Examination of Witnesses (Questions 100-119)
RT HON
LORD SMITH
OF FINSBURY,
DR PAUL
LEINSTER, MR
ROBERT RUNCIE
AND MR
IAN BARKER
3 JUNE 2009
Q100 Chairman: Now we move on to
the chunk of the bill that is clauses 75-97. There is a wonderful
thing I see in clause 80 where is says, "A designating authority
may designate a thing for the purposes of this part if the following
conditions are satisfied." Perhaps you will be able to assist
us in understanding how you are going to designate "things"
and what actually constitute "things"? Is it a new concept
in flood defence technology, a "thing"?
Lord Smith of Finsbury: I am going
to seek advice on that!
Mr Runcie: I think in designating
that simple term "things", will pick out culverts, the
conveyance of channels, and all aspects which bring together what
constitutes a flood risk system. We need to be clear about what
those "things" are.
Q101 Chairman: True, but it is actually
quite important even in just the brief description which you have
given. Are you satisfied? The bill gives you a duty to get on
with designating, but it strikes me that it is almost like a sort
of Domesday Book of potential assets or things which could be
potentially a flood risk. I presume these will include the things
that we know about and some things that we do not know about.
Are you happy that this bill contains the degree of clarity to
enable you to put together effectively a register of the assets
which would be relevant to flooding because, as I say, it is quite
loosely defined and I am just interested in getting a feel for
the practicalities? As far as I can see, either you or the local
authorities—who actually would be responsible for this "thing"
identification?
Lord Smith of Finsbury: Certainly
the bill gives us a considerable breadth of scope on this particular
point. What that means in practice is that we will do the most
important things first. We will identify the most significant
points of flood risk first. We will do that in conjunction with
local authorities and other stakeholders and I suspect this particular
clause in the bill is one which gives us permission to get on
with the job rather than specifying in particular detail how we
should do it.
Q102 Chairman: Yes, but we are talking
about practicalities here. For example, if you are a landowner
and you discover—because I presume there are going to be
publicly accessible registers of these identified "things"
and you, as a landowner, say, "I don't think that is a flood
risk at all," there is not a mechanism for appeal against
that, is there, in the bill?
Lord Smith of Finsbury: Not that
I am aware of. There is scope, I understand, to introduce an appeal
mechanism.
Q103 Chairman: So there is scope
to do it, but it is not there?
Lord Smith of Finsbury: It is
not spelt out in the bill.
Q104 Chairman: Do you think the bill
should be more explicit in the way you have just said? Do you
think there should be an appeal mechanism or not?
Lord Smith of Finsbury: It is
always helpful if legislation clarifies what can be done, so yes.
Q105 Chairman: That is a good answer.
Who is actually going to, in practical terms, do this identification
and who is going to pay for it?
Lord Smith of Finsbury: The identification
of "things" as spelt out in the bill?
Q106 Chairman: Yes, absolutely.
Lord Smith of Finsbury: Partly,
I suspect it will be us, partly it will be local authorities,
and partly it may be landowners.
Q107 Chairman: All right, you have
got three "partly"s but we have got no sort of formula
and we do not quite know where the money is coming from, going
back to Mr Drew's point about following the money. I think there
might be a concern, and I would not necessarily expect you to
comment in detail, that we are creating a perfect sort of understanding
or identification process, we are potentially identifying three
or groups of people, yourselves, local authorities, landowners,
others who may have to do it, but we are not identifying who is
going to fund it?
Mr Runcie: I think to put perhaps
the "things" into perspective will perhaps help. We
already identify the existence of where the assets are. The provision
within the bill is to get clarity on who owns the asset so that
the follow through can take place. It is the bit on third party
assets which is missing for the registration of assets as they
exist currently.
Q108 Chairman: Can I just develop
that point because one of the things which Anne McIntosh raised
earlier in her questioning, when she commented about the public
perception, for example, was that some of the problems of the
2007 floods were caused by a lack of maintenance. The second issue
was, who is responsible for looking after that particular thing?
It might have been a ditch, a river or a structure, whatever.
Does the identification process within the way it is defined in
the bill at the moment go to the next stage of saying, "Okay,
we've identified the flood risk assets. Now we are also going
to say what have people got to do in respect of the risks related
to the thing and who is actually responsible for taking that action"?
Is it going to be a comprehensive exercise or is it going to be
a two part one where you identify the "things" and then
work out afterwards the who does what bit?
Mr Runcie: I think it will be
the latter, it will be in two parts, as we already identify assets
within the systems. Now we need the provision to be able to make
sure that in relation to the risks associated with those assets
we have a mechanism to have an appropriate solution. This is the
bit which is missing at the moment and includes sorting the ownership
so that that follow through can take place.
Q109 Chairman: Just give me a flavour
of the sort of almost hierarchy. Are we talking about designating
a whole river, a sewerage system, or are we going down to a much
more micro level, because you do have some problems of multiple
ownership of watercourses? It is quite interesting because today
I was dealing with a constituency issue where you have got a pipe
work system which used to be a watercourse and for part of its
length it becomes a culvert and when it stops being a watercourse
and a pipe and becomes a culvert it becomes a riparian ownership
for about 300 yards and then it becomes a water pipe again and
the complexity of who owns what and therefore the responsibilities
that fall out of that are unbelievably complicated and citizens
get involved where water appears where it should not do, saying,
"Who's going to put this right?" This particular case
has been going on for over a year and it is very, very complicated.
Dr Leinster: It is very complicated.
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.
Q110 Chairman: The bill deals with
that and it gives you powers, does it not, to do certain works
if people do not want to do it?
Dr Leinster: It does, so there
can be intervention, but there will always, even in those situations,
be a resource constraint which means that we might not be able
to do all of the work that some people would want to see us do.
Q111 Chairman: Coming back again
to Anne McIntosh's central and crucial point, which was the implementation
of Pitt, because of resources inevitably we may still,
even in spite of the improvements in the bill, only be part of
the way down the road?
Dr Leinster: Yes.
Q112 Paddy Tipping: The bill says
some interesting things about SUDS and we need to be clear about
the legislation. There are two clauses which talk about SUDS,
clause 219, which defines SUDS, and then there seems to be a catch-all
clause, clause 80, which says that a local authority itself can
designate anything as a SUD even if it does not meet the provisions
of clause 219. Have I got this right?
Mr Runcie: The whole position
on sustainable urban drainage is one which is new in its development.
If we look at the position we were at on river systems, for example,
it is probably some five to ten years behind that in terms of
the knowledge base and there is no real quantitative information
which goes behind those that exist now. In terms of making sure
that there is ownership for the maintenance of those systems,
this is where it is crucial and that is where the clarity needs
to come through with the bill.
Q113 Paddy Tipping: Is it right that
local authorities should take responsibility for the SUDS?
Mr Runcie: It will not necessarily
be local authorities in their entirety and we have to look at,
for example, the situation which is being addressed currently
with the Highways Agency on similar systems.
Q114 Paddy Tipping: I thought that
local authorities were going to take responsibility for SUDS.
You are saying that where they are connected to highway schemes
the highway authority may have to take it?
Mr Runcie: If there is drainage
from the highway directly, as there is off motorway systems now,
then that is a very clear system on how it comes together. If
we bring together sustainable urban drainage systems within the
current surface water environment, that is a much more confused
picture and it does need local ownership and the proposition is
that local ownership should be vested with local authorities,
and that is where the surface water pilots are actually testing
what that actually means at the present time.
Q115 Paddy Tipping: Just help me
with a local example. There is a development in my area where
there is a very nice SUD scheme, a very attractive SUD scheme,
but the developer has gone out of business, has gone bankrupt
and nobody is responsible presently for maintenance of the SUD.
Presumably this is a responsibility which the local authority
in future will pick up?
Mr Runcie: It is one which certainly
needs to be clear and the funding mechanism which keeps the certainty
of the maintenance so that the operation of those systems carries
forward. That is where that clarity would come through this proposition
in the bill.
Q116 Miss McIntosh: On the reservoir
provisions there is a number of issues really. One is, I think,
the new power to carry out an inspection and also not just on
the land on which the reservoir is situated but also on the neighbouring
land. Do you think there will be a definition put in on "neighbouring
land" on the face of the bill when we come to it?
Lord Smith of Finsbury: I do not
know specifically the answer to that question. However, my assumption
would be that the right of entry, albeit qualified to neighbouring
land, would only be rightly exercisable if it was essential in
order to carry out necessary inspection work. I would not want
to see a blanket right of entry to neighbouring land. It would
have to be very clearly necessary, for example a line of access
in order to get to an inspection point for a reservoir. It would
have to be an essential right of access rather than a general
right of access.
Q117 Miss McIntosh: It is rather
important because compensation is payable for damage to an interest
in or enjoyment in neighbouring land in the exercise of these
powers of entry, so which budget will the compensation come from?
Lord Smith of Finsbury: If compensation
had to be paid because there was damage to neighbouring land,
for example if work had to be carried out at a reservoir and a
bulldozer had to cross land in order to get there, then that would
form part of the cost of carrying out the work.
Dr Leinster: Which is similar
to the situation just now where if we are doing flood defence
work we have to make good any damage we have caused to land in
the construction or maintenance of those defences.
Q118 Miss McIntosh: Just on the risk
assessment, I understand that the early quantitative risk assessment
suggests that failure could result in possibly up to a thousand
deaths. Is that correct? One does not wish to be alarming. On
what basis do you think that risk assessment was done?
Mr Runcie: The risk assessment
has been done on the basis that if there were a dam break, a catastrophic
dam break, and then the high velocity flows that would come from
this, what is the risk for the population within that flood zone.
Q119 Miss McIntosh: The provisions
in the bill seem to be hopefully geared at major areas. You will
be aware that the National Farmers' Union is deeply concerned
about a very administratively high burden on farmers. Would you
consider amending the bill to allow small farmers to be excluded
where they are deemed to be of low risk? Would you look kindly
on that argument?
Lord Smith of Finsbury: We would
certainly be very happy to discuss with farmers' representatives
the possibility of that, yes.
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