Select Committee on Environment, Transport and Regional Affairs Appendices to the Minutes of Evidence

Memorandum by Ian Sinclair Esq (FP 08)



  1.1  I welcome the short inquiry which the Environment, Transport and Regional Affairs Committee has decided to undertake into Development on or affecting the Flood Plain.

  1.2  I also welcome the initiative which has resulted in the production of Planning Policy Guidance "Development and Flood Risk" (PPG 25). However, as mentioned later, I consider that the Planning Policy Guidance should be up-dated and strengthened in the light of the considerable flooding which has taken place through many parts of England and Wales in October and November 2000. The concern of the public is such that it considers that this opportunity should be taken to ensure that the appropriate Government and legislative action is taken to protect the public and put right some of the practical defects of the past.

  1.3  It is hoped that the Committee will look again at the Conclusions and Recommendations contained in the Sixth Report "Flood and Coastal Defence" of the Agriculture Committee of the House (Session 1997-98).

  1.4  In particular, I draw attention to the sentence in paragraph 116 of the Sixth Report:

    "Some of our recommendations will require substantial change in existing legislation; however such change is imperative and, in our opinion, unavoidable if a truly sustainable and coastal defence policy is to become a reality. Making room for the sea at the coast and for rivers in flood plains, fulfilling simultaneously environmental objectives, will only come about if the correct institutional mechanisms are in place to direct the strategy."

  1.5  In the context of this Inquiry, I consider that there is an urgent need for a radical overhaul of legislation relating to development on or affecting the flood plain, and this also requires a radical re-thinking of the traditional legislation relating to flooding, flood defence and land drainage.

  1.6  Thus, the recommendations contained in the following paragraphs are very relevant:

    117(k)  ("rationalisation of legislative base of flood and coastal defence policy")

    117(l)  ("improving the delivery of national strategy for flood and coastal defence")

    117(t)  ("integrating flood defence requirements within the planning system")

    117(u)  ("financial obligations on private developers")

    117(v)  ("dissemination of information to the public and acceptance of flood and erosion risk")

  I hope that the Committee will recommend to the Government that action should be taken soon to improve and up-date the relevant legislation.


  Being general comments on Planning Policy Guidance (PPG No. 25) "Development and Flood Risk"

  2.1  It is recommended that the draft PPG should be made more specific and take an even more pro-active position towards preventing future problems.

  In particular, the draft PP5 should be amended and should emphasise that positive action needs to be taken on the following aspects:

  2.1.1  The Government should make a positive commitment to a radical overhaul of the legislation relating to flooding and flood defence, and that such action should take place within the period of this Parliament.

  2.1.2  Such legislation should deal with (at least):

  2.1.3  The illogical divided responsibilities and legal powers relating to "main river" and "non-main river" and flood defence between the DETR and the Ministry of Agriculture, Fisheries & Food, and between the Environment Agency and local authorities. The Environment Authority should be given responsibility for flood defence and related activities on non-main rivers now undertaken by local authorities and riparian owners.

  2.1.4  The role of the Environment Agency as a statutory consultee on planning matters, and on Building Regulation matters, where the proposed development is in a flood plain or is potentially subject to flooding, should be strengthened. The Environment Agency should not, in effect, become the planning authority or have a power of veto, but the local authority should be under an obligation to follow the recommendations of the Environment Agency, unless the planning authority can establish a valid environmental objection for not doing so. Environmental considerations should be given a greater priority in relation to other Government priorities, such as the need for more housing and the protection of the Green Belt.

  2.1.5  The principle of total catchment management should be incorporated in legislation, and, as an example, the Environment Agency should be given a specific statutory responsibility to manage whole river catchments as a whole, with a greater responsibility of anticipating and preventing flooding, rather than re-acting to events.

  2.1.6  There should be a more pro-active approach to flood safety and new development, and should state that development should only be permitted, as a matter of priority, in low flood risk areas first, and there should be a search and effort to cause development to be created in areas that were not subject to high risk of flooding.

  2.1.7  The practical effects of this revised policy should be clearly stated, laying emphasis on such matters as prescribing minimum standards of flood defence for new developments, and ensuring that development was made resistant to flooding through new design criteria, which would be incorporated in Building Regulations, and so ensure that all development was better designed to be safe and able to withstand flooding.

  2.1.8  New development should be more forward thinking and should take into account the likely effects of climate change and be designed on a "worse basis scenario". Another aspect of this is that the emergency services, such as the Police, Ambulance Service and Fire Services, as well as the Environment Agency and the Water and Sewerage Companies, should be more closely involved in consideration of design and construction of new developments. We should learn and benefit from the lessons of the past. These services must be able to respond effectively and quickly to emergencies, especially flooding.

  2.1.9  There should be a far stronger emphasis on the prevention of flooding in the future, making allowance for the past experiences of flooding and possible future climate change. Thus, a precautionary approach to preventing flooding in the future, rather than having to take flood precaution measure after the event.

  2.1.10  The consequences of new development on existing development, especially downstream in the catchment of that particular stream and river, and in the larger receiving catchments should be appreciated, and responsibility stated. Ideally, increased run-off should be contained on that particular development. There should be a much greater emphasis and requirement for sustainable drainage systems, which do not increase the risk of flooding downstream of the new development. Reference should be made to the recent good design manual (published earlier in 2000) and these practices should be required in new development. Where new development may produce increased flooding on development downstream, it should be the responsibility of the developer, or if appropriate of the planning and statutory authorities, to protect that downstream development and undertake works of flood protection, including the enlargement of downstream bridges, culverts and removal of obstructions.


  3.1  The six principles of the guidance set out on the first page of the draft PPP 25 are welcomed. Every effort should be made by the Government to bring about a change in the attitude and practice of the public, and also those bodies charged with responsibility in flood protection matters.

  3.2  The public expect that, where planning permission has been given for development, especially a new modern housing development, those houses will be protected from all reasonably foreseeable flooding. The confidence of the public in the planning of new development has been badly shaken and expects the Government to take active steps to protect their interests. It is certainly reasonable to expect the developer to make a major contribution towards flood prevention and protection in and in the immediate vicinity of the development to be built.

  3.3  However, the wider and cumulative effects of small amounts of development over a larger area must be considered, and there should be a commitment by the Government, planning authorities, local authorities, the Environment Agencies, and the water and sewerage authorities to take remedial action to deal with those consequences. This should be a statutory responsibility and the necessary finance should be provided to make it a reality.

  3.4  It would appear that the allocation of land for development by means of Development Plans pre-dated the current experience in the past 10 years or so of flooding and other natural disasters. Thus, these allocations do not appear to take into account the flood risk mapping programme that is being undertaken by the Environment Agency. There seems to be an inadequate understanding of flood risk, both for land to be developed and the consequences of recent and proposed development on land in the catchment downstream of any such development. Local authorities should be required to undertake a review of all sites which might be available or have been identified in Development Plans. It is also essential that such reviews should be undertaken, not merely by planning authority areas, but also on a river and stream catchment basis, so that there is a comprehensive understanding of the factors which would flow from any proposed development.

  3.5  The practical consequences of having used areas which were previous flood plains, both upstream and downstream of towns and cities, and of seeking to confine rivers and streams within culverts, or restricted walls or banks, or even buildings, needs radical reassessment. The beneficial effects of retaining existing and restoring floodplains, where this is desirable, should be considered as an important strategy, rather than seeking to rely on flood defences, which were often constructed in the past when there was a different regime and frequency of flooding. In this connection, the powers of local authorities, the Environment Agency and the sewerage and water companies should be extended to allow them to use compulsory powers of acquisition and demolition of obstructions in watercourses and in the flood plain. This would include doing works of enlargement and reconstruction of downstream culverts and bridges and improvement of flood prevention works.

  3.6  It may be true in law (as stated in PPP 25, paragraph 14) that the primary responsibility for safeguarding land and other property against natural hazards, such as flooding, remains with the owner. This concept needs reconsideration where flooding and damage to property is caused by upstream development which has occurred since the owner acquired the property and over which he has no development.

  3.7  The injustice of imposing considerable expenditure on the owner which results from erosion of the banks of watercourses or the consequences of flooding, or taking physical construction precautions, should be considered. Why should the owner have to bear the worry, expense and trouble of such matters which result from development over which he has no control? If the statutory authorities have caused such damage, or allowed development which aggravates such flooding, there should be a statutory responsibility for the statutory authorities to rectify the problem at their expense, and not at the expense of the owner.


  4.1  It should be transparently clear that flood risk has been taken into account in Development Plans. Where land has been allocated for development which is in an area that is potentially liable to flood, or is protected by flood defences (which may be over-topped) or which is below the level of watercourses in the area, special care should be taken and precautions implemented. These principles should apply to redevelopment of existing sites.

  4.2  The local authority should be required to undertake a full and proper investigation into flood risk and clearly state what effect the development will be likely to have, especially on existing downstream development. All parties concerned with development should be obliged to identify and minimise the flood risk, both direct and indirect. This should include not only flooding from watercourses but also from surface water and foul water sewers. Building Regulations should be amended to ensure that all surface water arising from a development (even in times of storm or flood) can be safely contained on site without causing flooding and other problems downstream (such as premature foul and storm water overflows, and so causing pollution).

  4.3  The necessary costs of adequate protection should be borne by the developer and also in many cases, the cost should fall on the local authorities and the Environment Authority. Proper precautions and flood defence measures should be undertaken at the time of the development, and not at some time afterwards when flooding has taken place.

  4.4  Where possible, the object should be that all new developments should retain water falling on, or arising from, such development and should be retained on such development. Measures such as permeable pavements, parking areas and hard-standings should be incorporated, with flood retention reservoirs on site (as ornamental features) should be required in normal cases.

  4.5  The principle should be that there was no greater run-off from the new development than when it was green-field site. That this is practical has been shown on a number of Motorway Service Station sites and other Green Tec sites.

  4.6  Buildings should be designed as to be relevant to the situation in which they are and so relevant to likely risks. Buildings should be designed and built so that they may be re-occupied and used in a short period of time after flooding. For example, if appropriate, buildings should be raised above known or expected flood levels, with precautions incorporated in the construction so as to prevent the ingress of flood water. In addition, precautions such as solid floors and walls, electrical, gas and telephone and other services coming from above rather than the ground, and heating facilities not being placed in cellars or at lower levels, should be incorporated.

  4.7  Developments should be planned having regard to dealing with emergencies, such as flooding. Measures such as flood-free access, protection of electric and gas power supplies, protected supplies of fresh water and sewerage and telephone and communication facilities, should be taken into account when planning or allowing development. Siting of sensitive public requirements, such as hospitals, doctors' surgeries, fire, ambulance and police services, should receive careful consideration in relation to possible natural disasters, including flooding.


  5.1  There is much to be commended in the draft PPG 25. The extra emphasis on the threat and consequences of flooding arising from development in the flood plain is welcomed. It is essential that future development and re-development should be carried out in a way that has more regard to the effect of such development on the environment and having regard to the changes in weather that can reasonably be expected. Any future development must have greater regard to the improvement required for the benefit of future generations, as well as immediate needs.

  5.2  In the context of this Inquiry, the draft PPG 25 should be strengthened to ensure that the risk and consequences of flooding should receive detailed and practical thought in the planning and development stages. It is also hoped that this PPG 25 is only an interim stage and that a thorough re-examination of the law and practice relating to flooding and development will receive a high priority in the near future by the Department of the Environment, Transport and Regional Affairs, and then subsequently by this Committee, and then that it is transformed into legislation by the Government and Parliament.

I C Sinclair, LLB, Solicitor
Sinclair Consultancy Services
Former Authority Secretary and Solicitor
Severn Trent Water Authority

17 November 2000

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