way.

For the third time, I ask the Minister carefully to consider the possibility of exempting such landowners or increasing the thresholds for size and scale fees, so that fly-tipping does not result in those landowners defying the charges that the Government propose to levy. If the Minister has not yet got that message, he cannot be responding to the concerns that have been expressed to me by people in the rural parts of Britain.

Photo of Paul Beresford Paul Beresford Parliamentary Under-Secretary (Department of Environment)

I am certainly happy to look at the matter again. However, as I understand it, the contaminated land provisions in the Environmental Protection Act 1990 impose no fees on any sites of any size. I shall take on board the hon. Gentleman's points and I shall check them for myself. If the potential disaster that he has flagged proves to be the case, I shall be concerned, for many of the reasons that he enunciated.

Photo of Joan Ruddock Joan Ruddock , Lewisham, Deptford

I want to take this opportunity to invite the Minister, yet again, to ask his advisers to supply him with some new notes. We have a real need to get more satisfaction from him. This is an incredibly complex, technical and lengthy part of the Bill. We are debating a whole range of amendments, but they have not been appropriately addressed by the Minister.

I have already told the hon. Gentleman that, in order to understand most of the matters in this part of the Bill, to which amendments have been tabled, we need to know what is in the Government's draft guidance. Despite the fact that we are at the eleventh hour of this Bill, that draft guidance has not yet been laid and is not available to hon. Members. Simply to interpret the various clauses of the Bill, which we are trying to discuss and amend, it is necessary to see the draft guidance.

A recent parliamentary answer suggested that it would include guidance on remediation standards and remediation notices, special sites and the appropriate person on whom to serve a remediation notice. As we have not seen even the draft guidance, how on earth can we be expected properly to consider the Bill? The Minister must answer our questions because he has not provided the necessary guidance.

Photo of Paul Beresford Paul Beresford Parliamentary Under-Secretary (Department of Environment)

As I understand it, part of the guidance is available and is out for consultation. The remainder is not available, but will be in the next few months. It will be used in negotiations and discussions with local authorities.

Photo of Mr Archy Kirkwood Mr Archy Kirkwood Liberal Democrat Chief Whip

I am content not to press my amendment because the Minister has assured me that he will re-examine the matters that I raised. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 125, in page 49, leave out lines 43 to 46 and insert— ' "appropriate person" means any person who is an appropriate person, determined in accordance with section 78F below, to bear responsibility for any thing which is to be done by way of remediation in any particular case;'. —[Mr. Atkins.]

Photo of Miss Janet Fookes Miss Janet Fookes , Plymouth Drake

With this, it will be convenient to discuss the following: Government amendments Nos. 126 to 133, 135 and 136.

Amendment No. 236, in page 56, line 6, after '(a)', insert 'whether a person is the appropriate person and'. Government amendments Nos. 137, 138, 142 to 160, 165 and 167 to 173.

Amendment No. 244, in page 65, line 49, after 'recoverable', insert 'and to the extent to which the person from which the cost is recoverable is responsible for, as the case may be, the harm or pollution of controller waters caused, or likely to be caused, by the contaminated land in question'. Government amendment No. 178.

Photo of Paddy Tipping Paddy Tipping , Sherwood 7:45 pm, 28th June 1995

I draw the Minister's attention to amendment No. 136. It is clear that, where the polluter cannot be found, under the Bill the responsibility for clearing up contamination of land lies with the owner or occupier. We dealt with that issue in Committee, but I want to pursue it further now. I am especially concerned about small landowners, particularly householders. Perhaps the Minister read the articles in The Sunday Times on 18 and 25 June, which referred to the Pinehurst estate in Sevenoaks. That new estate has been built on contaminated land that has a methane problem. The owners of the houses are facing liability for clearing up the site.

In Committee, we pressed the Minister on the issue of the liability of small landowners, and he said that he would take into account people's resources and their ability to pay. I want him to consider five specific points relating to the serving of remedial notices on landowners by local authorities.

First, will those notices take into account the cost of remediation in comparison with the value of the property after that work? Clearly, if it will cost more to remediate than the worth of the property, there is a problem. Secondly, will the Minister take into account the position at Sevenoaks and the steps that the home owners have taken to resolve the problem? Thirdly, will he take into account the hardship that people may face? Some may not be in a position to carry out the necessary work. Fourthly, will he take into account the seriousness of the risk and the use to which the land or property is to be put? There is a spectrum of risk. Again, the remediation notices should take that into account.

Finally, will the hon. Gentleman take into account the real issue of an owner who has bought unwittingly? Many householders have unwittingly bought houses on contaminated land with a methane problem. They received the best advice available at the time, yet under the Bill they will incur a liability that many of them will not be able to discharge.

Those issues may be tackled in guidance. Will the Minister say when that will be forthcoming and whether there will be consultation? The questions that I have put are relevant not only to the householders but to the bodies that represent them. I know that the Country Landowners Association is extremely concerned. The British Bankers Association is worried about liabilities that may pass to its members. Insurance companies and mortgage societies feel that it is an extremely difficult problem.

A whole mass of amendments were tabled in Committee, so it is important to get to the bottom of the problem. Some small householders will not have the resources to discharge the liabilities imposed on them and they will be seriously affected. In Committee, the Minister said that he would try to find a sympathetic way to deal with the problem. I hope that he will expand on that now.

Photo of John Greenway John Greenway , Ryedale

Throughout the consideration of the Bill and, previously, the White Paper, the Government have said that it is not the intention of the Bill to create new liabilities. However, some legal opinion available to the Association of British Insurers suggests that new liabilities are being created. I must point out that that was the position as the Bill stood when it left Committee—without the raft of amendments that we are now considering, that have been previously considered or that are yet to come, and that have made or might make significant changes.

Owners of land who are not responsible for the contamination previously could not be made to repay the local authorities' costs to clean up that land. However, it has been suggested that under the Bill they may become liable for paying for the cleaning up of their land, even though they were not responsible for the contamination. That point was made by the hon. Member for Sherwood (Mr. Tipping).

The purpose of amendment No. 244, which stands in my name, is to remedy that problem. I congratulate my right hon. Friend on being made a Privy Councillor. The Association of British Insurers, the National Farmers Union and the Country Landowners Association have ail written to me on the understanding that I understand those matters. I am not sure whether their confidence is entirely properly placed. They are grateful for how Ministers have responded to their concerns about the need to avoid, particularly in the insurance industry, the problems that have been experienced in the United States.

Photo of Joan Ruddock Joan Ruddock , Lewisham, Deptford

I hope that I was not being inattentive at the outset of the hon. Gentleman's contribution, but I did not hear him declare a parliamentary interest. I believe that he is a parliamentary adviser to the Institute of Insurance Brokers.

Photo of John Greenway John Greenway , Ryedale

I am indeed. But that interest has no relevance whatever to the amendment, because the Institute of Insurance Brokers has expressed no opinion either way on this measure. It is true that I have more than 20 years' experience of the insurance industry, and I slightly alluded to that when I said that people came to me on these matters because they thought that I understood them.

The Government have tried hard to ensure that the problems of clean-up costs do not fall on insurance companies, with the likelihood that they will no longer cover certain types of risk willingly. The problem now is that, given the number of amendments before the House, everyone will need to take a fresh legal opinion as to whether they have all the effects that we seek. But we also have the fall-back position that much of the detail of the Bill will be covered in regulations, as the hon. Members for Sherwood and for Lewisham, Deptford (Ms Ruddock) said.

I note that the Government intend to try to meet that concern through some of their amendments. If the matter is not resolved by the Government amendments, there should continue to be discussions with appropriate parties—landowners, the bodies that represent them and the insurance industry—to ensure that we get it right. If we do, this legislation will do society and the country a great service by dealing with the intractable problem of how we pay for the clean-up of contaminated land. I simply ask that innocent subsequent landowners should not find themselves picking up the bill. They would pass it on to insurers when that likelihood need not have arisen.

Photo of Ian Pearson Ian Pearson , Dudley West

I rise briefly on this issue because it has direct constituency relevance. As many hon. Members will be aware, the black country was at the heart of the industrial revolution, and the livelihoods of more than 1.2 million people in the black country are directly affected by the fortunes of business, by business confidence and by maintaining the equilibrium in land value, which supports so many businesses. In my constituency, more than 70 per cent. of land has prior industrial use. That applies to the black country as a whole. Many of the firms that have been important to our nation's success over the past 150 years, producing goods in the late 19th century, are sadly no longer with us. Neither are their owners.

I support my hon. Friend the Member for Sherwood (Mr. Tipping), who expressed his concern about home owners who occupy contaminated land. I extend that concern to businesses, particularly black country businesses, which have had major problems in that respect. Land values underpin a large number of companies in my constituency and are often their major asset on the balance sheet. I admit that I cannot fathom all the amendments before us, but the threat is that the Bill could affect the land value of companies in my constituency and hence their net worth and potential viability. I do not want jobs in my constituency to be put needlessly on the line as a result of the Bill.

I thank the Prime Minister and the Secretary of State for the Environment for meeting representatives from the business community in my constituency to discuss this issue. I am glad that they reassured us that they take the problem seriously. I hope that the future will bear witness to that and that the legislation will be soundly based as a result.

Photo of Mr Robert Atkins Mr Robert Atkins , South Ribble

The hon. Member for Dudley, West (Mr. Pearson) is not alone in appreciating the complexities of this issue. We had some fun and games in Committee when we worked our way through the details in one form or another. I readily confess to the House that I do not pretend to be a master of them all.

I am extremely grateful to the hon. Member for Dudley, West for his comments about the Prime Minister and my Secretary of State.

Photo of Elliot Morley Elliot Morley , Glanford and Scunthorpe

He needs all the help he can get.

Photo of Mr Robert Atkins Mr Robert Atkins , South Ribble

On the contrary, it demonstrates, if ever demonstration were needed, the Prime Minister's readiness to appreciate the great issues of the day, not least when they are led by the Richardson brothers.

The hon. Member for Dudley, West may know that I paid a visit, in the company of my hon. Friend the Member for Bromsgrove (Mr. Thomason) and the right hon. Member for Dudley, East (Dr. Gilbert) to that area and we had an opportunity to listen to and talk to representatives of industry of all sorts and of chambers of commerce. I explained the Bill in part—not in whole because there were still some nuances which escaped them and me but which we have since been able to remedy.

I am also grateful to my hon. Friend the Member for Ryedale (Mr. Greenway) for his comments. We took a lot of trouble with organisations like the insurers, the bankers, Lloyd's, the British Property Federation and all those directly involved in some way with a contribution to make on this issue. I am also grateful to the Country Landowners Association and the National Farmers Union, which both have a significant part to play.

As the hon. Member for Sherwood (Mr. Tipping), who commented on this issue in Committee, said, there is no easy solution to this problem, which is why the guidance is so important. He asked about the timing of the guidance. I cannot be precise, because we seek to ensure that all the organisations that I have mentioned and constituency Members of Parliament have an opportunity to put their case, as the hon. Member for Dudley, West did, on issues that affect their constituencies. The guidance is very important in that respect. Therefore, the consultation with which we must continue across the House and industry is significant.

I am grateful to all hon. Members who have participated in the debate on this issue. I understand its importance, and we shall continue to pay urgent attention to the matters being discussed this evening.

Photo of Paddy Tipping Paddy Tipping , Sherwood

I look forward to the guidance being issued, but I hope that it will deal with three matters: first, hardship and people's ability to pay; secondly. the residual value of the land or property—to clean up a piece of land or property and be left with something that does not meet the cost of the clean-up will cause real difficulties—and, thirdly, the advice that people took before buying the property. Many people will have taken advice from estate agents and surveyors and entered into a contract in good will, only to find that they are left with a liability. I hope that the guidance will address those key issues.

Amendment agreed to.

Amendments made: No. 126, in page 51. line 45, leave out first 'the' and insert 'each'.

No. 127, in page 51, line 45, leave out third 'the' and insert 'an'.

No. 128, in page 52, line 3, leave out from 'the' to end of line 11 and insert 'enforcing authority that another person is an appropriate person, the enforcing authority shall give notice to that other person—

  1. (a) of the fact that the local authority has identified the land in question as contaminated land; and
  2. (b) that he appears to the enforcing authority to be an appropriate person.'.
No. 129, in page 52, line 30, leave out 'any' and insert 'each'.

No. 130, in page 52, line 31, leave out 'the' and insert 'an'. —[Mr. Atkins.]

Photo of John Greenway John Greenway , Ryedale

I beg to move amendment No. 239, in page 52, line 35, leave out 'have regard to any' and insert 'act in accordance with;'.

Photo of Mr Geoffrey Lofthouse Mr Geoffrey Lofthouse , Pontefract and Castleford

With this, it will he convenient to discuss also the following amendments: No. 240, in page 55, line 27, leave out 'have regard to any' and insert 'act in accordance with;'.

No. 241, in page 66, line 1, leave out 'to' and insert 'act in accordance with.'.

No. 242, in page 73, line 2, leave out 'have regard to any' and insert 'act in accordance with;'.

No. 243, in page 73, line 25, leave out 'have regard to any' and insert 'act in accordance with;'.

8 pm

Photo of John Greenway John Greenway , Ryedale

The purpose of this small group of amendments is to try to overcome possible inconsistencies of approach by local authorities.

I am sure that hon. Members would agree that it is important that there is a consistent, nationwide approach by local authorities to their duties in regard to contaminated land. It has been suggested by the Association of British Insurers that local authorities should perhaps be required to "act in accordance with" all the guidance to be issued rather than simply having regard to it. I hope that my right hon. Friend can reassure me on that matter.

Photo of Mr Robert Atkins Mr Robert Atkins , South Ribble

The requirements of the contaminated land regime will be set out in primary legislation and in regulations. Guidance will provide further advice to authorities on certain of those requirements.

The normal provisions for guidance require that authorities should have "regard to" guidance. Some of the guidance under the contaminated land provisions has a stronger requirement that authorities should "act in accordance with" it. That requirement is the exception, and not the rule. It is applied to the key functions relating to the definition of contaminated land, the local authorities' inspection duties and the determination of who should be liable when there are two or more "appropriate persons". Those are all central to the scope of the regime as a whole and to the pattern of liabilities under it, and in each case there are specific questions which are to be determined in accordance with the guidance or requirements to follow particular technical approaches and methods.

The hierarchy of the regulations and guidance are central to the operation of the new contaminated land regime. The provisions already require consultation before any guidance is issued. In some instances, parliamentary scrutiny is also required.

I should like to take this opportunity to confirm that the Government would not seek to bring the main provisions in the contaminated land regime into force until the necessary guidance and regulations were in place. In any case, the regime will not be brought into force before the Environment Agency and the Scottish Environment Protection Agency take up their full functions in April 1996. I hope that that satisfies my hon. Friend.

Photo of John Greenway John Greenway , Ryedale

I am most grateful to my right hon. Friend and I am sure that his comments will be warmly welcomed by all those who have expressed their concern about that issue. I am only too glad that I brought the matter to the House's attention. In view of my right hon. Friend's comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 131, in page 55, line 6, leave out 'the' and insert 'each person who is an'. No. 132, in page 55, line 10, at end insert—

  1. '(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.
  2. (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 78F(5) below, of the cost of doing that thing which each of them respectively is liable to bear.'.
No. 133, in page 55, line 19, leave out 'the' and insert 'an'

No. 134, in page 55, leave out lines 29 and 30 and insert— '(4) Regulations may make provision for or in connection with—

  1. (a) the form or content of remediation notices; or
  2. (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.'.
No. 135, in page 55, line 33, after 'for' insert 'any particular thing which the enforcing authority determines is to be done by way of'. No. 136, in page 55, line 34, leave out from beginning to end of line 19 on page 56 and insert—
  1. '(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.
  2. (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. (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.
  4. (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.
  5. (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.
  6. (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.
  7. (6) Any guidance issued for the purposes of subsection (4) or (5) above shall be issued in accordance with section 78Y below.
  8. (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.
  9. (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—
    1. (a) in consequence only of the presence of that substance in any quantity; or
    2. (b) in consequence only of the quantity of that substance which any particular person caused or knowingly permitted to be present.'.
No. 137, in page 56, line 19, at end insert— 'Grant of, and compensation for, rights of entry etc
  1. 78FA.—(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. (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. (3) Before serving a remediation notice, the enforcing authority shall reasonably endeavour to consult every person who appears to the authority—
    1. (a) to be the owner or occupier of any of the relevant land or waters, and
    2. (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. (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. (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. (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. (7) In this section, "relevant land or waters" means—
    1. (a) the contaminated land in question;
    2. (b) any controlled waters affected by that land; or
    3. (c) any land adjoining or adjacent to that land or those waters.'.
No. 138, in page 56, leave out lines 23 and 24 and insertßž '(a) the person on whom the notice is to be served,'. No. 139, in page 56, line 26, leave out 'and'.

No. 140, in page 56, line 28, at end insert 'and (d) any person of such other description as may be prescribed,'. No. 141, in page 56, line 29, at end insert— '(1A) Regulations may make provision for, or in connection with, steps to be taken for the purposes of subsection (1) above.'. No. 142, in page 57, line 41, leave out first 'any' and insert 'a'.

No. 143, in page 57, line 47, at end insert 'served on that person'.

No. 144, in page 57, line 48, leave out 'steps' and insert 'things'.

No. 145, in page 57, line 49, leave out 'taken' and insert 'done'.

No. 146, in page 57, line 51, at end insert 'on that person'.

No. 147, in page 57, line 52, leave out 'appropriate person' and insert 'person on whom the notice would be served'. No. 148, in page 58, leave out lines 5 to 16 and insert— '(5) Where the enforcing authority is precluded by virtue of section 78E(2) or (3) 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—

  1. (a) the reasons why the authority would have specified that thing; and
  2. (b) the grounds on which the authority is satisfied that it is precluded from specifying that thing in such a notice.'.
No. 149, in page 58, line 35, leave out 'taking or has taken' and insert 'doing or has done'.

No. 150, in page 58, line 36, leave out 'take, the steps' and insert 'do, the things'.

No. 151, in page 58, line 44, after 'notice' insert 'specifying the things there mentioned'.

No. 152, in page 58, line 45, leave out from 'served' to 'the' in line 46.

No. 153, in page 58, line 51, after 'notice' insert 'on an appropriate person'.

No. 154, in page 59, line 6, leave out 'the' and insert 'that'.

No. 155, in page 59, line 11, leave out 'the appropriate' and insert 'that'.

No. 156, in page 59, line 12, leave out 'steps' and insert 'things'.

No. 157, in page 59, leave out lines 14 to 24.

No. 158, in page 59, line 32, leave out 'the' and insert 'an'.

No. 159, in page 59, line 33, leave out '78F(3)(a)' and insert '78F(3) or (3A)'.

No. 180, in page 60, leave out lines 4 to 19 and insert—

  1. '(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.
  2. (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—
    1. (a) at least one falls on or before that date, and
    2. (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).
  3. (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.'.
No. 181, in page 60, line 29, leave out from beginning to end of line 3 on page 61 and insert— '(7) In this section, "mine" has the same meaning as in the Mines and Quarries Act 1954.'. No. 160, in page 62, line 11, leave out from 'that' to second 'person' in line 12.

No. 161, in page 62, line 38, leave out 'this section' and insert 'subsection (1) above'.

No. 162, in page 63, line 1, leave out 'this section' and insert 'subsection (1) above'.

No. 163, in page 63, line 2, leave out from 'made' to end of line 3 and insertßž

  1. '(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) shall lie; or
  2. (b) the procedure on an appeal under subsection (1) above or on an appeal by virtue of paragraph (aa) above.'.
No. 164, in page 63, line 30, at end insertßž '(6) This section, so far as relating to appeals to the Secretary of State, is subject to section 112 of the Environment Act 1995 (delegation or reference of appeals etc).'. No. 165, in page 63, line 34, at end insert— '(lA) Where the remediation notice in question is one which was required by section 78E(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.'. No. 166, in page 64, line 3, 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.'. No. 167, in page 64, line 33, leave out 'the' and insert 'an' No. 168, in page 64, line 47, leave out 'what is appropriate' and insert 'some particular thing'.

No. 169, in page 65, line 3, leave out 'so doing' and insert 'doing that thing'.

No. 170, in page 65, line 7, leave out 'the appropriate person' and insert 'an appropriate person in relation to any particular thing'. No. 171, in page 65, leave out lines 30 to 32 and insert— '(e) in a case falling within paragraph (e) or (f) of that subsection, the particular thing mentioned in the paragraph in question.'. No. 172, in page 65, line 40, leave out 'anything' and insert 'any particular thing'.

No. 173, in page 65, line 43, at end insert '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 78F(5) above'. No. 174, in page 67, line 36, leave out '78P.-(1)' and insert—

  1. '78P—(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,—
    1. (a) it shall give notice of its decision to adopt the remediation notice to the appropriate person and to the local authority;
    2. (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
    3. (c) the validity of the remediation notice shall not be affected by—
    1. (i) the contaminated land having become a special site;
    2. (ii) the adoption of the remediation notice by the appropriate Agency; or
    3. (iii) anything in paragraph (b) above.
  2. (A2) Where a local authority has, by virtue of section 78M above, begun to do any thing, or any series of things, by way of remediation—
    1. (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
    2. (b) section 78N 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)'
No. 175, in page 68, line 5, leave out 'this section' and insert 'subsection (1) or (2) above'. No. 176, in page 69, line 36, at end insert— '(6A) Where information of any description is excluded by virtue of section 78S below from any register maintained under this section, a statement shall be entered in the register indicating the existence of information of that description.'. No. 45, in page 71, line 35, leave out from beginning to '(3)' in line 44 and insert—
  1. '(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).
  2. (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.
  3. (4) Subsection'.
No. 46, in page 72, line 13, leave out 'and' and insert 'to'.

No. 177, in page 74, leave out lines 16 to 23 and insert—

  1. '(3) A person acting in a relevant capacity—
    1. (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
    2. (b) shall not thereby be guilty of an offence under or by virtue of section 78L above unless the requirement which has not been complied with is a requirement to do some particular thing for which he is personally liable to bear the whole or any part of the cost.
  2. (3A) In subsection (3) above, "person acting in a relevant capacity" means—
    1. (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);
    2. (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;
    3. (c) the official receiver acting as receiver or manager;
    4. (d) a person acting as a special manager under section 177 or 370 of the Insolvency Act 1986;
    5. (e) the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the Bankruptcy (Scotland) Act 1985);
    6. (f) a person acting as a receiver or receiver and manager—
      1. (i) under or by virtue of any enactment; or
      2. (ii) by virtue of his appointment as such by an order of a court or by any other instrument.'.
No. 178, in page 75, line 7, after '78F(4)' insert 'or (5)'.—[Mr. Atkins.]