Select Committee on Agriculture Sixth Report

APPENDIX 32

Memorandum submitted by The Royal Town Planning Institute (F50)

INTRODUCTION

  1.  The House of Commons Agriculture Committee is holding an Inquiry into concerns relating to Flood and Coastal Defence. The Institute welcomes the Committee's focus on:

—  The effectiveness of MAFF's current expenditure and policy on flood and coastal defence in England, focusing upon the efficiency of the implementation of these policies through the activities of organisations involved in the maintenance and operation of existing flood and coastal defence strategies, including the Environment Agency, maritime local authorities, internal drainage boards and coastal groups; and

—  The other social, economic and environmental implications of existing flood and coastal defence policy, and the sustainability of policy and social, economic and environment terms.

  2.  The Committee has expressed an interest in learning more about the implications for flood and coastal defence of the existing UK planning system and this submission responds to that invitation. The Institute in presenting this evidence anticipates the Committee's interest relates to flooding inland as well as that arising from inadequate coastal defence.

  3.  This submission therefore examines the role of those reponsible for the flooding issues and the consequent responsibilities of planning authorities in determining planning applications. It will consider whether the responsibilities for flooding and flood defence are sufficiently well-defined; whether consultation arrangements are adequate; whether data on areas liable to flood are sufficient; and whether planning permission should be granted on the basis of caveat emptor.

  4.  No doubt also the Committee will consider flood prevention and coastal defence in relation to existing property and buildings.

NEW DEVELOPMENT IN AREAS LIABLE TO FLOODING

  5.  Some maintain the view that provided developers and subsequent occupiers of property are aware of flood risks, then it is a matter of caveat emptor. The Institute is opposed to that view for a number of reasons, and it believes where there is risk of flooding that planning permission should be refused:

(a)  Planning authorities have a responsibility to ensure as far as they are able, sustainable environments for members of the community, particularly in terms of new development. It is inappropriate for them to permit development in flood risk areas having regard for human misery, including loss of life, that flooding causes. Even though potential residents/occupiers might be prepared to take that risk;

(b)  Planning authorities also need to have regard for possible consequences of new development giving rise to flood risks elsewhere (usually down stream); and

(c)  Apart from the cost of flood damage to residents/occupiers when it occurs, there is also a cost on the community at large, indirectly through insurance and directly through the remedial work needed from emergency services. Thus, in dealing with planning applications in flood risk areas, planning authorities should have regard to both the internal costs (to property owners) and the external costs (to the community as a whole).

THE MECHANISMS FOR DETERMINING PLANNING APPLICATIONS IN FLOOD RISK AREAS

  6.  In considering how planning authorities should deal with proposals in flood risk areas, two questions are often raised (apart from the issues raised in the previous section):

(a)  Should those responsible for flood defence be able to veto development in areas liable to flood risks, ie should the planning authorities' normally absolute power to determine planning applications be reduced in these circumstances?

(b)  Are planning authorities sufficiently well-informed by the other authorities as to which areas are subject to flood risks?

  7.  The then National Rivers Authority (now part of the Environment Agency) decided to look at these questions in 1993 in a study on Strategic Town and Country Planning Issues undertaken for it by Middlesex University. The Institute was invited to be a member of the Steering Group which assisted in the study.

  8.  A number of recommendations emerged, the burden of which was that the decisions on developments in flood risk areas must remain the responsibility of local planning authorities, but that those involved in the water industry (particularly now the Environment Agency) must be in the position to provide them with the necessary data on those areas in respect of which they were expected to restrict new development.

  9.  The Institute's representative on the Steering Group consistently took that view that comprehensive data on flood risk areas were vital if planning authorities were to be expected to reduce the amount of new development likely to be subject to flood risks. An ad hoc approach was not sufficient.

GOVERNMENT'S ADVICE

Planning Policy Guidance Notes (PPGs)

  10.  PPGs are prepared by the Department of the Environment, Transport and the Regions to provide guidance to local authorities and others on policies and the operation of the planning system.

PPG 12—Development Plans and Regional Planning Guidance

  11.  Paragraph 6.4 stated that "policies for land use must weigh and reconcile priorities in the public interest". Among the priorities listed is the following:

"A physically safe environment, in which planning helps to ensure for example, that proper precautions are taken against the risks that coastal erosion, flooding . . . might pose"

  12.  Paragraph 6.11 states: "at a global level there are the implications of possible changes to our climate and of the pervasive changes in human behaviour that may be needed to limit and adapt to global warming. So, development plans need to address the implications for coastal defences, the siting of developments in low-lying areas and freshwater and drainage systems . . .".

PPG 20 Coastal Planning

  13.  Paragraphs 2.13 to 2.19 relate to "policies for risks". These paragraphs warn against putting further developments at risk. "In particular, new development should not generally be permitted in areas which would need expensive engineering works . . . policies should seek to minimise development in areas at risk from flooding, erosion and land stability".

  14.  Paragraph 2.15 refers to: "rising sea levels and recent cases of severe coastal flooding (which) have focused attention on minimising both the risk to life and damage to property. This should be done by identifying areas likely to be at risk from flooding".

  15.  Paragraph 2.16 states that "a precautionary approach is also required for policies relating to land affected, or likely to be affected, by erosion and land instability. It seems to the Institute that similar advice should relate to land at risk from flooding.

  16.  Section 4 deals with the coastal zone and development plans. At paragraph 4.3 scope for conflict is identified (inter alia) because:

—  development may damage downstream habitats (including presumably human habitats), fisheries or recreational and economic resources.

—  in the absence of a clear strategy, decisions on development can place existing development, coastal defences or fisheries at risk.

  17.  Paragraph 4.6 sets out information needed in the preparation by local authorities of development plans (as they relate to the coast). On development impact it refers inter alia to:

—  identification of particular environmental sensitivities and types of development and activity likely to cause particular harm; and

—  identification of sensitive locations or areas for key types of development.

  18.  It suggests at paragraph 4.11 that regional and strategic planning guidance should have regard to "coastal defence and the need to take account of the risks of flooding, erosion and land stability, where they affect large stretches of the coast".

  19.   Paragraph 4.16 advises that local plans should include specific policies for "areas at risk from flooding, erosion and land instability".

  20.  The above advice relates to coastal areas, but the extracts quoted above in the main also should apply to non-coastal areas which may be at risk from flooding. The Institute commends the above advice to the Committee.

Government Circulars

Circular 30/92 Development and Flood Risks

  21.  This Circular issued jointly by the Department of the Environment with the Ministry of Agriculture, Fisheries and Food provides advice to local planning authorities and others on the arrangements for ensuring that planning decisions take account of any risk of flooding, whether inland or from the sea. The NRA having now been subsumed into the Environment Agency since April 1996, all statutory references to the NRA have been replaced by the Environment Agency.

  22.   Paragraph 4 indicates that "the Government therefore looks to local authorities to use their planning powers to guide development away from areas that may be affected by flooding, and to restrict development that would in itself increase the risk of flooding or would interfere in the ability of the NRA or other bodies to carry out flood control works and maintenance.

  23.   Paragraph 5 states: "where flood defence considerations arise, they should always be taken in account by local planning authorities in preparing development plans and in determining planning applications. Development permitted without regard to such considerations can lead to danger to life, damage to property and wasteful expenditure on remedial works whether on the development site or elsewhere. Engineering works for flood defence can reduce the risk of flooding but can never eliminate it completely. Through the development plan and development control process, developers need to be made aware of the risks in the specific area, the consequent constraints on development, and any ways in which these can be overcome". (These echo the Institute's comments made at paragraph 5 above).

  24.   Paragraphs 6 to 10 deal with development plans and flood risk areas—pointing to the NRA as a statutory consultee in the preparation of development plan. The NRA is expected to make input to development plans in respect of flood defence issues. It expects the NRA to carry out surveys which will help local authorities in identifying land which is at risk from major events of low probability (such as storm surges) of flooding but it suggests that local authorities will be more familiar with areas where there is a high frequency of flooding.

  25.   Paragraph 9 points out that "local authorities should bear in mind the Government's policy that new development in areas of flood risk should make provision for flood defence; and grant aid is not available for flood alleviation works for new developments. NRA resources are targeted at protecting existing developments, and it does not invest in flood protection work solely in anticipation of future development. Plans should not therefore provide for any development on land at high risk from flooding which is not currently protected, or in the respect of which there is not already significant development unless a developer is willing to protect the land, the appropriate standard as part of the development".

  26.  The Institute suggests that the appropriate way to secure this protection is through the developer entering into an obligation under section 106 of the Town and Country Planning Act.

  27.   Paragraph 13 advises that each local planning authority should seek to agree with the NRA areas and types of development about which consultation will take place. It then lists seven types of area, the possible development of which should be the subject of consultation by local authorities with the NRA.

  28.  In dealing with planning applications paragraph 16 advises that "the local planning authority should be ready to explain its reasons to the NRA if it decides not to follow advice received as a result of consultation on an application". The Institute takes a view that any such explanation needs to be very soundly based.

  29.  The Committee will no doubt be considering the contents of the Circular in its entirety, but the main messages which emerge are:

(a)  The need for the Environment Agency to provide local planning authorities with the necessary information;

(b)  The need to ensure that development does not take place in areas liable to risk from flooding;

(c)  The importance of the development plan in ensuring that new development is steered away from areas liable to risk from flooding;

(d)  The need for the Environment Agency to give positive advice in the determination of planning applications;

(e)  The need for local planning authorities in determining planning applications to have regard to the impact of that new development on existing development elsewhere;

(f)  The need for the Environment Agency and local planning authorities to work closely together in the preparation of development plans and determining planning applications.

RESPONSIBILITY FOR COASTAL PROTECTION

  30.  In looking at the activities of organisations involved in the maintenance and operation of existing flood and coastal defence strategies, the Committee will no doubt consider the views of the House of Commons, then Environment Committee, which reported to the House in March 1992. Volume one of its report, paragraphs 74 to 97 dealt with coast protection and sea defence.

  31.  The Environment Committee was of the view that whilst "arrangements appear clear on paper" (paragraph 77) it was not always the case that responsibilities were clear. Those who have dealt with coast defences will know that, when convenient, attempts are made to abdicate responsibility for action when at the very least a corporate approach might be appropriate. Rationalisation of duties might be a way forward that the Committee will consider rather than relying on the present sectoral approach.

COOPERATION AND LIAISON

  33.  In seeking to ensure that development is not exposed to flooding and it does not increase flood risk, it is critical that the arrangements for consultation, particularly between the Environment Agency and planning authorities are clearly identified and statutorily established. When the water industry was privatised planning authorities were statutorily required to consult the NRA on development plans and in respect of certain types of planning application. No statutory arrangements were put in place requiring the water industry to consult local planning authorities on its plans and activities (although, of course, such consultation does take place).

  33.  Attention is drawn to Annex E of PPG 12, which lists Departments and bodies which should be consulted at the pre-deposit stage of the development plan process. Although "the relevant water company" is listed for matters relating to water and sewerage services; the Environment Agency's forerunner, the National Rivers Authority is not listed. The Department is currently working on producing a revised PPG 12 as part of improved arrangements for the delivery of local plans and unitary development plans within its Modernising Planning initiative.

  34.  The Committee should consider whether the arrangements should be placed on a firmer footing. Relationships are likely to become more satisfactory when both the Environment Agency and the local planning authorities are placed on the same statutory footing.

  35.  The Town and Country Planning (General Development Procedure) Order 1995 sets out requirements for consultation by the local planning authority prior to granting planning permission. It defines in the Table in Article 10 particular types of development on which various public bodies should be consulted. This includes the Environment Agency for "development":

(k)  involving or including mining operations.

(p)  involving the carrying out of works or operations on the bed of or on the banks of a river or stream.

(q)  for the purpose of refining or storing mineral oils and other derivatives.

(r)  involving the use of land for the deposit of refuse or waste

(s)  relating to the retention, treatment or disposals of sewage, trade-waste, slurry or sludge etc

(t)  relating to the use of land as a cemetery

(u)  for the purposes of fish farming.

OTHER RELEVANT DOCUMENTS

  36.  The Committee may wish to refer to a document published in February 1992 by the Welsh Consumer Council "In Deep Water". This follows the coastal flooding at Towyn and Kinmel Bay in 1990. It made 51 recommendations relating to various aspects of the disaster itself and the aftermath.

  37.  Its recommendations on planning are somewhat "thin". One relevant recommendation was that "there was a need for local authorities to make clear the conditions under which they give planning permission for development in flood risk areas". Hardly a recipe for preventing a repeat of that disaster. There was no reference to the need for local plans and for policies in them, to indicate whether there are floods constraints and where they are.

SUMMARY

  38.  The main thrust of the Institute's representations is as follows:

(a)  There is no doubt that where there is a known flood risk, development should not be permitted, unless it can be absolutely guaranteed that the flood risk can be eliminated (as part of the development), and the caveat emptor principle should not apply; however the responsibility for determining planning applications in flood risk areas should remain with the locally accountable planning authority.

(b)  It should be the responsibility of the Environment Agency to indicate where land is at risk from flooding. (This should also have regard for the possible consequences of a global warming). It should also indicate where new development may increase flood risks elsewhere (usually down stream);

(c)  Such information should be included as a constraint in local plans and be subject to appropriate policies which should be respected in accordance with section 54A of the Town and Country Planning Act 1990. This states:

    "where, in making any determination under the Planning Acts, regard is to be had to the development plan, a determination should be made in accordance with the plan unless material considerations indicate otherwise".

    This section is at the heart of the "plan led" approach to the planning system being taken by the Government. It should help to ensure that planning applications are determined in accordance with policies to prevent development in areas subject to flood risks.

(d)  Responsibilities for coastal defence and associated activity should be clearly defined so there is no room for identification of those responsibilities to other bodies. The Committee will no doubt consider (as did the Environment Committee when considering coasts) the responsibilities for protection and planning and whether arrangements for flood prevention and coastal defences need to be rationalised.

(e)  The Committee should assure itself that the consultation arrangements as between planning authorities and those bodies responsible for flood prevention in all its aspects are unambiguous and are statutorily established so as to be "two-way". One-way consultation requirements are not an ideal way to achieve satisfactory liaison arrangements.

CONCLUSION

  39.  The Institute's wishes to support paragraphs 2.4, 2.6, 2.7 and 2.8 of the Memorandum of Evidence submitted by the Royal Society for the Protection of Birds. It particularly supports the reference to flood and coastal defence needing to be better integrated with other river and coastal management activities (paragraph 2.6).

  40.  The Institute is pleased to have had the opportunity to give evidence on Flood and Coastal Defence and will be pleased to elaborate on the points made if the Committee so wished.

15 May 1998

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Prepared 5 August 1998