Examination of Witnesses (Questions 60
- 79)
WEDNESDAY 28 NOVEMBER 2001
MR ELLIOT
MORLEY, MP AND
SIR JOHN
HARMAN
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?
Chairman
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.
Chairman
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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