Clause 104 - Contaminated land: appeals against remediation notices

Clean Neighbourhoods and Environment Bill – in a Public Bill Committee at 9:30 am on 1st February 2005.

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Question proposed, That the clause stand part of the Bill.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

We are told that the clause is intended to improve the process of contaminated land appeals. Under section 78L of the Environmental Protection Act 1990, as amended by the Environment Act 1995, appeals against remediation notices under the contaminated land regime are heard by magistrates, except for special sites for which appeals are heard by the Secretary of State. This measure will effectively amend section 78L so that appeals will be made to the Secretary of State, bringing the regime more in line with other environmental regimes.

I seek clarification on a number of issues. I understand that in the original ''Clean Neighbourhoods'' consultation, although respondents were mostly supportive of the measure, a number of them objected. Most of those objecting took the view that appeals were best taken by local magistrates, and that centralising the appeals procedure could slow down the process. There were also concerns about   moving decision making away from the local level, as it is generally recognised that local magistrates have a better understanding of local situations.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

May I assist the hon. Lady? My reaction on first reading this proposition was similar to hers. However, I then discovered that there has only ever been one appeal. Therefore, the expertise of local magistrates would be rather limited in this area of activity.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

That is most helpful. We would not wish to open the floodgates for further appeals. I seek clarification of why the Minister thinks that the Secretary of State would be better placed. The history of the contaminated land and the remediation order would be better known to local people and the local magistrates. Only where a notice had been served by a local authority under section 78L of the Environmental Protection Act 1990—a good Act, which I commend to the Minister's Department—are appeals heard by inspectors appointed for that purpose. Those inspectors make the decision or send the case to the Secretary of State to decide upon.

Presumably the inspectors will by definition not be local and will be drafted in for their expertise in the subject matter rather than the local area. Given the number of sites that may be used for alternative purposes in future, the problem will become an increasing issue.

I am interested to know what representations were made during consultation and what regard the Minister has paid to those representations.

The Minister said that there had been only one appeal to date under section 78L of the 1990 Act. What is the level of appeal to the Secretary of State in matters to which the new procedure already applies?

How will the inspectors be qualified and trained? Is there a ready pool available, or will the inspectors be newly created? If so, will that impose an additional burden of cost, presumably to borne by the Department rather than local authorities, and will it lead to more bureaucratic procedures? At the moment there is a straightforward recourse to the magistrates court. If every owner of contaminated land appeals to the Secretary of State, how long will it take for those appeals to be heard and for the land to be cleaned up? We are particularly wedded to the 1990 Act, as it was passed on our watch and we believe that it has served extremely well.

How does the clause relate to the duty of care under earlier provisions in the Bill, particularly those in which the Government have requested that the duty of care should be actively promoted in the business community and that there should be a general recognition, albeit quite low, of what that duty is?

Subsection (7) relates to the Secretary of State and the National Assembly for Wales. Will there be a separate pool of inspectors to cover Wales or will one pool cover England and Wales? What is the situation in Scotland? It would be nice to think that the provisions in Scotland and Northern Ireland were broadly similar to those in England and Wales. 

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Foreign and Commonwealth Affairs)

I have one specific question for the Minister. If the appeals procedure is used so minimally—indeed, only once, as the Minister said—why does the current system of appeal to the magistrates court need to be changed to bring in the Secretary of State?

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I should like to say, not on the basis of prejudice but on the basis of my practical experience as a magistrate over many years and as chair of a city's planning committee, that my natural instinct is to let the magistrates get on with things and keep the planning inspectorate out of them. I can assure the hon. Lady that the clause has been scrutinised from that standpoint.

The hon. Member for Boston and Skegness (Mr. Simmonds) asked a specific question, which perhaps I can answer. We believe that there are likely to be more appeals in the future, but still not many. This is a backstop provision, as I will explain in my response. It is sensible for the backstop provision to be the same for appeals against a decision by the Environment Agency as by a local authority. A degree of consistency is introduced to the arrangements.

At the moment, provision is for appeals to go either to the magistrates or to the Secretary of State, depending on which regulator serves the notice—the Environment Agency to the Secretary of State, the local authority to the magistrates. What we are proposing is that the cases all go to the Secretary of State, which is more appropriate given their complex legal and technical nature. That should allow for consistency in decision making. The rarity of the cases makes it more appropriate for the Secretary of State and, normally, an inspector to deal with these issues.

As a general point, where there is a remediation notice, the owners of land are often keen quickly to deal with the remediation so that there is no blight on the land and they can get on with whatever development they envisaged. Again, therefore, the appeal process will not be needed in many circumstances, but, for a small minority, needs to be there.

The hon. Member for Vale of York asked about the National Assembly for Wales. The National Assembly is able to draw on the same pool of expertise that is available to the Secretary of State in dealing with appeals across England and Wales. That expertise crosses a variety of recent legislation.

The clause removes the inconsistency of having two avenues of appeal, for remediation notices under part 2A, where they are served by the local authority or by the Environment Agency.

Appeals are so unusual and technical that magistrates would simply not build up a sufficient body of expertise. From my own experience, magistrates quickly develop an expertise, for instance in road traffic offences. In some circumstances, magistrates get specific training to deal with, say, children's issues, young offenders or licensing issues. When appeals are such a rarity, there is frankly nobody on the bench who is going to have the expertise to deal with the issues consistently. I think that the case, against my normal instincts, has been made.

As I indicated, there has only been one remediation notice appeal to the courts and none to the Secretary of State. As authorities progressively identify sites needing action—the emphasis on the use of brownfield sites may assist the process—there may be more appeals. However, they are still likely to be infrequent. Part 2A of the Environmental Protection Act 1990 is designed to encourage remediation through agreement and negotiation—a strong point in its favour—without needing formally to enforce action. Of 70 cases of contaminated land identified up to October 2004, only three required a remediation notice; 25 instead resulted in a remediation statement setting out the agreed approach.

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Foreign and Commonwealth Affairs)

The Minister mentioned a couple of times that he anticipates an increase in the number of appeals once this clause is operable. Has the Department assessed how many appeals there might be? Has there been any discussion of increased resource allocation? The Minister is right to insist that speed is important, so that such land is not blighted.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

The hon. Gentleman is wrong in one aspect. I am suggesting not that the clause will result in an increase in the number of cases or appeals, but that the increased pressure on local authorities to use brownfield sites may lead to more concerns about the need for remediation and therefore orders and appeals. That may not even happen. The one case may continue to be the unique experience, but I am sure that all members of the Committee agree that sites that have been used for other purposes in the past should be recycled, rather than new land being taken up. I was referring to that pressure as possibly leading to a minimal increase in appeals, but we are convinced—obviously, this has been discussed with the inspectorate—that the capacity and the will exists to deal with appeals as quickly as possible.

I hope that it is not necessary for me to go through the details of the one case that went to appeal, because it can hardly be regarded as typical when it is unique. With that explanation, I hope that the Committee will be happy to allow the clause to stand part of the Bill.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport) 9:45 am, 1st February 2005

I heard with great interest what the Minister said. My hon. Friend the Member for Boston and Skegness highlighted a significant factor, which I referred to in my introductory remarks on the clause. We are told on page 69 of the Department's regulatory impact assessment that there will be a cost transfer from magistrates courts to the relevant Department. However, the Minister has not informed us of what the costs will be—whether they will be significant—or of how long it will take to hear a case.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

The hon. Lady might like some information on the complexity of the site that was subject to an appeal, but I shall write to her, rather than running through it now. The case was about remediation in relation to the production of gases and so on, and it shows the highly technical nature of a situation in which a dispute is likely to arise.

The transfer of resources will be minimal. That is normally dealt with by technical experts in the two Departments affected. As far as I am aware, there is no controversy over ensuring that a transfer is achieved.

I share the hon. Lady's view that we should seek a brisker approach to decision making on the part of the inspectorate. Indeed, the Government and the inspectorate have sought to improve matters. As I said at the beginning, my instinct is to leave things to the magistrate, but it is not sensible to leave the current set of circumstances in place. Consistency, so that both regulators—the local authority and the Environment Agency—are dealt with in the same way, is the best way forward.

Question put and agreed to.

Clause 104 ordered to stand part of the Bill.