4 Designation of features
56. The National Audit Office's June 2007 report
on the construction and maintenance of flood defences in England
found significant regional variations in the proportion of assets
maintained by third parties.[94]
For example, of the approximately 11,000 flood risk assets in
the Thames region, the Environment Agency own around 10-15%.[95]
Such assets might include, for example, purpose-built flood defences
constructed by developers to protect particular buildings and
existing structures such as factory walls which form part of a
continuous linear defence. The NAO found that the proportion of
third party assets in good or very good condition was lower than
for Environment Agency-maintained assets. It also found that the
Agency had very limited powers to force other bodies to improve
the condition of their assets.
57. Part 2 of the draft Bill (clauses 75 to 97) includes
powers for the designation of "things" (a structure
or natural or man-made feature of the environment) that are owned,
maintained or operated by third parties, if they are considered
to affect flood or coastal erosion risk. The Bill confers these
powers on the Environment Agency, local authorities and Internal
Drainage Boards.[96]
We asked our witnesses from local authorities and the Environment
Agency about these powers. None seemed sure what a "thing"
was. Mr Runcie referred to culverts.[97]
Mr Gibson from Hull City Council suggested that features such
as "mounds or ridges" should potentially be included.[98]
Mr Gibson added that uncertainty about what constituted a relevant
structure was compounded by the fact that many structures, such
as walls to stop pedestrians falling into rivers, did not principally
have a flood management role. Dr Leinster from the Environment
Agency explained how the process might be applied:
If you take, as an example, Leeds and you take the
river running through Leeds, then the flood defences will be provided
by walls to car parks, the backs of factories, some purpose-designed
defences and, as you say, some culverts. The purpose of this is
to understand, and then what we need to look at is whether you
can place a requirement on someone to maintain—if that is
an asset which is there providing flood defence, whether or not
there can then be a requirement placed upon them to maintain that
in a way which maintains the flood defence properties.[99]
58. Ofwat was concerned that the provisions might
lead to increased costs for the water industry and therefore for
water consumers. Ms Finn, chief executive of Ofwat, explained
that the current drafting could enable the Environment Agency
to designate an entire sewerage system.[100]
Mr Runcie, from the Environment Agency, explained that the Agency
already recorded these assets and that the purpose of the provisions
was to enable them to collect information on the ownership of
those assets.[101]
59. We are concerned
that bodies that would be able to designate "things"
appear unsure about their scope or scale. The purpose of the provisions
is not in question but there needs to be greater clarity about
what could be designated, how the designating authorities would
coordinate with one another and how differences of opinion between
designating authorities would be resolved.
60. The third party owners of designated assets would
not be able to remove, alter or damage them without prior consent.[102]
The consenting process would enable any approved works to
be carried out in line with any reasonable conditions imposed.
Unauthorised works on designated structures, might lead to an
enforcement notice to remedy the situation, and failure to comply
with this notice would amount to an offence. The consultation
document seeks views on whether third parties should be required
to maintain such assets in proper condition.[103]
61. Appeals against: designations; refusals of consent
for alterations; refusals to cancel; and enforcement notices will
be provided for in secondary legislation that will "confer
jurisdiction on the Minister, a court or a tribunal".[104]
The Joint Committee on Human Rights (JCHR) has consistently taken
the view that, where it is likely that safeguards, and in particular
provisions for appeal, are necessary to satisfy the right of access
to an independent and impartial tribunal guaranteed by Article
6(1) of the European Convention on Human Rights (ECHR), these
safeguards should be expressly provided for on the face of the
Bill.[105] The JCHR
also said:
In order to be considered adequately independent
and impartial to satisfy the requirements of Article 6(1) ECHR,
the relevant "tribunal" must be independent of the executive,
the parties and the legislature.[106]
62. Clause 95 provides that the regulations can confer
jurisdiction on the Minister or a court or tribunal. The Minister
is clearly not an independent body. Provisions
providing safeguards and appeals should be included in the Bill.
The lack of such provisions in the draft Bill is a serious deficiency.
The legislation would confer substantial powers on designating
authorities and the checks and balances should have been available
for this Committee to scrutinise and for stakeholders to comment
upon. We recommend that Clause 95 be amended to exclude the Minister
from the list of bodies that could consider appeals in relation
to Part 2.
94 Report by the Comptroller and Auditor General, Environment
Agency: building and maintaining river and coastal flood defences
in England, HC 528 (2006-07), p 16. Back
95
EA Asset Management Conditions Targets, Thames Regional
Flood Defence Committee Report No. T/RFDC/09/23 Back
96
Clause 80 Back
97
Q 100 [Mr Runcie] Back
98
Q 268 Back
99
Q 109 Back
100
Q 210 Back
101
Qq 107-108 Back
102
Clause 81 Back
103
Defra, Draft Flood and Water Management Bill, Cm 7582,
April 2009, consultation document, paragraphs 308-312. Back
104
Clause 95(2) Back
105
Joint Committee on Human Rights, Fifth Report of Session 2005-06,
Legislative Scrutiny: Second Progress Report, HL Paper
90/HC 767, paras 3.25-3.26. Back
106
Campbell and Fell v United Kingdom (1984), 7 EHRR 165, para 78. Back
| 
