Select Committee on Environment, Food and Rural Affairs Seventh Report

2  The Agency's relationship with Government

Lack of distinction between Defra and the Agency in policy-making

62. A common complaint in our evidence was that the Agency, in the words of the Port of London Authority, "exceeds the purposes for which it was established" and is too closely involved with policy-making.[138] The UK Petroleum Industry Association said it was "difficult to establish who is responsible for interpreting legislation between officials in Defra and the Agency".[139] The CBI likewise referred to a "lack of distinction" between Defra and the Agency as to which one was responsible for developing policy.[140] It said this had increased since the reorganisation of the Agency's structure under the BRITE initiative, which had "put in place more policy functions in the Agency than before".[141] The CBI believed that policy-making should be distinct from enforcement and that Defra should be responsible for policy, and the Agency for enforcement.[142]

63. Several witnesses blamed Defra for the perceived increase in the Agency's involvement in policy-making, primarily as a result of Defra being slow to issue relevant guidance to the Agency. The Waste Recycling Group said that a "lack of timely policy setting" within Defra sometimes created a policy vacuum, resulting in the Agency adopting the role of policy maker, "sometimes unwillingly, sometimes enthusiastically".[143] The Port of London Authority criticised Defra for being "slow to issue the necessary policy guidance in a changing situation".[144] The CBI cited the Landfill and Groundwater Directives where Defra had failed to establish a lead in the design and interpretation of policy, which resulted in the Agency making decisions "on the hoof" about the enforcement of regulations.[145] The ESA acknowledged that "poorly written" European legislation had caused problems relating to the issuing of permits under the Landfill Directive.[146] But it believed Defra should have interpreted the guidelines "a lot earlier".[147] The Agency would then have had "a relatively straightforward task".[148] A number of other witnesses made similar criticisms relating to Defra's perceived hesitancy in issuing clear policy guidance for the Agency.[149]

64. We asked the Minister about this perceived increase in the Agency's role in policy-making. He believed the concerns of business witnesses were "sometimes exaggerated".[150] He told us that the Agency was very closely involved in the production of policy—for example, with Making Space for Water (the new strategy for flood and coastal erosion risk management in England) and the Waste Review—and was "free to comment on policy", but policy functions were ultimately a matter for Defra.[151] He dismissed accusations that Defra had been slow in bringing forward guidance. He said Defra often gave advice and warning to stakeholders "well in advance" and "they then turn round a couple of years later and say that they never knew that was coming".[152]

65. Nevertheless, the Minister acknowledged improvements could be made.[153] He told us Defra was establishing a policy group "to improve the implementation of European directives … to make sure that we do involve people as early as possible and that they are open and transparent".[154] He hoped the policy group would act as "a centre of excellence" in terms of the kind of good practice or best practice that both Defra and the Agency should apply.[155]

66. The Agency's view on this matter, however, was closer to the position of business witnesses than that of the Minister. It told us that:

    Given the incoherence and inconsistencies in legislation, [the Agency] from time to time fills a policy void as we have to take the regulations, apply them at an operational level and make them fit real life situations.[156]

67. In order to address these inconsistencies, the Agency believed regulatory reform was necessary at both the European and national level.[157]


68. The Agency told us that EU environmental legislation was often drafted in "piecemeal" fashion resulting in "incoherence, inconsistency and overlapping requirements", and "poorly defined" primary legislation.[158] For example, the term "pollution" was defined differently in different EU Directives.[159] Consequently, EU law was transposed into national legislation in "a piecemeal fashion" and could not "easily be integrated into existing legislation".[160] This "silo approach at EU and national level" resulted in legislation that was piecemeal and overly complex, and it led to "delayed or ineffective implementation".[161]

69. To rectify this situation, the Agency wanted the EU to adopt "a common regulatory code for the environment", covering such issues as definitions, permitting, consultation periods, and monitoring arrangements.[162] It wanted the first step in this direction to be in respect of the legislation governing waste.[163] The Agency believed this would "reduce the administrative and financial burdens on the public and business" because the legislation would be "clearer and easier to understand" and would also "make transposition easier for Member States".[164]

70. Business representatives are concerned that the Agency appears to be increasingly involved in the development of policy. The Agency acknowledges that, due to incoherence and inconsistencies in legislation, it occasionally fills a "policy void" in order to apply regulations at an operational level. This is partly caused by poorly defined and broadly written European Union legislation. We agree with the Agency that a common EU regulatory code for the environment—covering such issues as definitions, permitting, consultation periods, and monitoring arrangements—would facilitate the effective implementation and transposition of EU environmental legislation by the Agency, comparative agencies in other Member States and other EU governments. We therefore task the Government with publishing proposals to address these problems and committing itself to raising its conclusions in the Council of Ministers within the next six months.


71. The Agency also believed regulation should be improved at the national level.[165] It wanted "a common regulatory framework" at the national level because legislation was currently developed in "separate regulatory silos" with "a different format each time, with different administrative requirements".[166] The Agency told us it was working with Defra on developing such a framework for two major licensing schemes from differing EU directives: the Environmental Permitting Programme, which aims to combine the major licensing regimes of Pollution Prevention and Control and waste management licensing.[167] It is seeking to extend this to other regimes and EU directives in the future.[168]

72. We agree with the Agency that developing legislation at the national level within separate regulatory 'silos' can create problems for the effective interpretation and enforcement of policy. It can also complicate matters for businesses and individuals affected by that legislation. We welcome the moves to develop a common regulatory framework for the Pollution Prevention and Control and waste management licensing regimes. We recommend that Defra and the Agency seek to extend this common framework to other regimes and EU directives, ensuring that business interests are kept fully informed of developments.

The Agency's involvement at consultation stage

73. The CBI believed "the other side of this issue" was that Defra did not involve the Agency in policy discussions early enough, thereby potentially "missing out on some of the practicalities of regulatory enforcement".[169] A similar point was made by the Campaign to Protect Rural England which said that the Agency often only provided advice "post-hoc", after decisions had been made. [170]

74. We asked the Agency how satisfied it was with the extent to which Defra consulted it in the initial stages of policy discussions. The Agency told us it was encouraged by the "increasing commitment" from Defra to involve it earlier in the decision-making process, and that it was "seeing improvement".[171] The Agency believed that, historically, Defra had regarded it as "merely technical support" and had not engaged it in policy discussions.[172] This was partly because of "a difference in focus" between Defra and the Agency, with the Department focusing sometimes on avoiding infraction proceedings in the European Court of Justice.[173] The Agency said Defra's approach could lead to "a compressed timescale to plan for implementation, additional administrative burdens and increased business uncertainty".[174]

75. However, the Agency believed that Defra now recognised the need to bring the Agency "to the table earlier".[175] It told us about two "very positive" initiatives:[176]

  • the introduction of a programme and project management (PPM) approach for developing policy, regulation and negotiating positions. This allowed "a more systematic involvement of key stakeholders, including [the Agency] at the earlier stages of policy development";[177]
  • Defra and the Agency have signed a Concordat on EU and International Relations, which "encourages the earlier involvement of [the Agency] in EU decision-making".[178]

76. The Agency said the benefits of these approaches were already evident, for example, in the work on the revision of the Emissions Trading Directive.[179] In particular, the Agency considered the initial PPM projects as "a good step forward".[180] However, the Agency did not believe it was sufficient for PPM to be adopted selectively.[181] It called for the discipline of PPM to be "rigorously applied throughout Defra … for it to make a real difference".[182]

77. We strongly believe that it is essential for the Agency to be involved on a regular basis in the early stage of policy discussions with Defra. If it is not, effective assessment of the feasibility and costs of proposed regulations is hindered. We note Defra's reluctance in the past always to involve the Agency in such discussions, and we hope that recent initiatives—such as the programme and project management (PPM) approach and the Concordant on EU and International Relations—are indicative of a more collaborative relationship between Defra and the Agency at the initial stages of policy discussion. In particular, we believe PPM has considerable value in promoting systematic engagement with the Agency. We recommend Defra expand the use of the PPM approach throughout its work.

The Agency's role in the planning system


78. The Agency provides all regional and local planning authorities with information on flooding issues, and advises on the preparation of their development plans and associated strategic flood risk assessments. It also advises potential developers on site-specific flood risk assessments. In total, it consults on around 60,000 planning applications per year.[183] The Agency is opposed to inappropriate development in flood risk areas and advocates restoration of the floodplain—wherever possible—to enable it to function naturally.[184] However, the Agency's advice has been ignored in some cases. In 2004, about 693 houses were built in flood risk areas against Agency advice.[185] Estimates also suggest that the Agency may be consulted on less than 60%. of applications at risk of flooding.[186]

79. In March 2005, the Office of the Deputy Prime Minister (ODPM) announced that it was to review the existing guidance in this area, Planning Policy Guidance note PPG25: Development and Flood Risk.[187] A key proposal within the consultation on the revised guidance was to grant the Agency statutory consultee status for new developments in areas of flood risk. The Agency welcomed the proposal because it would ensure that significant developments in the flood plain proposed against its advice would be referred to ministers.[188] The analysis of the consultation will be published in October 2006.

80. The vast majority of witnesses also welcomed the proposal to grant the Agency statutory consultee status for developments in flood risk areas. Insurance companies were particularly supportive. Royal & SunAlliance (RSA) told us that the Agency's proposed new status would "give insurers and the public more confidence that new homes are being adequately protected from flooding".[189] Similarly, the Association of British Insurers (ABI) warned that home-owners could struggle to obtain insurance for properties in areas of flood risk if the Agency were not granted such powers.[190] Environmental groups also supported the proposed revision of PPG25. Campaign to Protect Rural England (CPRE) wanted the Agency involved in planning decisions "at the earliest stage of policy making and at the highest level".[191] If the Agency's advice were ignored, CPRE believed that a Minister should explain in public why this was so.[192] It told us that:

    … ministers have made a lot of attaching importance to evidence-based policy-making and … if decisions are being made which go against the evidence which is being provided, it only seems appropriate that there needs to be additional justification given.[193]

The RSPB and the Country Land and Business Association also supported an increase in the Agency's statutory status in this area.[194]

81. We asked the Minister about the Agency's role in the planning process. He agreed that there was a strong case for granting the Agency statutory consultee status in relation to major developments.[195] He welcomed a "considerable stepping up" of the Agency's powers, including granting the Agency a "call-in of the application" if it believed planning decisions were being taken without any regard to its advice.[196] However, the Minister stressed that the revised PPG25 was "not a blanket ban" on any development in any floodplain.[197] Instead, planning authorities only had to "take into account" the potential for increased flood risk in terms of the application.[198]

82. We are concerned that the Agency's advice on development in areas of flood risk has sometimes been ignored. In some instances, the Agency has not even been consulted. Along with the majority of our witnesses, we strongly support the proposal in the current consultation on the revision of PPG25 to grant the Agency statutory consultee status for planning applications involving development in flood risk areas. We are aware, however, that this new status will not necessarily ensure the Agency's advice will be accepted: only that its advice is considered. We recommend that, where the Government allows development to go ahead against Agency advice, the Government should publicly explain the reasons for not accepting the Agency's advice. We believe this would significantly improve transparency in this area.


83. Some witnesses were concerned that the Agency could struggle to cope with the additional demand in applications if it was granted statutory consultee status in relation to proposed developments in flood risk areas. The ABI said the Agency would "need to ensure that it can respond in a timely manner to the increased demand for advice that these measures would generate".[199] CPRE too questioned whether the Agency had sufficient resources—both financial and in terms of human resources—to deal with the thousands of planning application queries it received every year, which would most likely increase after the revision of PPG25.[200]

84. We questioned the Chairman of the Agency on this matter. He estimated that the Agency would probably need an additional 40 planning officers across the country in response to the additional PPG25 demands, which would come out of flood defence expenditure.[201] He told us that the Agency currently received no income from the planning regime for the advice it provided, despite the fact that total costs associated with its work in this area were around £8m per annum.[202]

85. We are concerned that the Agency lacks adequate resources to respond appropriately to many planning applications. This situation will only worsen if the demands on the Agency increase considerably, as a result of it being granted statutory consultee status in the revised PPG25. At present, the Agency receives no income for the provision of its advice in relation to planning, despite estimated costs of £8 million per year in this area. We recommend that the Government re-examine the way the Agency is funded for its work in providing information for development and planning applications, and assess whether some of its work in this area should be funded by the developer concerned.


86. The Agency also provides advice to developers and landowners through its pre-application advice and discussions. RSPB told us that the percentage of new homes built in the floodplain was "roughly equivalent" to the percentage of England's land area designated as floodplain, suggesting that Agency advice was still not making floodplain land generally less attractive to developers.[203] The Agency also warned that flood risk could increase "as much as 20 fold in the future" due to the effects of climate change.[204]

87. Even if, as expected, the Agency is granted statutory consultee status for planning applications involving development in flood risk areas, we believe action will still be necessary to reduce the number of planning applications made in such areas in the first place. To help achieve this, the Agency should further improve its provision of information to developers regarding the environmental and financial consequences of development in flood risk areas. In doing so, the Agency should spell out to developers and other stakeholders the extent to which flood risk is likely to increase in the longer term.

138   Ev 223 Back

139   Ev 193 Back

140   Ev 24 Back

141   Ev 25 Back

142   Ev 24 Back

143   Ev 52 Back

144   Ev 226 Back

145   Ev 42; Q 119 Back

146   Q 134 Back

147   Q 134 Back

148   Q 134 Back

149   For examples, see: Ev 228 [Association of Electricity Producers]; Q 127 [EEF]; Ev 236 [Yorkshire Water] Back

150   Q 263 Back

151   Q 262 Back

152   Q 262 Back

153   Q 263 Back

154   Q 263 Back

155   Q 263 Back

156   Ev 164 Back

157   ibid. Back

158   ibid. Back

159   Ev 164 Back

160   ibid. Back

161   ibid. Back

162   ibid. Back

163   ibid. Back

164   ibid. Back

165   ibid. Back

166   ibid. Back

167   Ev 164 Back

168   ibid. Back

169   Ev 25 Back

170   Q 212 Back

171   Ev 164 Back

172   Ev 165 Back

173   ibid Back

174   ibid  Back

175   ibid. Back

176   ibid. Back

177   Ev 165 Back

178   ibid. Back

179   ibid. Back

180   ibid. Back

181   ibid Back

182   ibid. Back

183   Ev 138 [Environment Agency] Back

184   Ev 140 [Environment Agency] Back

185   ibid. Back

186   Ev 6 [Association of British Insurers] Back

187   Once approved, the revised PPG25 will become known as Planning Policy Statement (PPS) 25: Development and Flood RiskBack

188   Ev 140 Back

189   Ev 2 Back

190   Q 41 Back

191   Ev 91 Back

192   Q 222 Back

193   Q 222 Back

194   Ev 88 [RSPB]; Ev 293 [Country Land and Business Association] Back

195   Q 269 Back

196   Q 269 Back

197   Q 273 Back

198   Q 273 Back

199   Ev 7 Back

200   Q 219 Back

201   Q 335. This extra resourcing followed a workforce review looking at all Agency planning activity and policy, including the revised PPG25. Back

202   Q 335; Ev 159. This figure covers the direct costs of the planning liaison workforce, IS/IT systems development and support, plus management support and overheads. Back

203   Ev 88 Back

204   Ev 139 Back

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