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Clause 40: Compulsory works orders
374. This clause provides that the amendments made to section 167 of the Water Industry Act 1991 by the Planning Act 2008 cease to have effect, so that the Welsh Ministers retain their powers to make compulsory works orders. Subsection (2) provides that the Secretary of State will no longer be able to make compulsory works orders in relation to England. Subsection (3) confirms that this amendment does not affect Welsh Ministers’ functions under section 167, which are retained.
Clause 41: Agreements on new drainage systems
375. Subsection (1) inserts a new section into the Water Industry Act 1991. It qualifies the right, under section 106 of that Act, for owners of premises and sewers to communicate with the public sewer. It provides that after this new section comes into force, that right to communicate with the public sewer via a lateral drain or private sewer may only be exercised where two conditions are satisfied.
376. The first condition is that that the person constructing the sewer or drain has entered into an adoption agreement between the owner of the drain or sewer and the sewerage undertaker for the area under section 104 of the 1991 Act. The second condition is that the agreement must include provision about the standards to which the sewer or drain must be constructed, and about the adoption of the drain or sewer by the undertaker.
377. In order to satisfy the condition about construction standards, the provision in the agreement about construction standards must incorporate or be in accordance with standards which the relevant Minister publishes, or depart from them only with the express agreement of both parties.
378. In order to satisfy the condition about adoption, the provision in the agreement about adoption must require adoption to occur automatically when certain events occur, and must comply with regulations made by the relevant Minister. These regulations will be subject to the negative resolution procedure.
379. Where an agreement which satisfies all of these conditions is in place, the sewerage undertaker may not refuse connection on the basis that the sewer or drain’s mode of construction does not meet the standards that it requires (as is currently allowed by section 106(4) of the 1991 Act) or on grounds that the terms of the agreement have not been complied with.
380. This new limitation on the right to communicate with the public sewer does not apply to drainage systems which require approval under Schedule 3 of this Bill (which is about sustainable drainage systems).
381. The relevant Minister may also make regulations making further exemptions from this new limitation. They will be subject to the negative resolution procedure.
382. Subsection (2) replaces section 105(2) of the 1991 Act, and allows a person who has entered into an agreement under section 104, or wishes to do so, to appeal to Ofwat about anything concerning the agreement.
383. Subsection (3) inserts a new subsection into section 104 of the 1991 Act which provides that undertakers must have regard to any guidance issued by the Secretary of State or Welsh Ministers concerning adoption agreements under section 104.
384. Subsection (4) makes a consequential amendment to section 112 of the 1991 Act. Section 112 allows the sewerage undertaker to require a drain or sewer to be built in a certain way in certain circumstances. This amendment provides that where that section applies, the undertaker cannot require the drain or sewer to be built in a way which is inconsistent with or more onerous than the standards published by the relevant Minister.
385. For the purpose of this section, the relevant Minister is the Welsh Ministers in relation to sewerage undertakers whose areas are wholly or mainly in Wales, and the Secretary of State in relation to sewerage undertakers whose areas are wholly or mainly in England.
Clause 42: Drainage: concessionary charges for community groups
386. Subsection (1) allows water and sewerage undertakers to operate concessionary schemes for community groups for surface water drainage charges.
387. Subsection (2) allows undertakers to decide whether to bring forward a concessionary scheme, to decide which community groups benefit, to decide what counts as a community group (for example, community amateur sports clubs, places of public religious worship, scout and guide associations and village and community halls) and to decide what reduction in charges to grant (charges must not be reduced to zero). It also allows companies to grant different concessions for different community groups.
388. Subsection (5) enables Ministers to issue guidance to undertakers in respect of concessionary schemes. Undertakers are required to have regard to this guidance. Subsection (6) defines the Minister as the Welsh Ministers where an undertaker’s area is wholly or mainly in Wales and the Secretary of State in other cases.
Clause 43: Abolition of Fisheries Committee (Scotland)
389. Subsection (1) of this clause abolishes the Fisheries Committee as regards Scotland, originally appointed under section 5(2) of the Electricity (Scotland) Act 1979 and now governed by paragraph 5 of Schedule 9 to the Electricity Act 1989 (“the Committee”). There is no equivalent for England or Wales. Abolition is in response to the current functions of the Scottish Environment Protection Agency (SEPA) under the Water Environment (Controlled Activities) (Scotland) Regulations 2005 and the obligation on SEPA to consider the impact on the water environment, including the effect on fisheries and fish stocks, of proposals for, and the ongoing operation of, hydro-electric generation in Scotland, which activity is subject to an authorisation under those Regulations. SEPA’s function in relation to hydro-electric generation is also a responsibility of the Committee, which has led to duplication in regulation.
390. Subsections (2) - (5) make consequential amendments to remove references to the Committee from the Race Relations Act 1976, the Electricity Act 1989, the Public Appointments and Public Bodies etc. (Scotland) Act 2003 and the Freedom of Information (Scotland) Act 2002.
Part 3: General
Clause 44: Pre-consolidation amendments
391. One of the recommendations of the Pitt review was to consolidate the legislation applying to flood and water management. This clause is intended to allow for this consolidation. It enables the Secretary of State to amend the Bill once it becomes an Act, along with the Water Industry Act 1991, the Water Resources Act 1991, the Land Drainage Act 1991, the Reservoirs Act 1975, the Highways Act 1981, the Environment Act 1995 and the Coast Protection Act 1949. These amendments must be for the purposes of standardising provisions, simplifying procedures or correcting errors. Amendments are to be made by order, subject to the affirmative resolution procedure. No order may be made without the consent of the Welsh Ministers.
Clause 45: Subordinate legislation
392. This clause defines what is meant by “subordinate legislation” and sets out the sort of provision which can be contained within a statutory instrument made under the Bill as well as applicable procedures.
Clause 46: Technical provision
393. This clause provides that the resulting Act will bind the Crown, but will contain exemptions for the Queen and Prince of Wales. These exemptions mirror the exemptions in section 221(2) to (8) of the Water Industry Act 1991.
394. Subsection (2) provides for money to be provided by Parliament to pay for expenditure under the Bill or increases in expenditure incurred by virtue of the Bill.
395. Subsection (3) provides for the provisions of the Bill to be brought into force by order of the Secretary of State or the Welsh Ministers, in line with the division of responsibility outlined in this Act. This will allow different parts of the Bill to be brought in at different times, if necessary to allow for transitional matters.
396. Subsection (4) allows for such an order to provide for experimental staged commencement by reference to specified areas or other criteria.
397. Subsection (5) provides that the Bill extends to England and Wales, but not to the rest of the UK, subject to paragraphs (a) and (b).
398. Subsection (6) confirms that an amendment made by this Bill of another Act does not prevent the continued operation of any transfer of functions under the Government of Wales Act 1998 or 2006. This subsection applies irrespective of whether the amendment amends an existing devolved function or confers a new function. New functions which replace or are similar to existing devolved functions are to be treated as having been transferred in the same way as the old function. Provisions made by the Government of Wales Act 1998 or 2006 in respect of functions amended or replaced by this Act continue to apply to the amended or replaced provision.
399. Subsection (7) gives the short title of the Act (as it will become on Royal Assent) as the Flood and Water Management Act 2010.
FINANCIAL EFFECTS AND EFFECTS ON PUBLIC SECTOR MANPOWER
400. Public sector costs for the Bill are estimated at £57 million annually and £18 million for one-off costs from the point of implementation which is expected to start in 2010-11. Costs and new burdens up to and including 2010-11 have already been agreed, as part of the announcement of the Government’s response to Sir Michael Pitt’s review of the summer 2007 floods in December 2008. For example, £16 million being spent by Defra in the current period to build capacity and encourage early action amongst the highest priority local authorities.
401. From 2011-12 the transfer of private sewers to water and sewerage companies, and the savings that local authorities will realise from the changes to local flood risk management will fully offset the additional public expenditure required until around 2018. By that date, the costs involved - steadily growing as a result of the adoption of sustainable drainage systems (see Schedule 3) and maintenance by local authorities for new developments - are likely to begin to exceed the savings anticipated, and alternative means of funding the maintenance of sustainable drainage systems will have to be introduced by this date. Defra will work with Communities and Local Government (“CLG”) and HM Treasury to consider and take forward options.
402. A new burdens assessment for the Bill, summarised above, has been agreed between Defra and CLG colleagues. We are confident that no unfunded net burden will be placed on council tax as a result of provisions within the Bill prior to 2018, and the options referred to will be considered in order to postpone or remove the possibility that unfunded burdens begin to arise. The Government will monitor local authorities’ actual costs and savings in taking forward proposals and take any steps necessary to make sure it remains fully funded.
403. We expect local authorities to recruit between 75 and 225 additional staff to perform the lead flood authority role and a further 75 to 225, to process SUDS Approval and oversee maintenance of SUDS. These are estimates, we have not been able to gain hard evidence for these figures from local authorities or other sources.
404. Equally, when Environment Agency (EA) responsibilities pass to local authorities around 10 EA employees can be expected to have less work. However, the arrangements for ensuring that the EA has a strategic overview of flood and coastal erosion management will mean that there will be a re-balance within the organisation, and it is likely that there will be a slight net gain in the employee resource required.
SUMMARY OF THE IMPACT ASSESSMENT
405. The final Summary Impact Assessment accompanying this Bill can be found online at or in hard copy in the Vote Office (House of Commons) or Printed Paper Office (House of Lords).
406. In addition to general benefits, three impact assessments for Bill policies demonstrate a positive net benefit, the remainder have zero costs and unquantifiable benefits. In these cases, there are significant additional non-monetised benefits, such as increased efficiency, accountability and awareness of flood risk, which should also be taken into account. The overall effect is a major net benefit of £4 billion.
407. The Better Regulation Executive within the Department for Business, Innovation and Skills has confirmed that all regulations are appropriate and in line with Better Regulation principles.
408. CLG accepts Defra’s assessment that the benefits of the private sewers transfer to water companies, together with existing expenditure and savings to authority budgets from reduced flood damages, offsets in full the new local authority funding requirement until around 2018/19. Defra is happy to keep key assumptions under review, and commits to fund any shortfalls that may be identified, as well as pursue an agreeable long-term funding solution for the maintenance of SUDS adopted by local authorities. CLG’s other conditions are also acceptable. There are not expected to be any other spending pressures that cannot be accommodated by departmental budgets.
409. All impact assessments have been assessed by Defra economists and have been through a rigorous process of peer review. All impact assessments have been cleared by Defra’s Chief Economist.
410. The impact assessments for the Bill conclude that there would be no significant impact on race, disability, gender or small businesses, through implementation of the legislation. Equally, there would be no tangible impact on carbon levels as a result of this legislation.
411. The main positive economic impacts of the Bill are judged to be:
- delivering resource savings, and in most cases it is assumed that these are invested in flood risk management;
- delivering reduced flood risk and, therefore major savings to the economy;
- developing risk-based approaches to local flood risk management investment, and reservoir regulation which decreases the chance of a reservoir breach; and
- benefits which arise from maintaining water supply for longer in the face of increasing pressures on water resources.
COMPATIBILITY WITH THE EUROPEAN CONVENTION OF HUMAN RIGHTS
412. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The statement has to be made before second reading. The Secretary of State for Environment, Food and Rural Affairs, Hilary Benn MP, has made the following statement:
“In my view the provisions of the Flood and Water Management Bill are compatible with the Convention rights.”
413. In this section of the explanatory notes, “Article” refers to an Article of the European Convention on Human Rights 1950.
414. The Bill contains a number of provisions which engage Convention rights, in particular Article 6 (right to a fair trial), Article 8 (right to respect for family and private life etc, here in the context of private life) and Protocol 1, Article 1 (right to property). Most of the provisions in the Bill will be carried out by public authorities in the context of section 6(1) of the Human Rights Act 1998 (“the 1998 Act”), and they are accordingly required to act in ways which are compatible with Convention rights. This section of the Explanatory Notes sets out the provisions of the Bill which are most likely to raise questions about the compatibility with the European Convention on Human Rights, and explains why these provisions do not infringe or authorise the infringement of the Convention rights.
Part 1: Flood and Coastal Erosion Risk Management
415. Clauses 1 to 29 and clause 31, which introduces Schedule 2 to the Bill, give the Environment Agency (“EA”) overall responsibility for supervising the management of flood and coastal erosion risks in England, and an enhanced overview for flood and coastal erosion risk management in Wales. It also gives unitary authorities and county councils in England and local authorities in Wales (collectively lead local flood authorities (“LLFAs”)) responsibility for managing local flood risk in their areas. These provisions place duties on, and provides powers for, the Welsh Ministers, the EA, LLFAs, district councils in England and internal drainage boards, collectively “risk management authorities”, to act in such a way so that they can manage risks.
416. In particular risk management authorities are given powers under this Part to undertake works to manage risk from flood and coastal erosion. The assessment of a risk will take into account the potential harmful consequences of the flooding or coastal erosion for human health, social and economic welfare, infrastructure and the environment and the desirability of any risk management work will be assessed in this context. The work must also be desirable having regard to the national flood and coastal erosion risk management strategy. The powers may therefore only be exercised where there is a public interest in doing so.
417. The exercise of the power however could require risk management authorities to enter onto another person’s land in order to access works or to construct works. The Government considers that this might engage Protocol 1, Article 1, in relation to property rights of individuals. However, these provisions add (by way of amendment) to existing powers in the Water Resources Act 1991, the Land Drainage Act 1991 and the Coast Protection Act 1949 and in each case we have applied existing powers of entry, notice requirements, compulsory purchase provisions and compensation provisions, including the associated appeals provisions in each instance.
418. The Government is therefore of the view that a fair balance between public and private interests is achieved and that the works powers are compatible with that right. Furthermore, a person is able to review decisions to use the new powers by way of judicial review in fulfilment of the right under Article 6, and therefore the Government believes that Part 1 of the Bill does not infringe, or authorise any infringement of, Article 1 of Protocol 1.
419. This Part also provides for the EA, Welsh Ministers and an LLFA to have a power to require information from a person where the body considers that the information sought is reasonably required in connection with the body’s flood or coastal erosion risk management functions. Information is most likely to be sought from other public bodies or persons exercising statutory functions but may also include a private individual. It is likely that the information sought in any instance will be information about the location, function and condition of property (such as a wall) or information about watercourses or structures such as culverts, bridges, sluices, groynes or earth banks, which are owned by an individual. This sort of information is unlikely of itself to be of a personal or private nature although it will be linked to the name and address of the owner.
420. While we note that a person’s name and address, without more, may be regarded as part of the data subject’s private life for the purposes of Article 8, we also note that it is necessary to examine not just the information disclosed but also the anticipated use to which it is put in considering if there is any infringement of this Article.
421. In this case the information which can be requested is limited to that which is reasonably required by the EA, Welsh Ministers or an LLFA in connection with its flood or coastal erosion risk management functions. Those functions are set out in the Bill and in existing legislation and are for the purpose of managing risk from flood and coastal erosion which is in the interests of public safety and the economic wellbeing of the country. The information is most likely to be used in flood and coastal erosion risk management planning, using information about location and condition of assets to determine the integrity of flood defence or coast protection measures, to ascertain vulnerabilities, identify risk and plan for the best value use of resources in future risk management.
422. The EA, Welsh Ministers and LLFAs are also public authorities, and the request for information and the use to which it is put are acts of a public authority for the purposes of the 1998 Act, s. 6(1). It follows that the EA, Welsh Ministers and LLFAs may not act in a way which is incompatible with Convention rights. The power may be exercised compatibly, and it follows that the Bill provision is itself compatible.
423. This Part also requires the LLFA to keep a register of structures and features which an LLFA considers are likely to have significant effect on a flood risk in its area and a record of information about them including details of ownership. The register must be open to public inspection but this requirement does not extend to the record. This provision may raise issues under Article 8 in particular in relation to personal data since a private individual may be responsible for structures and features designated under this provision. We have therefore considered Article 8 in this context since the combined effect of this provision and that in relation to the power to require information is to require people responsible for structures or features caught by this provision to provide information about them including their own name and contact details which will then be recorded in relation to the structure or feature.
424. We consider that the requirement to provide this information is compatible as already noted but in this context we have also considered again the use to which the information will be put.
425. The purpose of the register and record is to assist risk management bodies to carry out their functions and thereby contribute to the protection of the environment and human health. These are legitimate purposes. A register and record are important in ensuring LLFAs can manage local flood risk effectively by knowing what assets in their area impact on risk and who owns them.
426. It is also of legitimate public interest for individuals to know what structures and features in their local area serve a significant purpose in the context of flood risk management and which may impact on them. It will help them understand the importance of such structures and features and contribute to local awareness of flood risk and how it is being managed.
427. For this purpose the keeping of both a register and a record but making only the register open for public inspection are necessary and sufficient to serve the purpose for which both are required and go no further than is necessary to accomplish the objective.
428. We also note that the Secretary of State and Welsh Ministers have power to prescribe by regulations the particulars which are to be included in a register. In making regulations the Secretary of State is acting as a public authority for the purposes of the 1998 Act, s. 6(1) and may not act in a way which is incompatible with Convention rights. Thus this power may be exercised compatibly, and it follows that the Bill provision is itself compatible.
Schedule 1: Risk Management Designation Of Features
429. Clause 30 introduces Schedule 1 to the Bill which allows authorities (the Environment Agency, local councils and internal drainage boards) to designate certain structures or features which affect a flood or coastal erosion risk. Once designated, a person may not alter, remove or replace the feature without consent of the authority. There may be concerns that the designation of property would engage the right to property under Article 1 of Protocol 1 or the right to a fair trial under Article 6.
430. A feature or structure may only be designated if it affects flood or coastal erosion risk. Designations are therefore only allowed where there is a public interest in controlling the use of a feature or structure, which is to allow public authorities to properly plan for and manage flood risk. For example, a factory wall running alongside a river may perform a crucial function in determining the direction in which flood water would flow. There is no outright prohibition on removing or altering property - it may be removed or altered with the authority’s consent.
431. The designating authorities in question are all public authorities for the purpose of section 6 of the Human Rights Act. They will therefore be obliged to ensure that there is a fair balance between the public interest and the rights of the individual when deciding whether to designate a feature, and when deciding whether or not to consent to work. There is therefore no infringement of the right to property.
432. Regarding Article 6, it is recognised that it is legitimate for decisions to be taken by administrative rather than judicial bodies where the exercise of specialist judgment is required. In this case, the decisions to designate a feature, or whether to give or withhold consent are decisions which will require expert judgment on the management of flood and coastal erosion risk. There are also a number of procedural safeguards in place to make sure that there is a right to a fair trial. These are:
- a designation cannot be confirmed without giving at least 28 days to make representations;
- there will be a right of appeal against designations and against refusals of consent;
- a person with standing will be able to judicially review a decision to designate a feature or to refuse consent.
433. The combination of these factors mean that there will be no infringement of the right to a fair trial under Article 6, or of the right to property under Article 1 of Protocol 1.
434. Schedule 1 to the Bill also provides powers for a person authorised by the relevant authority to enter land and reinstate a designated structure or feature where a person has altered, removed or replaced it without consent. They also allow entry for the purposes of determining whether to designate a feature, whether a feature has been interfered with, and whether an enforcement notice has been complied with. Article 8 is potentially engaged by these provisions, as the entry to land could potentially affect a person’s home
435. In this case, the legislative objective pursued (the control of flood and coastal erosion risks) is sufficiently important to justify limiting a fundamental right. There is a rational connection between that objective and the powers of entry, and the powers of entry are only available as a last resort and are therefore no more than is necessary to accomplish the objective. They therefore satisfy the need for such interferences to be proportionate.
436. In any event, before exercising the power in any particular case, the authority will need to satisfy itself that the proportionality test is satisfied in each particular case, and will be obliged to do so by virtue of being a public authority for the purposes of section 6 of the 1998 Act. There is therefore no infringement of Article 8.
437. The Government therefore, believes that Part 1 is compatible with Convention rights.
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