rose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 23 May, be annulled (S.I. 2006/1380).
The noble Lord said: My Lords, in rising to move this Motion for an humble Address, I hope that the Minister will be able to resolve my concerns over certain parts of these regulations. We accept the need for proper control of contaminated land and the necessity of preventing water pollution, if at all possible. That said, there are one or two matters about the way in which these regulations are drafted that require clarification.
I shall first raise two relatively small matters about the drafting. On page 1, there is a list of the sections of the Environmental Protection Act 1990 and the Contaminated Land (Enabling Powers) (England) Regulations 2005 that authorise the contents of the regulations. That is completely understood and is a normal and helpful clarification. My problem relates to paragraphs 4(1)(i) and 4(1)(j) on page 4 that state that guidance is issued under Section 76F and Section 78F, which are not mentioned at the start of the regulations. It may be that that is not necessary because of the context, but I ask the Minister for an assurance that there is no problem with that.
The second drafting question arises in Regulation 5 on page 5—it is interesting how the numbers run together in this. Paragraph (2) reads:
“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 it that there is imminent danger of serious harm or serious pollution of controlled waters being caused, the enforcing authority must send any copies of the notice pursuant to paragraph (1) as soon as practicable after service of the notice”.
My view is that that is tautology. If that is not written into the Act, I would be very surprised. It does not really matter whether it is there—that may be a peccadillo, but it seems very peculiar to me that that should be written in the regulations when I would have thought that, in these circumstances, it was absolutely standard procedure and did not require to be stated in the regulations.
The questions of substance that I want to raise are, of course, more serious. On page 2, in Regulation 2, we are dealing with land that is required to be designated as a special site. Sub-paragraph (l) deals with land that is adjoining or adjacent to land which is contaminated by substances which appear to have escaped from designated land. As far as it goes, that is absolutely fine and I can understand the problem. The real question is: how far does “adjacent” go? In Essex, about five years ago, we had rainfall that was a one in 800-year event, as described by our local people responsible for rivers, river basins and flooding. The consequence of that was—I merely mention it as a statement of how severe it was—that six inches of water fell in three hours and buildings were flooded that had never been flooded in the500 years since they were built.
That is the case. It has nothing to do with the issue here, which is that if you get that sort of precipitation on a contaminated site, pollutants are almost certain to leach out of the contaminated site, properly designated, into the adjacent area. Then the question is: how far can the designation be extended, bearing in mind that the pollution is likely to be relatively slight and possibly temporary? I know that it was an extreme event that brought this to my mind—it is difficult when you consider extreme events, but extreme events happen. Regrettably, pollution is a movable commodity in particular circumstances, especially if it is soluble. So there is a question there. If the Minister could give me some reassurance that any extension of the contamination designation would be temporary, on the basis that the pollution would be likely to be temporary and that the designation would last only as long as the pollution could be identified, that would help.
On page 3, Regulation 3 deals with the pollution of controlled waters. Sub-paragraph (a) deals with waters being used for human consumption and refers to where they are affected by the land and, as a result, require a treatment process or a change in the treatment process. My concern is whether that argument could be used against nitrate run-off from agricultural land, which would of course have profound implications, which the Minister will understand as rapidly as I do.
The difficulty is that concentrations of nitrates above a certain level are properly required to be removed from the water before it is supplied to the mains system. The question then is: because that requires a particular process, could the argument be reversed so that, because of the particular processes required, the land should therefore be designated as contaminated?
I hope that the Minister will tell me that there is absolutely no intention that that could possibly be the case or that the argument could possibly be turned around in the way that I suggested. Given the present state of agriculture, a farmer faced with such a proposition would be on a very quick road to ruin. I look forward to the Minister's reply and hope thathe will give me the assurance that I seek. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 23 May, be annulled (S.I. 2006/1380).—(Lord Dixon-Smith.)
My Lords, the House will no doubt be pleased that I shall be brief. I first came across the regulations as a member of the Merits of Statutory Instruments Committee. As they passed through our committee, we saw no problem with them. As I understand it, they consolidate several sets of regulations. One of the things the committee has said is that we want more of that because one of our big worries about regulations such as these—in a sense, the noble Lord, Lord Dixon-Smith, has highlighted this point—is the ability of people outside this place to understand exactly how they work and what they are about. The process of consolidation is an attempt to help that.
As I understand it, the regulations make provision for an additional description of contaminated land that is required to be designated as a special site—land that is contaminated as a result of radioactivity in, on or under the land. I also understand that they extend Part 2A of the Environmental Protection Act 1990 and that it has been a long-standing ministerial commitment to extend that part of the Act to apply it to land contaminated by radioactive substances. I also understand that part of the provision is to comply with obligations under directives from the European Union. We on these Benches accept what the Government are trying to do. I understand that the changes in respect of radioactivity do not alter the way in which Part 2A currently works for non-radioactive contamination.
I know from studying the regulations as a member of the Merits of Statutory Instruments Committee that consultation was carried out with local authorities, environmental regulators, industry and many other stakeholders, including radiological specialists and environmental groups. We accept that they felt that this was the right way to go—notwithstanding the fact that the noble Lord, Lord Dixon-Smith, has also considered the matter in great detail. As I said, it is often difficult to get to grips with the legal language and exactly how the regulations will work.
Although I am not an expert on legal matters, we have a lot of rather good legal brains on the Merits of Statutory Instruments Committee. In this instance, they were not able to point out to us any great difficulty. We support the regulations and I look forward to hearing what the Minister has to say.
My Lords, I am pleased to confirm that all the understandings of the noble Baroness, Lady Maddock, are correct. The noble Lord, Lord Dixon-Smith, asked about the list at the beginning of the order. It sets out the powers of the Secretary of State to make regulations in the exercise of the powers conferred upon him by all those sections. The fact that Regulation (1)(i) refers to Section 78F(6) is not relevant because that is a reference to a section in an Act. It is not the provision that gives the power to make the regulations. The power to make the regulations comes from that other list, but it does not mean to say that the regulations will not refer to other sections in Acts of Parliament. I think that I have that correct; if I have not, I shall be corrected.
I hope to address the noble Lord’s concerns. The noble Baroness, Lady Maddock, made a far more succinct speech on the regulations than the one I have in front of me. As she said, the regulations honour a long-standing government commitment with regard to land contaminated as a result of radioactivity and bring the law into line with what we are required to do. To the best of my knowledge they have been fully consulted on and there is nothing controversial about them. But, nevertheless, that is what this place is for—to scrutinise the Government.
This is one of a series of regulations dealing with the extension to radioactivity of Part 2A of the Environmental Protection Act 1990. These particular regulations deal essentially with procedural matters. They do not affect the scope of the contaminated land regime in terms of the seriousness of harm or pollution which is covered, nor do they affect the remedies or the liability of individuals. The regulations are substantively the same as those originally made in 2000 when Part 2A was brought into effect, with a limited number of changes. The clarifications being sought relate to the features of the regulations unchanged from 2000.
We are not opposed to these regulations or the—I am sorry, my note does not make sense and I will not read it. That is my fault.
However, to clarify the specific points, the noble Lord has had discussions with officials and has told us of his concerns in relation to Regulations 2, 3, 4 and 5. Regulation 2 provides descriptions of land which, if and when they are found to be contaminated land as defined in the Act, are to be regarded as “special sites”. The approach of the Act is that it is always the local authority’s job to identify and formally determine the land as contaminated. If, in addition, the land meets a description in Regulation 2, then it must designate it as a “special site”. This simply means that it becomes the job then of the Environment Agency rather than the local authority to take the subsequent steps of enforcement, which are, notably, identifying who is to pay for remedial work and ensuring that it is undertaken.
There may be special sites where the condition of the land is also leading to adjoining or adjacent land being contaminated by substances migrating or escaping from the special site. Regulation 2(1)(l) simply ensures that these problems are also handled by the Environment Agency, rather than being regarded as a separate case to be handled by the local authority, which, of course, may have other priorities or views. This is simply a matter of good administration and ensuring that there is only one regulator at work enforcing in such cases—namely, the Environment Agency—rather than two. It does not bring with it any differences in, for example, who might be liable for remedial work or the remedial standards which would apply.
This mirrors what will happen in any other case under Part 2A where the condition of one piece of land leads to substances leaching or migrating on to another piece of land and causing a problem. Here, too, the approach is to regard this as a single case to be addressed because, of course, land contamination does not respect property boundaries and action may need to be taken in respect of both locations. The term “adjoining or adjacent” is not defined, so the words will carry their normal dictionary meanings. Of course, if a row occurs about that, it will be a matter for the scientists to go before my learned friends and explain matters.
Regulation 3 sets out the special site descriptions in respect of contaminated land which is causing pollution of controlled waters. The effect is to provide which “contaminated land” cases, once found, are then taken over and enforced by the Environment Agency rather than by the local authority. In the case, for example, of chemicals such as nitrates used on a farm, if these escape from the soil and into ground waters, or into surface waters, then it has long been the case that this may amount to “pollution of controlled waters”. The regulations here do not change that situation.
In some of these pollution cases the Environment Agency is better placed to enforce under Part 2A than the local authority. Regulation 3 provides the description of such cases. Broadly, these include cases where a source of drinking water supply is affected so badly that the test of wholesomeness of supply can no longer be met; where a statutory environmental quality standard can no longer be met; or where a classified dangerous substance is getting into a strategically important aquifer.
The Government intend to limit the scope of the Part 2A regime in future so that it would not apply to a case of trivial pollution of controlled waters but only to pollution which is “significant”. Work on this is proceeding and there will be a public consultation on detailed proposals in due course.
Regulation 4 sets out the matters which are to be included in a remedial notice, in addition to those matters set out in the Act itself, in more general terms. The power to prescribe the additional content is provided by Section 78E(6), and this power is cited on the front of the regulations. The power of the local authority to treat someone as not being an appropriate person to bear the cost of something by way of a remedial action, in certain circumstances, derives from Section 78F(6). This is the reason that Section 78F(6) did not need to be cited as a power on the face of the regulations. I knew that I had read it somewhere, and I worked it out as the noble Lord was speaking.
This is because the regulations are merely concerned with what has to be shown in a remediation notice in order for the recipient to know what he is required to do and on what basis. The content of a notice simply reflects the outcome of the allocation of liability, which is governed by the primary legislation and its related statutory guidance, not by the regulations.
The final regulation questioned by the noble Lord, Regulation 5, concerns the sending of copies of a remediation notice to people additional to the “appropriate persons” upon whom notices are formally served under the Act. The additional copies are provided for information purposes. In the cases where a remediation notice is served in respect of imminent danger, there is a requirement that the additional copies are sent as soon as practicable after service of the notice itself on the appropriate persons.
It would have been possible to deal with the service of these additional copies in the Act, but, generally, the approach taken is that matters of a procedural nature—which is what I have said these regulations are—are often elaborated on in regulations under the Act rather than in the primary legislation itself. This appears to have been the approach adopted here in 1995 when the Environment Act was first enacted.
I hope I have answered the noble Lord’s points and that it will be quite useful for people who are subject to these regulations to have this explanation on the record in Hansard.
My Lords, the Minister has been most helpful. The concern, of course, was immediately for the people who are adjacent to sites of this nature and, therefore, might be caught. The Minister said that nothing in these regulations changes the position that existed in law before they were promulgated; nor, indeed, do they change anything. That is the reassurance that I was seeking and I am most grateful to him for that.
As to his remarks on the additional notices, I hear what the Minister says. But if we have to put into regulations what should be an automatic and standard procedure anyway, I find that slightly touching but also slightly peculiar and, as I said, tautologous. I am pleased to be able to tell the Minister that I am satisfied with his answer. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.