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


Memorandum submitted by the National Farmers' Union (DFWMB 02)

INTRODUCTION AND SUMMARY

  1.  The NFU welcomes this opportunity to comment on the draft Flood and Water Management Bill. We are the largest organisation representing agricultural and horticultural businesses in England and Wales. Our members are farmers, growers and land managers and, as such, have a keen interest in the way flood and coastal erosion are managed.

2.  We have tried to restrict our comments to those we believe will assist the Committee at this stage of the Bill's life; hence we have not repeated the wider concerns about the causes and effects of flooding that we raised in the aftermath of the 2007 floods. We have instead focussed on issues we consider will make the Bill a better one and on proposals which will have potentially significant effects for our members. Our comments cover both England and Wales (where applicable); NFU Cymru will be responding to the Welsh Assembly Government on the questions raised in Annex A of the Consultation.

3.  This submission makes comments about:

    —  the role of the Environment Agency;

    —  the role of lead local authorities;

    —  designation of third party assets;

    —  the new reservoir regime;

    —  Internal Drainage Boards; and

    —  new statutory nuisances and run-off reduction zones.

  In addition, we have made brief comments addressing the questions asked in the Committee's terms of reference.

ENVIRONMENT AGENCY (PP 27-32 OF THE CONSULTATION AND CLAUSES 15-49 OF THE BILL)

  4.  The NFU appreciates the need for a single, coordinating body to be responsible for all types of flooding, and understands the reasons for the Environment Agency being given this role. However, we consider that the draft Bill's provisions are power-heavy and duty-light, both in terms of the Agency's strategic overview role and its operational activities. There is a strong sense of disconnection between those on the ground who are affected by flooding and the Agency and a perception among many farmers that there has been inadequate maintenance of defences in rural areas and insufficient dredging of rivers.

5.  We would suggest that, as a minimum, the following additional duties be included on the face of the Bill:

    —  an express duty for the Environment Agency to consult on the national strategy ahead of its publication; this is vital given the status of the national strategy for flood and coastal erosion risk management and, in particular, the requirement placed on authorities further down the line to act consistently with the strategy; and

    —  a requirement for the Agency to publish its maintenance schedules and the risk assessments which it has made in determining its approach.

ENVIRONMENTAL WORKS (CLAUSE 41)

  6.  We would question the appropriateness of clause 41 of the draft Bill. It enables the Agency "to carry out work which will or may cause flooding or coastal erosion" if the Agency thinks the work is "desirable for the benefit of the natural environment". Whilst the Agency must "have regard to" its own national strategy and the work must not increase the potential harmful consequences to human health, social and economic welfare of individuals and communities etc, there is no requirement that the work be for the purpose of flood or coastal erosion risk management or any related purpose (eg 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.

LEAD LOCAL AUTHORITIES (PP 34-51 OF THE CONSULTATION AND CLAUSES 19-22 AND 42-49 OF THE BILL)

  7.  We recognise that what is proposed is probably going to happen, but would re-iterate our two main concerns with the proposed change. Firstly, it is far from certain that lead local authorities will have the necessary expertise and skills for the lead role. Secondly, local authority boundaries do not follow catchment boundaries, whereas all recent drivers for water management, including the EU Water Framework directive and the EU Floods Directive, are based on hydrological catchments.

8.  We want to see water and flood management dealt with on a whole catchment scale and not on the basis of administrative boundaries (this also relates to land management measures). It is still not clear how the Government is going to join things up across lead local authorities' boundaries. We wonder whether there should be a general duty on lead local authorities to co-operate with each other to ensure the bigger catchment picture is taken into account (there is already a duty on relevant authorities to co-operate with other relevant authorities).[7] 41

  9.  The other general question we have is about how disputes and disagreements between relevant authorities (including the Environment Agency) will be managed. We think there might be a case for an independent adjudicator of some sort to whom relevant authorities can refer disputed matters.

  10.  We would make the following comments on the detail:

    —  We welcome clause 44's requirement that the lead local flood authority establish and maintain "a register of structures or features which may affect a flood risk in its area" and a record of information about each of those structures or features—we believe this comprehensive survey will help identify where risks are and where work may be needed to avoid flooding incidents. However, it is not clear whether the "flood risk in its area" refers to the result (ie the flood) affecting the local authority's area or whether the structure or feature is in its area (but might result in a flood in another authority's area); this needs to be clearer and, in our view, "in its area" should refer to the structure or feature rather than any resulting incident.

    —  The Government accepted the Pitt Review's recommendation that local authorities should investigate local flooding incidents with all relevant parties to identify the source of the problem, ownership and "where responsibility lies for addressing it", but we can find no express requirement for them to do this in the Bill (see clause 43)—we would like to see this as a statutory requirement. Again, clarity about legal responsibilities and liabilities is a first step to tackling the problem of flooding risk.

    —  There should be an express duty for lead local authorities to consult on their local flood risk management strategies—this will increase transparency and help build local confidence in the strategy.

THIRD PARTY ASSETS (PP 62-64 OF THE CONSULTATION AND CLAUSES 75-97 OF THE BILL)

  11.  We are concerned about the effect of clauses 75-97 on farmers and other private property owners, particularly as regards the potential imposition of an obligation to keep the structure or feature in reasonable repair (as mooted in the Government's Consultation).[8] 42 Whilst agreeing with the principle that structures and features which contribute to flood or coastal risk management should be registered and their condition monitored, we cannot accept that this should lead to restrictions on owners' freedom to alter, remove or replace them, still less that the owner should fund their maintenance as part of their contribution to local flood risk funding. These are assets which assist in reducing risk; their maintenance should be encouraged, not enforced.

  12.  According to the Government's Impact Assessment,[9] 43 the proposed legislation will "ensure that parties bear a greater share of the costs and risks they impose on others, including on the taxpayer". We have no quibble with that general principle, but do not believe that an imposition of repairing obligations on private parties whose assets contribute to flood management is consistent with it. We would encourage the Government to consider using negotiated management agreements, for example where an asset is not directly contributing to the profitability of the owner's business but has a critical flood control function[10]44 or following new urban development "upstream" of a structure or feature.


RESERVOIR SAFETY (PP 66-71 OF THE CONSULTATION AND CLAUSES 98-191 OF THE BILL)

  13.  On a similar note, we are concerned about the changes to the reservoir safety regime that the Bill contains. We agree that a risk rather than standards-based approach to reservoirs is the right way forward and are pleased it will lead to significant de-regulation for owners of low-risk, large reservoirs. But we would argue that the inclusion of all reservoirs of over 10,000 cubic metres within the revamped regime is, to be blunt, using the proverbial hammer to crack a nut.

14.  Many small reservoirs are on-farm irrigation reservoirs, sited away from urban populations and critical infrastructure. These on-farm reservoirs are encouraged by the Environment Agency and others as a way of using water more efficiently and reducing the environmental impacts of summer abstractions. If water is needed for irrigation of crops, on-farm storage reservoirs can store water abstracted in the winter period and the water can then be used in the summer to help meet peak demands. As the Environment Agency says in its recent Water for people and the Environment publication,[11] 45 "Having suitable sites available for reservoirs and access to funding will be important in managing water resources, particularly for agriculture".

  15.  If what is proposed in the draft Bill is implemented without regard for the potential burden it will place on existing and future owners of small on-farm irrigation reservoirs, there is a real risk that what the Government is encouraging with its water resources arm will be made considerably less attractive by its flood risk management arm. This is hardly in line with the holistic, integrated approach to water issues the Bill aims to create.

  16.  Looking at the Bill's provisions, the Government must find a way to avoid the circular process under which full provision of information by any owner/manager of a reservoir of over 10,000 cubic metres must be provided before it can be decided whether that particular reservoir is low risk. By the time he finds out that it is considered low risk, the owner will have spent considerable time and money on compiling and submitting information and the Environment Agency will have incurred needless administrative costs.

  17.  Our recommendations are as follows:

    —  there should be a preliminary pre-registration process which screens out from full information provision small eg on-farm storage reservoirs which are evidently low risk in terms of inundation threat;

    —  if such reservoirs are considered low risk, they should be exempt from the requirement to display emergency response information at or near the reservoir (clause 177);

    —  a similar preliminary screening process for new reservoirs should be introduced, to enable clearly low-risk constructions to be exempted from the costly and burdensome requirements set out in clauses 106-115; and

    —  if the Government is set on requiring inundation maps for all reservoirs of over 10,000 cubic metres, the Bill should place an express duty on the Environment Agency to prepare those maps and the Government should fund the work (the Government has accepted Recommendation 57 of the Pitt Review).[12] 46

INTERNAL DRAINAGE BOARDS (PP 72-82 OF THE CONSULTATION)

  18.  IDBs will undoubtedly be making their own views known on the Government's proposals, but we would like to take this opportunity to make some comments. We had good feedback from farmers about the roles and actions of IDBs during the 2007 floods. Their expertise, the fact they have specialist equipment and a dedicated workforce, and their well-defined statutory functions and funding streams mean that they are well-placed to make a flexible and effective contribution to flood risk management. We are concerned that if taken up in their entirety, the Government's proposals could severely curtail the ability of IDBs to fulfil their role. We are referring in particular to the proposed changes to the IDBs' supervisory role over land drainage and their control over funding; it is the cumulative effect of the proposals that is worrying.

  19.  The Pitt Review was one of the widest ranging policy reviews ever carried out in the UK and was backed up by an extensive body of evidence; it dealt with big structure issues and how the work of relevant authorities could be better joined up and their responsibilities clarified. If the Pitt Review saw no grounds for recommending that the IDB special levy should be replaced with agency or contractual arrangements between IDBs and local authorities, then we believe we are on secure ground opposing the proposal.

  20.  In addition, the proposed removal of the limit on the number of local authority representatives on IDB Boards has the potential to reduce the effectiveness of decision-making. It is the farmer members of Boards who have the expertise and local knowledge which is vital to sound planning in this somewhat specialist area.

  21.  In contrast, we support the proposals which will allow the IDBs to form innovate delivery models, amalgamate more easily and expand their boundaries beyond their traditional areas.[13] 47 These would pave the way for IDBs to become more efficient and, importantly, to be able to operate at whole catchment level, with all the benefits that would bring.

NEW STATUTORY NUISANCES AND RUN-OFF REDUCTION ZONES (PP 89-92 OF THE CONSULTATION)

  22.  One of the Government's proposals, not yet included in the Bill, is to create a statutory nuisance of failing to maintain the flow of water through a watercourse. The Government's view is that this would harmonise the law on flood risk with that on other risks to health that can be caused by neighbours (eg due to noise or smoke). We understand the reasoning behind the proposal and are fully aware that it could cut both ways for farmers. But we do not think that failure to maintain watercourse flow is directly comparable with noise or smoke nuisances where enforcement actions are usually targeted at specific sources and responsibility for the nuisance can be attributed to a particular business or person. Blockages along stretches of watercourse are more complex; there may be various contributory factors in play and action by one responsible party may not solve the problem.

23.  As far as the proposed run-off reduction zones in respect of farmland are concerned, we are extremely concerned that—following the identification of surface run-off as a major factor in the 2007 floods—enforcing authorities will over-react to the risk posed by run-off from agricultural land and rush to enforce rather than encourage better land management practices. The implications for farmers and growers could be severe, with particular crop types such as potato and maize particularly affected, agronomic rotations potentially interrupted and their businesses curtailed. Defra has only recently consulted on how Water Protection Zones can be used to help achieve Water Framework Directive targets.

QUESTIONS ASKED BY THE COMMITTEE

Are the powers in the Draft Flood and Water Management Bill sufficient to enable full implementation of the Pitt Review recommendations?

  24.  The NFU believes that the powers are sufficient, but that the Bill fails to include some of the duties envisaged by the Pitt Review. Examples are given in the main body of our submission.

Does the draft bill achieve the right balance between protecting the environment and protecting homes and businesses from flooding?

25.  As we mentioned in our main submission, we do not believe that the Bill should give the Environment Agency a stand-alone power to carry out works that are desirable for the benefit the environment (clause 41) unless they are for the express purpose of managing flood or coastal erosion risk. In addition, it is vital that both the Agency and lead local authorities have an express duty to consult on their flood risk management strategies; this will provide an avenue for stakeholders to make their views known and should help maintain a balance between environmental protection and protecting homes and livelihoods from the impacts of flooding.

Are the proposals contained in the draft bill necessary, workable, efficient and clear? Are there any important omissions in the Bill?

26.  We have raised our main concerns in the body of our submission.

Is the proposed institutional framework appropriate and sufficient for the enforcement of measures contained in the draft bill?

27.  Overall, yes. We think that local authorities rather than Agricultural Land Tribunals should have enforcement powers in relation to any statutory nuisances that are created by the Bill;[14] 48 the ALT is a quasi-judicial body rather than an enforcement authority.

Is the balance struck between what has been included on the face of the draft bill, and what goes into Regulations and the Code of Practices right?

  28.  We are disappointed to see no reference to the Water Industry's Code of Practice in the hosepipe bans section of the draft Bill (clause 254). We would like to see an express duty for water companies to produce the Code of Practice and have regard to it when using their powers to restrict discretionary uses of water. This will help ensure transparency and consistency of approach by water companies during times of water shortage.

What are the likely financial resource implications of the draft bill?

29. We are not in a position to comment in detail on resource implications (we take this to mean public rather than private party cost implications). However, we believe that whatever figure the Government puts on the increased costs to lead local authorities of carrying forward the Bill's proposals and the Pitt Review recommendations, it will be an underestimate. Even something non-operational like creating a register of assets and recording ownership and condition will be a mammoth task if it is to be an effective tool in managing flood risk.

Has the Government analysed the effects of the draft bill adequately, and has it taken sufficient account of consultation?

30.  We do not think the Government has appreciated the potential impact on small farming businesses of bringing small reservoirs into the revamped reservoir regime or the potential conflict between two of the Agency's policy objectives. If the proposals are implemented as currently drafted, they could act as a disincentive to future small-scale water storage projects.

31.  Equally, we do not think the Government has appreciated the potential cost to owners and occupiers of rural land of maintaining ordinary watercourses downstream of new developments.

32.  The impact of the IDB reform proposals, particularly those relating to governance and funding, have not been adequately analysed; their effect on the effectiveness of IDBs could be severe.

33.  Given their potential effects on livelihoods, the statutory nuisance and run-off reduction zone proposals also need further detailed consideration.

National Farmers' Union

May 2009





7   41See clause 24 of the draft Bill. Back

8   42See p 64 of the Consultation and Consultation Question 78. Back

9   43See p 6 of the Summary Note on Impact Assessments for the draft Flood and Water Management Bill. Back

10   44There is already a power for relevant authorities to "make arrangements for financial and other support for action taken by persons in respect of a risk of, or in preparing to manage the consequences of, flooding or coastal erosion" (clause 7(3)(g) of the draft Bill). Back

11   45Water for people and the environment, March 2009, sets out the Environment Agency's Water Resources Strategy for England and Wales to 2050. Back

12   46See p 91 of The Government's Response to Sir Michael Pitt's Review, December 2008. Back

13   47See paras 374-377 and 380-384 of the Government's Consultation. Back

14   48See pp 89-91 of the Government's Consultation. Back


 
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