Draft Incidental Flooding and Coastal Erosion (England) Order 2011
The Committee consisted of the following Members:
† Benyon, Richard (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)
† Brake, Tom (Carshalton and Wallington) (LD)
† Burden, Richard (Birmingham, Northfield) (Lab)
Cryer, John (Leyton and Wanstead) (Lab)
Harris, Mr Tom (Glasgow South) (Lab)
† James, Margot (Stourbridge) (Con)
† Jones, Susan Elan (Clwyd South) (Lab)
† Kawczynski, Daniel (Shrewsbury and Atcham) (Con)
† Lloyd, Stephen (Eastbourne) (LD)
† Nokes, Caroline (Romsey and Southampton North) (Con)
† Norman, Jesse (Hereford and South Herefordshire) (Con)
† Paisley, Ian (North Antrim) (DUP)
† Shuker, Gavin (Luton South) (Lab/Co-op)
† Skidmore, Chris (Kingswood) (Con)
† Sturdy, Julian (York Outer) (Con)
† Vaz, Valerie (Walsall South) (Lab)
† Watkinson, Angela (Lord Commissioner of Her Majesty's Treasury)
Lydia Menzies, Committee Clerk
† attended the Committee
Third Delegated Legislation Committee
Thursday 3 November 2011
[Mr Charles Walker in the Chair]
Draft Incidental Flooding and Coastal Erosion (England) Order 2011
8.55 am
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Richard Benyon): I beg to move,
That the Committee has considered the draft Incidental Flooding and Coastal Erosion (England) Order 2011.
It is great to serve under your chairmanship, Mr Walker. I hope that we can be as brief as one of your recent speeches, but I fear we might take just a second or two longer.
Sections 38 and 39 of the Flood and Water Management Act 2010 allow the Environment Agency, local authorities and internal drainage boards to carry out works to manage flooding, coastal erosion or water levels for the benefit of nature conservation, including the conservation of the landscape; the preservation of cultural heritage; or people’s enjoyment of the environment or cultural heritage. These powers were required because the definition of flood and coastal erosion risk management in part 1 of the Act empowers authorities to undertake measures only to reduce the harmful effects of flooding or erosion, but some work required for environmental and recreational purposes involves the management of flooding, water levels and erosion to gain their beneficial effects.
Sections 38(8) and 39(12) of the 2010 Act, which commenced on 18 January this year, require the Minister to make an order applying the compensation provisions and powers of entry and compulsory purchase in the Water Resources Act 1991 to sections 38 and 39 of the Flood and Water Management Act, with or without modifications.
The purpose of the order is twofold: first, to protect the rights of occupiers and property owners who could be affected; and, secondly, to ensure that authorities have the necessary ancillary provisions. The order works by applying the relevant provisions of the Water Resources Act, with appropriate textual modifications, to sections 38 and 39 of the Flood and Water Management Act. However, it is important to understand that the provisions of the Water Resources Act are not amended by the order.
I will now outline how each of the provisions will work and why they are necessary. The order applies the compensation provisions in the Water Resources Act so that if any loss is suffered as a result of the use of powers under sections 38 or 39, the relevant authority would be liable to compensate fully the injured party. That is necessary to protect the interests of landowners and occupiers.
Before any work is undertaken, all necessary permissions and consents, such as planning permission, would need to be secured. Compensation would then be paid for
any loss caused in the course of carrying out the work. Sums would be calculated on a case-by-case basis. If the person affected was not satisfied with the compensation offered, they could appeal to the upper tribunal.Powers of entry are necessary to provide safeguards for landowners and occupiers, as well as the authority, when an operator needs to undertake work on a third party’s land. The local authority or Environment Agency would write to the landowner or occupier notifying him of its intention to enter the land. The notification would explain the nature and timing of the works, and the entitlement to compensation in the event that any loss is suffered.
Valerie Vaz (Walsall South) (Lab): It is a pleasure to serve under you as Chair, Mr Walker. Will the Minister clarify the figures for compensation, because the impact assessment gives two—£50 and £25? Where did they come from?
Richard Benyon: If the hon. Lady will allow me, I will come back to that when I sum up.
The order requires a minimum notice period of seven days before entering agricultural land. That is a modification of the way provisions in the Water Resources Act apply to the sections 38 and 39 of the Flood and Water Management Act. It makes the minimum notice period for agricultural land the same as that required for residential premises.
Compulsory purchase powers are needed so that an authority can, when necessary, obtain proprietary interests in land to protect its investment and ensure that works can be maintained. Powers of compulsory purchase can be exercised only with the express authority of the Minister. In all cases, the authority or the Environment Agency would try to purchase by agreement before seeking ministerial authority to exercise its powers.
The Environment Agency’s powers of compulsory purchase are limited in the order to purchases necessary for the purpose of enabling the United Kingdom to comply with its obligations under specified European directives: the water framework directive, the habitats directive and the wild birds directive.
Jesse Norman (Hereford and South Herefordshire) (Con): I would make just make two observations from the perspective of someone who represents a constituency that contains the glorious River Wye and that will benefit from the provisions. I trust that the Government share the widespread view that compulsory purchase needs to be maintained at the lowest level consistent with achieving the required policy outcome. Similarly, compulsory powers of entry—there are now more than 1,000 on the statute book—should be handled with extreme restraint wherever possible to protect well-being and local livelihoods.
Richard Benyon: I am grateful to my hon. Friend for that intervention. He represents an area in which there is a fantastic example of co-operative working between riparian owners, the various authorities we are talking about and other agencies. He will know the benefit of a co-operative approach that tries to achieve an ultimate end that everybody can agree with, but there will be occasions when these measures are required. In the provisions, we are trying to secure the right level of compensation, and if I cannot answer the question
from the hon. Member for Walsall South exactly, I will certainly write to her in great detail about the issue, because it is important to give assurances on it.Landowners and occupiers have rights under the Acquisition of Land Act 1981 to oppose compulsory purchase. That includes provision for a public local inquiry—this may satisfy my hon. Friend the Member for Hereford and South Herefordshire—which may decide whether to allow the purchase or to modify any particulars. If a landowner is not satisfied, he may challenge the decision in the High Court.
The figures in the impact assessment are not for compensation, but for assumed residual impact on landowners. The level of compensation will relate to the value of damage. I will be happy to give broader details on that in letter form if the hon. Lady wishes me to. With those remarks, I commend the draft order to the Committee.
9.2 am
Gavin Shuker (Luton South) (Lab/Co-op): It is a real pleasure to serve under your chairmanship, Mr Walker, knowing your interest in these issues. They will also interest all members of the Committee, which is why we are here so early on a Thursday.
Let me start by welcoming the sensible approach taken in the order, which started under the previous Government, whose 2010 Act modified the provisions of the 1991 Act. In that respect, I should mention my hon. Friend the Member for Ogmore (Huw Irranca-Davies), who is a member of the Opposition team on these issues.
I commend the Government on responding to the concerns of farmers and landowners on two issues. First, there is the seven-day notice period. Secondly, the Government have clarified that the Environment Agency’s powers apply only where it is important to uphold a relevant EU directive. I welcome the comments of the Country Land and Business Association and the National Farmers Union in that respect. Those bodies have been quite responsible in working with the Government to secure a good outcome.
The Opposition will not seek to divide the Committee, subject to the Minister’s assurances on a few issues. First, there is a real emphasis on giving the Government the appropriate powers to fulfil our commitments across Europe, but whatever happened to the big society? It is vital that the Government have these powers, and the order lays out quite clear top-down powers for the Minister, the Environment Agency and relevant local authorities. Tightening the wide powers in the 1991 Act, for example, is a welcome step towards making sure that they are not abused, but will the Minister reassure us that the order is balanced by initiatives to help landowners who want to create habitat in their area, or to be proactive in taking care of the environment? We need to put that balance in place to reassure people that the Government are not against them.
Secondly, I want to talk about some of the notes in the impact assessment. My hon. Friend the Member for Walsall South raised an interesting question about compensation. The Minister said that the compensation payments of £25 per hectare related to the value of damage, but the impact assessment talks about there being also a requirement and responsibility to reimburse people for the costs of disruption.
In fact, the impact assessment goes through two options: the first is as under the original statutory instrument envisaged by the previous Government, with a compensatory value of £50 per hectare. With the modifications that I have already outlined—the seven-day notice period and codifying the powers of the Environment Agency to apply only to the relevant directives—that figure is halved to £25 on the basis that less disruption, because of increased notification, reduces cost.
It would be helpful if the Minister could say a little more about how those figures were reached. The new figure is, conveniently, half the previous one, and we want to ensure that the order is going ahead on the basis of appropriate maths, rather than something on the back of an envelope.
I have one more point about the impact assessment. On page 12 there is a rather circular argument for restricting the powers of the Environment Agency:
“The reason for restricting the Environment Agency’s powers of compulsory purchase to works that are needed to meet legal requirements is to restrict the reach of a national body, in this respect, to things that really need to be done in the national interest.”
Perhaps the Minister can say some more and reassure us that civil servants are not just drawing attention to the oft-repeated mantra of the coalition Government, “in the national interest”.
Finally, with respect to local authorities, the order provides for a power to apply to the Environment Agency to carry out works. The Minister speaks about a partnership between local authorities and the Environment Agency, but they are facing significant cuts.
The hon. Member for Hereford and South Herefordshire picked up on the need to avoid compulsory purchase wherever possible. The order is quite radical in its application. The Government have a commitment to create, each year for the next five years, 100 hectares of environmental projects and wetlands to replace coastal erosion, but that might be quite difficult without using compulsory purchase powers. Perhaps the Minister will say a little more about how that will be funded and, secondly, about whether he still believes that using such powers in that way is feasible, given the constraints on spending.
Subject to satisfactory answers on those points, we hope to complete our proceedings with consensus.
9.8 am
Richard Benyon: I thank the hon. Gentleman for his broad support for the order. I hope to be able to satisfy him and other hon. Members about the concerns that were raised.
When we talk about business in the context of the order, we basically mean farmers and land managers, as the hon. Gentleman understands. There are examples from across the country of co-operative working between farmers and landowners, local authorities, internal drainage boards and the Environment Agency—I saw one yesterday in east Yorkshire. In well over 90% of cases, they get the results we need through co-operation and the general good will of communities working with their neighbouring landowners. Today we are considering extreme circumstances, and how to provide reassurance that, when we create habitat, we will provide adequate compensation.
The figures about which the hon. Member for Walsall South questioned me are a bare minimum to cover the residual impact on businesses of the stress of carrying out the work. However, I want to make it absolutely clear to the Committee that compensation should cover the full impact of the measure on the business. That is made clear in the guidance.
Compulsory purchase powers are needed so that an authority can, when necessary, obtain a proprietary interest in the land to protect its investment and ensure that the works can be maintained. That could involve outright purchase or the acquisition of lessor property rights.
Gavin Shuker: For the sake of the Committee and for clarity, will the Minister confirm on record that the instrument is actually quite radical in its application? It could, for example, enable the Environment Agency to purchase farmland compulsorily and flood it to replace habitats destroyed by coastal erosion.
Richard Benyon: Indeed, it will absolutely be possible for agencies to wet agricultural land, but I do not want to distract the Committee into thinking that the Government are seeking draconian powers during a time of food shortage to remove vast quantities of productive agricultural land from food production. However, occasionally, an authority will require the provisions in order to make necessary changes to land use, not only to secure a flood protective measure, but to comply with directives. Sometimes those two factors will be separate; sometimes they will be conjoined.
Valerie Vaz: Will the Minister outline the rough cost to the public purse if an area had to be flooded?
Richard Benyon: That would be decided locally through the district valuer and through the impact on the business. If the two sides could not agree, there would be a power of appeal to an upper tribunal. The compulsory purchase powers would not be used without the authority of the Minister and full powers of appeal. The impact assessment includes an assessment of the financial impact. If the hon. Lady requires further or more detailed information, I am happy to give it.
It is important for the Committee to understand that the compulsory purchase provisions will be used only in extremis. The order specifically limits the Environment Agency’s powers of compulsory purchase to work necessary for the purpose of enabling the United Kingdom to comply with its obligation under the European directives. The costs and the impact will be assessed on a case-by-case basis. Furthermore, powers of compulsory purchase can be exercised only with the express authority of the Minister and for purposes in connection with carrying out those functions. In all cases, the agency or local authority will try to purchase by agreement before seeking ministerial authority to exercise the powers.
Gavin Shuker: Will the Minister clarify a further point? I asked him to discuss how his Department is enabling landowners and farmers to manage their own natural habitat so that the provisions in the order need not be applied. Will he say a few more words about that?
Richard Benyon: I would be happy to detain us for many hours by talking about how the ideas that we expressed in our natural environment White Paper lead to those kinds of arrangements. We are delighted to say that there has been enormous interest from local authorities that wish to pilot our biodiversity offsetting schemes. Those schemes might help to create the overlaying virtues of securing coastal or flood risk provisions, improving the natural environment and, through farmers’ existing agri-environment schemes, ensuring that a variety of different financial incentives and mechanisms encourages everyone to pull in the same direction.
One perverse aspect of such provisions is that conflict might occur, although we always hope that everything can be done by agreement and that, through several different measures, the correct financial incentives can be achieved. However, such provisions are required so that when agreement cannot be reached between a community that needs protection and an authority that has to make an order, resolution can be achieved.
Gavin Shuker: I also asked the Minister about the commitment to creating 100 hectares a year for the next five years. Will he put on the record his Department’s approach and reassure me that he remains committed to that?
Richard Benyon: The hon. Gentleman talks about 100 hectares of habitat creation, but I think that we will hugely exceed that, if only to comply with the requirements of the habitats directive in key areas. I know that that subject is controversial in the constituencies of some hon. Members. I receive many visitors—my office carpet is being worn bare—who are concerned that the value of properties is being arbitrary changed. I have made it clear that the Department and the Environment Agency’s approach is to take things slowly.
The habitats directive relates to assessments of loss of habitat that will be made over the next 50 years. We do not want the value of a business or property to fall off a cliff today because officials or civil servants make arbitrary assessments of sea level rises many years ahead. We must comply with the directive, but we also want to do so and to create more habitat. Our ambitions to plant more trees, to have more wetland and to reverse the decline of biodiversity are paramount.
A bigger related question is reform of the common agricultural policy which, given the current state of the negotiations, is a massive road block to our achieving our aims for biodiversity and the natural environment. We hope, over the next few months—with the support of all Members, including the hon. Member for Luton South and his Front-Bench colleagues—to build on the excellent work of agri-environment schemes and other policies that have enhanced the agri-environment. The intention behind the order is that, when we hit a logjam, authorities can move forward and create the necessary provision.