Select Committee on Environment, Food and Rural Affairs Minutes of Evidence

Examination of Witnesses (Questions 60 - 79)



Mrs Shephard

  60. It seems to me that you have a problem and that is that the system has not worked. Part of the reason it has not worked is that, as you have said, there is a division of responsibility between central and local government and different arms of central government. We would welcome your further thoughts, given that PPG25 is very new, on what happens when you have a local authority that simply says, "Fine, but we are going ahead". It is all very well to talk about working together and there is not much evidence of problems so far. Here is a gross problem which, according to what you said, you could do nothing about.
  (Mr Morley) There are the powers to call in in some cases. It is of course all about proportionate powers, as you will understand, and how they are applied. I do come back to the point that we have not identified very large numbers of cases of this kind post-PPG25. Most of the problems that we currently have are developments which have taken place some years ago which were not really very well thought out and of course dealing with the consequences of that is quite difficult and potentially expensive as well. It is being addressed both in relation to PPG25 and also in the funding review. There are some interesting ideas such as a levy on flood plain development. The powers for that are already in PPG25 and that is one of the ways of considering extra money and if there is development in flood risk areas then there has to be a contribution for it, which of course makes people think about that. That will be made public very soon for consultation. The other restraint, incidentally, going back to the insurance issue, is that insurance companies have made it very clear that if they feel that developments are being put in an inappropriate place there is no guarantee that they will provide insurance for that. That in itself is a restraint in relation to development which developers need to think very carefully about. I think there are a number of mechanisms in place at the present time that do provide a restraint on inappropriate developments. The last one of course is that within the structure plans that planning authorities have an obligation to bring forward, they have an obligation to consult with the Environment Agency and again they must take into account flood risk areas and areas which are and which are not appropriate for development.

  61. I accept all that. You yourself touched on another problem, which is that of planning permissions given before PPG25.
  (Mr Morley) Oh, outline permissions.

  62. And the fact that some of these may be more than 25 years old or whatever, and which were given of course before the climate changes and the effects of building were known about. Sir John has touched on that this morning. What happens about those because local authorities get themselves into a problem with undertakings given to developers, with developers saying, "Okay, if you are going to rescind this planning permission because of things you know now, we will seek compensation"? Local authorities of course are not in a position to pay out these large sums. I have had cases of this in my constituency because we are quite a watery area. What happens in that sort of position? Everybody loses, it seems to me.
  (Mr Morley) I think that you have touched on a real potential problem. You are quite right: once outline permission has been given then really it is very difficult for local authorities and potentially very costly for them if they rescind it. You are into planning law and I am not an expert on planning law, so if what I say is wrong I will certainly write to the Committee, but I suspect that even if outline permission has been given, when it comes to the detailed planning application I think that local authorities could stipulate certain provisions post PPG25 in relation to flood risk mitigation. There is also the possibility—it is there now under PPG25—of asking for a contribution from the developer in relation to reducing flood risk.

  63. Yes, but what local authorities would need to have in that situation in order to avoid litigation from the developers is pretty clear and concrete evidence, say from the Environment Agency, that the situation had changed in respect of a particular site. Is the Environment Agency in a position to give unequivocal advice like that which would have to stand up to court scrutiny, and would that mean that the Environment Agency was then in the frame as far as litigation was concerned?
  (Mr Morley) We should have brought some legal advisers with us.
  (Sir John Harman) Or a planner.

  64. These are the questions that local authorities ask.
  (Sir John Harman) If I might comment on that, although I am not a planner it is my understanding that the key power in PPG25 is the sequential test. That I understand applies at outline planning permission stage, which is the choice of site. As the Minister said, when you get to detailed planning permission you can insert requirements about the way that is handled. On the choice of site however a decision has often been made many years in the past. The Agency, to answer the question you asked, certainly can maintain its objection sturdily and will do. It cannot change the nature of its objection unless circumstances have changed, evidently, but I believe that as we are an advisory and not a deciding body in this matter we would not be in line for any liability which a developer might wish to seek from the local authority planning process.

  65. But if circumstances really had changed in respect of a particular site you would be able to give very firm and (in so far as you could) unequivocal advice about the nature of those changes?
  (Sir John Harman) Yes, we certainly would do that.

Diana Organ

  66. Is that not the problem though, that even in PPG25 the role of the Environment Agency is to be consulted and to be an advisory body? You do not have the mandate to veto a planning application on the basis that it may be at risk of flooding. Am I right? A company in my area that makes drainage materials, bricks for surfacing,—they make them in Scotland and they make them in the Forest of Dean—say to me that in Scotland the Environment Agency has a slightly different remit about its powers of consultation and advice but if the Environment Agency in Scotland says, "We think there is a risk here to flooding", then it is mandatory that that advice is taken and adhered to and it does not go through. The problem is that in England, even with PPG25, it is just advice and local authorities can ignore that. Do you not wish that the English Environment Agency had the same strength and power that that in Scotland has?
  (Sir John Harman) I was not aware but I will check what you have told me about SEPA, the Scottish Environment Protection Agency. I do not think the Agency should be able to veto those decisions and you may find it odd that I should say that. In the end we are accountable of course to Parliament through Ministers but we do not carry the democratic mandate that the local planning authority would do and I believe that they should exercise that mandate on the basis of the advice that is given to them. However, I would add a rider to that, that if it turns out that the much welcomed PPG25 does not lead to much more caution about developing in areas of flood risk, then we ought to be coming back to seek further mechanisms, maybe an automatic power of referral so that the Secretary of State can call the matter in, maybe the exercise of the DTLR's powers on direction. I think it is probably too early to move to that option. I would not want the agency to be in a position where, without a democratic accountability, they could take a decision on planning applications. This situation reminds me very strongly of the situation on out of town supermarkets some time ago where planning guidance came in but quite a lot of cats had got out of the bag by the time it had started to bite.

  67. We are in a slightly different position than out of town supermarkets, are we not, because if you have building that goes ahead, 150 houses or 25 houses here, those residents may, as Mark Todd talked about earlier, go through nine months of hell, being out of that home and the distress that that has caused. They may find that they have insurance premiums that they cannot pay or it is difficult to get. I am sorry; there is a little bit of chuckling going on here relating to this piece of paper. They may find they cannot get a mortgage and also, I have to say, in the model my friend here is the other side of the River Severn and it does have an impact on my constituents when local planning authorities one side of the river say, "Let us put down all this extra tarmac and concrete" because that could have an implication for some of my constituents now being at further risk of flooding because it has an effect on the model of how the river floods. My argument is that it is no good, is it, to say that it is a wish list; let us have it? You are the experts and if we do not take your advice and there is some strength behind it, local authorities will just go on ahead trying to meet their housing numbers and ignore it, and then people will suffer later, and then government has to pick up the bill.
  (Sir John Harman) I have no idea what is on the piece of paper but—

  Diana Organ: It says that the Highways Agency does have a veto power. Why cannot the Environment Agency have one also?


  68. It is a serious question, Sir John. It is almost impossible for a local authority to go ahead with a development if the Highways Authority objects to it. In practice it has a veto and Diana has drawn the analogy between the Environment Agency and the Highways Agency.
  (Mr Morley) Just from my local knowledge, if the Highways Agency can object to a developer, it is usually on traffic access and traffic flows.

Diana Organ

  69. And safety.
  (Mr Morley) It is not a veto but the planners have to take it into account. They may well have a veto on some national schemes. We are back to the difference between the call-in on national and local planning schemes. It is consistent in that sense. It is not quite what was being asked, but just on the point about what one council does which may impact on another, one of the things that we are moving towards in quite a significant way is whole catchment planning strategies. We are doing this with the Agency. In fact, the Agency are carrying out the strategy. The idea of that is to look at the way you model the whole flows of rivers. That does take into account development down a whole catchment and a whole flood plain development because that does impact on it. We are currently considering removing some obstructions on some flood plains, in fact on the Severn, to both speed up the flows of the river so that therefore the peaks go down more quickly, and also to reduce the height. We are gradually doing that now and that will of course have quite significant implications. If you are modelling obstructions and removing obstructions, then of course the Agency would take a very strong view if there were some developments putting obstructions back in place again.
  (Sir John Harman) I do not want to repeat what the Minister has just said, but I want to make something clear. The Agency does very strongly wish to see much less development in the flood plain than we have seen in recent years. There are now something like five million people living in the areas coloured blue on the Agency's flood plain maps. Much of that is historical; York, Shrewsbury, towns that are built around rivers, but we cannot simply carry on doing it. We will oppose very strongly what we believe to be inappropriate flood plain development. That will not be of course each and every case but we will assume the development guilty until proved innocent. I still do not believe that that should lead to our having a veto. If the present tools that we have been given are proved not to be adequate, then we must ask for them to be strengthened. I here defer to politics and policy but it is a matter of policy very much higher than my level to consider giving the Agency a veto over the local government planning process.

Mr Mitchell

  70. I want to ask you about the planning policy on existing developments which are industrial. I am concerned particularly here of course with the South Humberside development which is the best prospect of jobs in our area and the front line of defence of Scunthorpe. What is the policy on industrial developments in this area?
  (Mr Morley) Mr Mitchell makes a very persuasive case in relation to his local issues. Scunthorpe is on the escarpment, I am very glad to say. It is a serious issue and it comes back to strategies and policies. In fact, of course I know the Humber strategy very well, not only having policy responsibility but also being one of the local Members of Parliament in the area. You have a situation on the Humber where there are parts of the Humber which are predominantly agricultural. There are parts of the Humber where there is enormous investment, and you have of course got Hull. The whole of Hull is on a flood plain. You have got the south bank industries in Mr Mitchell's own constituency where there are literally billions of pounds of infrastructure investment. This is a coastal defence issue really. We are moving towards a much more sustainable approach towards coastal defence. That means taking much more consideration of natural processes and working with natural processes rather than putting very large, hard defence obstructions in place. But you do have to make a consideration of what you put behind the coast. In the case of the south bank industrial area with literally billions of pounds of investment, we will commit ourselves to quite expensive, hard defences for the south bank of the Humber. That also means that some land might be lost as part of that engineering because we also have to take into account rising sea levels and that is going to be quite a big investment over the coming years because we are probably going to have to strengthen and raise some coastal defences to take into account that rising sea level. The Humber is one of the places where we are piloting a number of managed re-alignment schemes and we have put in place some of those schemes. In fact I went to launch one at Thorgumbald which is on the northern bank. On the Thorgumbald scheme the defences will be re-aligned inland. The farmland has been purchased by the Agency for this scheme and the existing defences, which will collapse in the next few years, will be breached to allow the sea to go in. That gives us an advantage there. We are using natural processes on the north bank where there is low population density and it is predominantly agricultural land. We are using hard defences on the south bank where there are big urban conurbations, big industrial investment, and we are giving added benefit with the habitat creation on the south bank. If we lose some habitat for engineering on the south bank we are mitigating it by creating habitat on the north bank. It is a scheme where everybody benefits in this particular scheme. We are looking at one or two other schemes on the Humber where we might do some more managed re-alignment and I think it has great potential. Basically it is the balance between traditional hard engineering which will go on; we will always have that, and we will have to make strategic decisions on where that will take place, but also using much more sustainable natural defences as well; a combination of both.

  71. I am happy to hear that. Is there any possibility of charges on industry developing that kind of site which you protect, like the South Humber development, which would of course be dangerous because it would put off development in those areas? Is there any consideration of passing the burden of these costs on to incoming industry?
  (Mr Morley) There is consideration of any new development in flood risk areas in relation to the consultation document which will be published very shortly in terms of a flood plain levy. That is going out for consultation. The funding review also does stress that the conclusion of the funding review is that the Government through taxation should primarily continue to bear the bulk of the cost of flood and coastal protection.

Mr Todd

  72. One of the recommendations and lessons learned in the report, which I seem to remember was called a wake-up call, was that there was an urgent need to have an understanding of the state of inadequacy of existing defences. I think, coincidentally, the NAO did their own study of defences which showed that some of them were in a very poor state and at best much of them were in a mediocre condition. What progress has been made in preparing that report?
  (Mr Morley) There is an asset survey which is in process which also involves putting in place a database of all the flood defence assets we have in this country. The Agency have contacted local councils to provide information from the assets in their area as well as doing a survey on the assets for which the Environment Agency are responsible, and John might like to say a word about that. We have had a reply from the bulk of local authorities on this. There are still some local authorities who have not yet replied for a variety of reasons. We are in the process of chasing that up at the present time and I have also raised this with the Local Government Association.
  (Sir John Harman) There is quite a lot to be said about the condition of defences and the works being done to inspect them. As regards the Agency's main responsibility rather than our supervisory duty, which is for main river and sea defences, we do have an ongoing programme of inspection which demonstrates that the condition in 2001 is substantially unchanged as an aggregate, as a national position, from the condition the previous year. That is not to say that each and every set of defences is in the same condition as it was. Indeed, many of those that were damaged during last year's events are in a slightly better condition now but as an average we would say we are no better than we were the previous year. We also have a supervisory duty in respect of ordinary water courses, which is where the Minister was referring to local authorities and their responses. There are two main operating authorities to do with that: internal drainage boards and local authorities. At the present moment all internal drainage boards have either inspected their defences or are saying they are willing to inspect, although there are a number saying they have resource difficulties in doing it. On the local authority side—this is last week—223 authorities are stating they are willing and they are undertaking the inspection of defences. A hundred and three are willing but have said they are unable to do the work for resource purposes. That does worry us. A small number, as we said, are not willing.

  73. Elliot, you will know that I raised this particular matter before about the level of-co-operation received by the Environment Agency from local authorities. If you reflect on the evidence that we had on this a year ago, in which this was drawn to your attention and the Environment Agency drew it to our attention, it does not sound as if the position has substantially improved, at least from what Sir John has told us. There is still firstly a very large number of local authorities who say, "Yes, we are willing but we are not yet able to do the job", and there are some local authorities who, for whatever reason, have declined to co-operate at all.
  (Mr Morley) Bear in mind that 223 are dealing with it now. A hundred and three are willing to deal with it but have not got on with it at the present time.

  74. That is a large number.
  (Mr Morley) It is still a large number but it is a lot better than it was a year ago, I have to say.
  (Sir John Harman) It is much better.
  (Mr Morley) I do not want to be complacent about this, Chairman, because there is a job to do here.

  75. But there is a 12-month interval that has happened in which it could get a little better as it appears to have done, but we still have a very large number of local authorities who have not undertaken these task. Even in the 220-odd a significant proportion of those presumably have said they will do it but have not done it yet.
  (Mr Morley) They are doing it. Some have done it and some are doing it.

  Mr Todd: We are talking about a 12-month interval after a period in which, as I said at the start, there was a wake-up call. I think Cinderella slumbered through wherever it is. I cannot remember. Who was the one who was asleep?

  Diana Organ: Sleeping Beauty.

Mr Todd

  76. Sleeping Beauty slept through many events. This appears to be still a problem with local authorities.
  (Mr Morley) We are moving forward.

  Chairman: Who do you propose is going to give the kiss?

  Mr Todd: Was it not a frog who did this?

  Diana Organ: No, no.


  77. We will take Mr Todd aside in a little while.
  (Mr Morley) Yes, and give him his pills. Some of these local authorities of course really do not have very much in the way of flood defence assets. We were trying to get some information on non-main systems here as well. This is important because non-main waterways can be responsible for quite severe localised flooding and we do not underestimate those particular roles. We are progressing on that. We are talking with the Agency about that. Again, the funding review which is coming out does have one or two things to say about streamlining, institutional systems, which might address one or two of these problems.
  (Sir John Harman) Although it is slowing down there is a continual accretion as more authorities come into it. However, I do think there is a serious point here. The target was to report by April 2001. I say "we" because I know the Minister intends to do this and certainly the Agency intends to do it. We do need to discuss not just with individual local authorities but with the Local Government Association just how to get the maximum position. The maximum will never be every local authority because there is a small number who have no appreciable interest in the area at all, no reason to have.

Mr Todd

  78. No, and one recognises that there are some people who genuinely have no role in this, but certainly there are not 103 who do not have a role in this, nor, whatever the number was, for those who failed to respond at all. You did not quote that figure. Does this not highlight—and I recognise that it may be about to be addressed some three years after our report which originally suggested it might be addressed—the issue of institutional reform and reducing the muddle in this area? Does it not concern you that it was April 2001 that we were supposed to be having a completion of survey?
  (Sir John Harman) That was the target date for reporting on the condition of defences.

  79. And so I think we can certainly say that that target has been manifestly missed.
  (Sir John Harman) Certainly it has been missed by at least 112 local authorities.

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