Contaminated Land (England) Regulations 2006

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 The regulations are substantively the same as those originally made in 2000 when Part 2A was brought into effect, with a limited number of changes.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 land. 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 onto 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 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.