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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