House of Commons - The Draft Flood and Water Management Bill - Environment, Food and Rural Affairs Committee

The Draft Flood and Water Management Bill - Environment, Food and Rural Affairs Committee Contents

3 Flood and Coastal Erosion Risk Management

21. Clauses 3 to 14 set out 17 definitions used in the draft Bill. Further definitions are provided within other provisions throughout the draft Bill, such as the definition of "sustainable drainage" in Clause 219. Although there is a long list of definitions, there is no definition of "strategy" or indication of what elements this must contain, despite the Environment Agency's national flood and coastal erosion risk management strategy being arguably the principal element of the flooding parts of the draft Bill.

22. Clause 12 defines "lead local flood authority". The effect of this provision is to establish the roles of local authorities. The Environment Agency is content that the draft provisions would provide sufficient clarity on the respective roles.[46] Local authorities broadly welcome the proposal for them to take a lead role but the Local Government Association warned that "this is a new role and will require additional capacity".[47] The Association made a number of points about the need for coordination to be managed effectively, including agreement locally in two-tier areas on how the lead role and delivery of particular functions is to be undertaken.[48] It highlighted the need for effective partnerships and collaborative working,[49] but noted that "persuasion by and of local authorities is not a reliable lever" and could lead to inefficiencies.[50] The Regional Flood Defence Committees considered that the lead local authority role should "include an expectation that partnerships will be established", with the Environment Agency taking responsibility via the Regional Flood and Coastal Committees (RFCCs) "as democratically based committees" for ensuring that "such partnerships are 'fit for purpose'".[51]

23. Councillor Smith of Suffolk Coastal District Council told us about the Blyth Estuary as an example of how local solutions could work. He told us that:

…we got together with the county council and the EA, really closely working with local landowners. The new money there is that the local landowners are now, under the EA's guidance and consistent with all EA policies, building new river banks with topsoil from building sites which those guys would have to pay to go to landfill. The landowner ends up building the river banks on behalf of the EA and is being paid to do it by the people bringing the material. There are new ways of doing things if we can put ourselves in association with the local authorities, the EA, Natural England and the other main players in a situation where locally we can manipulate and evolve solutions to meet local circumstances within an overall EA funding stream, and use that mechanism amongst other things to be the route to the EA's board, which at the end of the day might give you some of the money sometimes for some of the projects.[52]

24. We recommend that Defra redraft Clause 12 to clarify the roles of the different tiers of local authorities and their responsibilities, while allowing the flexibility for pragmatic local solutions and partnerships. We further recommend that the Bill include an order making power, under which the Secretary of State may alter the tasks to be undertaken by local authorities, following full consultation with interested bodies.

National flood and coastal erosion risk management strategy

25. The Environment Agency will be required, under Clause 15, to develop a strategy for Flood and Coastal Erosion Risk Management in England. As noted above the term 'strategy' is not defined in the draft Bill; furthermore Natural England noted that the draft Bill "is silent on the approach and content of the proposed National Flood and Coastal Erosion Risk Management Strategy".[53] Clause 15 does state that the FCERM strategy should "have regard" to the desirability of "minimising detrimental effects on the chemical, biological and other characteristics of water". Lord Smith agreed that "the greater the degree of clarity from Government on [the National Strategy] the better".[54] However, he appeared to be unconvinced that defining 'strategy' would "make whatever strategy is put in place better…"; although in the course of our exchanges he did provide some sense of what such a definition would need to encompass.[55] For example, he said that the Agency would "…produce the very best assessment of the current position, assessment of the likely risks, assessment of the impact of climate change, assessment of the investment needs which we have identified and the long-term strategy to address those".[56]

26. There are precedents for strategies or policy statements being defined in legislation, for example the provisions for Marine Policy Statements in Part 3 of the Marine and Coastal Access Bill, and Part 2 of the Planning Act 2008 contains provision for the Government to produce National Policy Statements. We note that Clause 18 provides for an order making power under which the Secretary of State may specify the content of a report on flood and coastal erosion risk management.

27. Clarity on the form of the National Flood and Coastal Erosion Risk Management Strategy should be clearly provided on the face of the Bill; or through an order making power subject to the affirmative Parliamentary procedure. We further recommend that the Bill provides for the strategy being reported to Parliament.

28. We recommend that Defra publish now details of how the strategy will be prepared, scrutinised and how, and over what cycle, it will be reviewed.

Local authorities' strategies

29. Clause 19 requires a lead local authority in England to develop and apply a local strategy consistent with the national strategy. Local authorities recognised the need for a "coherent overarching structure" but considered that the Bill fell short in "how it is subsequently delivered on the ground".[57] Councillor Smith, Deputy Leader of Suffolk Coastal District Council, said that whereas in the past there was direct interaction between Defra and the local authority, now decisions were taken by the non-elected Environment Agency Board.[58] He argued that the Bill would "institutionalise […] a situation where [there is a] disconnect between us and our electorate as to what needs to be done and what the pros and cons are and all the socio-economic effects of doing a scheme or not doing a scheme…".[59] He told us that:

…there must be a better way to reinstate somehow a different governance model for the link between the EA's decision-taking role at the top and ourselves as both the operating authority for erosion and the democratic and planning authority and all the rest of it, including for coastal flooding, to try and find a more flexible way which can be tailored locally to reinstate that link.[60]

Mr Peter Jones, Deputy Chief Executive of Gloucestershire County Council, referred to "a gap between where local accountability sits and strategic decisions are made".[61]

30. Mr Jones set out the complexities of his council's local geography which contained three regions of the Environment Agency, four water authorities, an Inland Drainage Board, and six district councils. He therefore considered it essential for there to be a mechanism sufficiently flexible to reflect local differences, for example a joint management board.[62] He said that the council wished to see a "point of contact" where local communities can influence decisions.

31. Several organisations expressed reservations about the use of administrative boundaries. The Local Government Flood Forum said that the Bill would not be workable if it "omits the issue of geographic and administrative boundaries".[63] The Natural Environment Research Council (NERC) considered that the emphasis on catchment areas in the flooding aspects of the Bill was "certainly in the spirit of the Pitt review" and catchment scale approaches made it easier to "apply hydrological and ecological science" to protecting river ecosystems.[64] The National Farmers' Union also supported catchment scale management and said it was "still not clear how the Government is going to join things up across lead local authorities' boundaries".[65] The Regional Flood Defence Committees believed that the administrative framework would introduce a "big practical gap" with well over 100 lead local authorities and a single national agency.[66]

32. Councillor Andy Smith, Deputy Leader of Suffolk Coastal District Council, differentiated between local authorities that were principally concerned with flooding and councils, such as Suffolk Coastal, that were concerned with coastal erosion. He described flooding as "traumatic" but temporary, whereas coastal erosion was "terminal".[67] Lord Smith explained that managed realignment (or managed retreat), whereby an area that was not previously exposed to flooding by the sea is allowed to flood by removal of coastal protection, was not a preferred option but was necessary in some instances. He added that it needed:

…to be looked at in detail in each specific instance together with local communities which may be affected. These are not decisions just for us alone, these are decisions which have to be taken together with the people in communities that might be affected and that is a point which we have been making very strongly to Government.[68]

33. Councillor Smith noted that 'managed retreat' could refer either to positive circumstances where land is flooded for ecological and other purposes, or to circumstances where budgets "cannot fund anything". He urged that "irreversible long term decisions" should not be taken "based on short term funding issues".[69]

34. A challenge for Defra is reconciling the Bill's aim of clarity in assigning responsibilities with the flexibility to enable locally appropriate solutions to be implemented. It was clear to us during our inquiry into the 2007 floods that local authorities were well placed to lead on local flood and coastal erosion risk management. Local authorities' existing responsibilities, such as for highways and planning, touch on a wide range of activities associated with flooding. Furthermore, local authorities are democratically accountable. In our Flooding report we noted that while local authorities frequently had the experience and local knowledge, they lacked the powers to ensure cooperation and compliance.[70] That deficiency has been addressed in the draft Bill. We are concerned that the draft Bill establishes a rigid vertical structure, which potentially precludes pragmatic cross-boundary area-based approaches that accommodate local people's views and knowledge. We are concerned that local people do not have a seat at the table and the Bill's proposals will dilute the ability of an articulate community to influence decision making.

35. Clause 16 requires that the Environment Agency publish its national strategy. Similarly, Clause 20 requires a summary of each local strategy to be published. Clause 20 states that the summary can include information about arrangements made for coordinating with others. Ofwat expressed concern that:

…the proposal that the national and local flood risk management strategies will not be in the public domain (because the Environment Agency and local authorities only have a duty to publish summaries of the strategies). The Environment Agency and local authorities also appear to have no duty to consult those who might be affected when devising strategies.[71]

36. The Minister pointed to the fact that the Environment Agency's strategy would not necessarily be one document, but is highly likely to be a "series of documents, policy statements, guidance notes, maps, plans etc".[72]

37. Subject to any concerns on national security grounds, the national flood risk management strategy should be published in full to guide the many organisations and bodies who will need to refer to it. Similarly we see no reason for local authority plans not to be published.

38. Clause 22 requires a "relevant authority", when exercising its flood and coastal risk management functions, to "act in a manner which is consistent with the Environment Agency and local authority strategies and the guidance issued in relation to those strategies". Clause 23 requires a wide range of bodies as specified in subsection (2) to act in the exercise of any of its functions that may affect flood or coastal erosion risk to have regard to the national and local strategies and any associated guidance provided under Clauses 17 and 21.

39. Ofwat argue that Clause 22 could enable the Environment Agency and local authorities to impose obligations on water companies, which could have consequential affect on customers' bills. The regulator expressed concern that "there is no clear mechanism for testing and ensuring that the costs of any obligations these provisions create would be justified by the benefits, or for accountability on the part of local authorities in this context".[73] Ms Regina Finn, Chief Executive of Ofwat, said that "we think there is an opportunity to work to make this part of the Bill work quite a bit better and ensure that those people who take decisions understand the cost implications and there is accountability and responsibility better balanced".[74]

40. The provisions in Clause 22 provide the Environment Agency and local authorities with a broad power over potentially a wide range of public bodies and private individuals. We acknowledge the concerns raised by Ofwat and accept that there could be an impact on customers' bills. A balance must be struck between providing those with responsibility for flood and coastal erosion risk management with the necessary tools to do that job and ensuring that those bodies do not place undue obligations on the water companies or others. We recommend that Defra clarifies how this power is expected to be exercised and in what circumstances it would not be applied.

CONCLUSIONS

41. We are concerned that the Bill lessens democratic input into policy making by both ceding power from the Secretary of State to the Environment Agency, a non-elected body, and weakening the roles of local politicians. The draft Bill comes down on the side of centralising power at the expense of local democratic engagement. There appears to be no requirement for the Environment Agency to consult on the content of its strategy. Local strategies will be subject to democratic accountability but the Bill does not provide for scrutiny of the national strategy or provide for the Environment Agency to be accountable for its content. Flood risk management directly impacts upon spatial planning for the 16% or so of the country which is at risk of flooding, and the remaining part of the country which generates the run-off that results in flooding. Flood risk management is part of the spatial planning process. Local authorities could usefully build on the experience and innovations of councils such as Suffolk Coastal District Council who have demonstrated how this objective can be achieved.

42. Defra must explain how the national plan will relate to local spatial planning. Local authorities are already responsible for the spatial planning process, and this Bill also gives them a remit for flood and coastal erosion risk management planning. Authorities will have to fit the two together and synchronise the cycles for revising and updating their plans.

Cooperation

43. Clauses 24 to 30 require a long list of bodies, and potentially individuals, to cooperate with one another in relation to flood and coastal erosion risk management, including sharing information and delegation of functions. There is an inherent tension in ordering people to cooperate; to get effective cooperation it is first necessary to establish trust. The underlying conceptual basis of the over centralising approach is that optimum flood risk management can be achieved by experts applying objective criteria to determine what needs to be done and then giving them the powers to do it. However there will be circumstances where value judgements must be made and this requires a collaborative, consultative approach and clarity over the basis on which decisions are being made.

44. The water industry and the regulator expressed some concerns about the safeguards surrounding the requirements to share data. Water UK explained that it had developed, with the Environment Agency, a protocol on the principles of data sharing, which might be extended to include local authorities.[75]Ofwat have argued for regulations governing the provision of sewerage information to local authorities, by water and sewerage companies, for the purposes of local flood risk management and surface water management plans. Ofwat considered such regulations should ensure that the information is technically sufficient for the purposes of surface water management planning, but excludes commercially or privately sensitive information or restricts its use or disclosure.[76]

45. We commend the water industry and Environment Agency for initiating work to improve data sharing. We recommend that Defra consider whether guidance on data sharing, including the safeguards that should be in place, should be provided for in secondary legislation.

Supplemental powers and duties

46. Clauses 34 to 41 set out supplemental powers and duties of the Environment Agency. Clauses 42 to 49 set out supplemental powers for local authorities. The draft Bill provides the Agency and local authorities with powers to carry out work, or direct others to carry out works,/ in accordance with the national or local flood and coastal erosion risk management strategies or for the benefit of the natural environment. The National Farmers' Union (NFU) expressed concern about the Agency's use of general powers, describing the Bill as being "power heavy and duty light".[77] For example, Clause 41 confers a power on the Environment Agency to carry out work that may cause flooding or coastal erosion, subject to certain conditions (including those listed in Clause 6(3)), if it considers such works would benefit the natural environment. The NFU questioned the appropriateness of Clause 41, noting that while the Clause required the Agency to 'have regard to' its own national strategy, "there is no requirement that the work be for the purpose of flood or coastal erosion risk management or any related purpose (e.g. compliance with the EU Water Framework or Floods Directives). Given that, this stand-alone power should not feature in this Bill and should be removed".[78] Lord Smith described the potential conflict in the draft Bill as reflecting "a potentially conflicting case of objectives on the ground".[79] Lord Smith said that he was determined that there should be discussion with communities to reach an agreed conclusion rather than imposing a solution.[80]

47. Clause 34 confers a power on the Environment Agency to carry out works. The consultation document states that Clause 34:

will be accompanied by various protective measures, such as a requirement on those bodies to give notice of intended works, provisions for members of the public to make objections, appropriate compensation provisions and provision that will enable the compulsory purchase of land.[81]

48. The word "appeal" is not specifically mentioned as a protection to be introduced. The potential limitations on the powers to carry out works causing flooding or coastal erosion (in Clause 6(3)) imply that decisions to carry out such works will involve balancing the public interest in creating flooding or coastal erosion with private rights, for example over property. However, without a full right of appeal to an independent tribunal or court capable of determining the facts, this would not satisfy Article 6 of the European Convention on Human Rights (right to a fair hearing). In its recent consideration of the coastal access provisions in Part 9 of the Marine and Coastal Access Bill, the Joint Committee on Human Rights said that:

…where the determination of the civil right requires the determination of prior factual questions, the decision of the European Court of Human Rights in Tsfayo v UK makes clear that the availability of judicial review alone is not sufficient: there must be an independent court or tribunal with jurisdiction to determine the factual question in issue.[82]

49. Those affected by flooding and coastal erosion have vital concerns at stake and will necessarily want to argue their case, whether or not public engagement is wanted. The reality is that flood risk management concerns people's homes and livelihoods, and, in some circumstances, their lives. There will be occasions when local communities' wishes run contrary to flood and coastal erosion risk management strategies. For example, it will be necessary to abandon or retire some flood and coastal defences as climate change requires that we adapt to higher flood flows and sea levels. However, local communities must have an opportunity to become involved in the decision making process rather than be left with what they will see as a fait accompli. Evidence from local community groups to our inquiry into the 2007 flooding complained about the inadequacy of consultation over the preparation of the local Shoreline Management Plans. There is a risk that local communities will see the courts as the first and only remedy rather than the last resort, and will approach the Agency as an adversary. The approach to flood risk management should seek to reconcile necessarily conflicting interests and the Bill must ensure that powers are matched by the appropriate opportunities for individuals or communities to appeal against decisions. We do not consider the protections referred to in the consultation document to be sufficient. We recommend that Defra include provisions that establish appeal mechanisms against the powers of the Environment Agency and local authorities set out in Clauses 34 to 49. Such mechanisms must provide for an independent court or tribunal to decide appeals.

EU Floods Directive

50. According to the consultation document, Clauses 50 to 63 transpose the EU Floods Directive into domestic legislation.[83] Defra told us that the EU Floods Directive must be transposed by 26 November 2009 or "infraction proceedings would formally begin", although provided legislation was in train it was "very unlikely" the Commission would take any action.[84]

51. If there is insufficient Parliamentary time to transpose the Directive through primary legislation in a Flood and Water Management Bill, an alternative approach is to enact the provisions through Section 2(2) of the European Communities Act 1972.[85] Defra told us that the Section 2(2) approach would need to include Clauses 50 to 63 with the associated definitions, plus some other provisions such the 'Duty to Co-operate' and 'Powers to Acquire and Share Information". Defra said it was possible that, to be fully effective, the arrangements set out in any such regulations would also need certain pieces of Environment Agency guidance to be in place (on national strategies) in relation to the assessment of significant risk. These strategies are currently mentioned in Clauses 15 and 19 of the draft Bill. Defra said, however, that such guidance and strategies can be produced by the Environment Agency without legislation requiring them to do so. Therefore it may not be necessary to replicate parts of these provisions in any Section 2(2) measure.[86]

52. It is not uncommon for provisions required under European Union Directives to be enacted via the Section 2(2) route, which is quicker and less onerous for Government than pursuing primary legislation, but is subject to less Parliamentary scrutiny. Defra told us that:

Regulations under s.2(2) may not themselves create powers to make further secondary legislation. Currently, clauses 50 to 63 of the draft Bill contain several powers to make further orders or regulations, all of which we propose should be subject to the negative resolution procedure. If we use the s.2(2) approach, the provisions that might have been made under delegated powers in the draft Bill (once law) would have to be included in the regulations themselves. In either case, therefore, these detailed measures would be subject to Parliamentary approval through the negative resolution procedure.

Defra gave a commitment that if the Section 2(2) approach were used, it would not make the regulations until the autumn, once the House is sitting, so that "we could give the maximum consideration to the results of pre-legislative scrutiny and ensure that Parliament had the greatest opportunity to scrutinise those regulations".[87] We agree with Defra that it would be preferable for the transposition of the EU Floods Directive to be achieved through a Floods and Water Management Act. If the Government is unable to pass the necessary primary legislation, the Section 2(2) of the European Communities Act 1972 route is available, although it is very much second best. We recommend that Defra make clear to the European Commission the benefits of including the provisions of the Directive in comprehensive legislation and seek assurances that the UK will not be subject to infraction proceedings before the Bill passes into law.

Regional Flood and Coastal Committees

53. Clauses 66 to 73 relate to Regional Flood Defence Committees (RFDCs), which would be renamed Regional Flood and Coastal Committees (RFCCs). The draft Bill's provisions specify the membership arrangements for the committees, and their role advising the Environment Agency. Several witnesses considered that the Bill's provisions diminished the role of RFDCs. The Regional Flood Defence Committees argued that their role should be strengthened under the Bill, and considered that the current Clauses "would in practice diminish their influence in the future and might have the effect of deterring senior Councillors and others from becoming members".[88]The Association of Drainage Authorities echoed those views and "strongly disagrees" with altering the status of the committees, which it argued would diminish local democratic input into the decision making process.[89]

54. Local authorities, including Gloucestershire County Council, however, questioned the value that existing RDFCs brought and noted that their public accountability could be improved.[90] Our witnesses from local authorities favoured catchment area flooding boards.[91] The Regional Flood Defence Committees emphasised that the majority of their membership was elected local authority members which therefore ensured "local democratic input into the decision making process".[92] Lord Smith endorsed the work done by RFDCs but took the view that in practice the draft Bill's provisions would not alter the role of RFDCs. He noted that the committees would retain their executive role in relation to local levy expenditure.[93]

55. We consider that the local authority proposal for catchment area flood management boards, similar to Regional Flood Defence Committees, has much to recommend it. We recommend that Defra explore this approach with local authorities and bring forward provisions that would enable the creation of catchment area flood management boards. The Bill should require decision making bodies to explain how they have taken into account any advice from regional advisory bodies, or their reasons for rejecting it.

46 Q 77 Back

47 Ev 163 Back

48 Ev 164 Back

49 Ev 165 Back

50 Ev 165 Back

51 Ev 183 Back

52 Q 239 Back

53 Ev 159 Back

54 Q 70 Back

55 Q 83, Qq 82-86 Back

56 Q 83 Back

57 Q 222 Back