Environment, Food and Rural Affairs CommitteeSupplementary written evidence submitted by the Home Builders Federation

1. During the evidence the Federation gave to the Committee’s inquiry on 12 December 2012, the Chair asked for a written note on the question of what information home builders provide to their customers about potential flood risk.

Summary

2. House builders do not normally provide specific information about flood risk to their customers in their sales and marketing. This is primarily because on matters of flood risk house builders are reliant on the assessment standards and judgements of the relevant statutory bodies. House builders comply with the requirements of the planning system with regard to any questions of flood risk and undertake due diligence on such matters in acquiring sites for development. They are not in a position to make any assessment of flood risk beyond those provided by the statutory bodies, however, not least because such risks in their totality relate to factors, including river and flood management and protection systems, outside their developments and their control. In view of this, the consumer interest is protected through the conduct of robust environmental searches through the Local Authority as part of the house purchase process—in addition to the house builder’s own due diligence procedures.

The Context for the Industry

3. It is important to recognise as the starting point for answering this question that developers do not set the flood risk assessment standards. The responsibility for doing so has been given by Government to the Environment Agency (in charge of Flood Risk Zoning) and the Local Authority (in their capacity as Lead Flood Risk Authority). Both have statutory duties and responsibilities.

4. In this regard, the National Planning Policy Framework (paragraphs 100 to 104 in particular) makes clear the Local Authority’s responsibility in drawing up its Local Plan to apply “a sequential, risk-based approach to the location of development to avoid where possible flood risk to people and property and manage any residual risk, taking account of the impacts of climate change....”. Where it is not possible for development to be located in zones with a lower probability of flooding, the Exception Test can be applied with its attendant safeguards which include a site-specific flood risk assessment, the requirement not to increase flood risk elsewhere and for development to be appropriately flood resilient and resistant.

5. The Local Authority is in turn assisted by the advice of the Environment Agency (EA) as a statutory consultee on planning applications and this advice will be taken into account by Local Authorities in determining planning applications and setting conditions on planning consents. The EA has provided clear advice on the flood risk assessments that are required for planning applications depending on which flood risk zone a proposed development is located in—available via its website http://www.environment-agency.gov.uk/research/planning/93498.aspx.

Information for Customers

6. Given the context, developers have no option but to rely on the flood risk data/hydrological data provided by the statutory bodies.

7. Having relied on the information provided, it is then a material planning consideration that developers’ surface water management proposals, derived through a site specific flood risk assessment, maintain the status quo in terms of surface water run-off/management. Such proposals can and do include any compensating/mitigation works as part of the planning process. For example, land raise to provide enhanced protection, attenuation/storage, replacement flood plain.

8. The right and proper objective is therefore that any new development scheme is appropriately integrated into the existing built environment without contributing to flood risk. For this reason, house builders must continue to rely on the Local Authority, aided by its experts to either grant, condition or refuse any planning consent.

9. Since the whole approach to flood risk is based on the expert knowledge and advice of the statutory bodies, and given the uncertainties and variables associated with rainfall and surface water run-off, it would not be appropriate for developers to second-guess (or appear to do so) this expert knowledge in any way in information provided to customers. We must also bear in mind that the actual risk of flooding over time will also ultimately be dependent on factors outside the development and the control of the developer, including the maintenance of wider flood defence and river management arrangements. The developer cannot therefore be in a position to make authoritative statements taking on board this wide range of factors.

10. For house builders, a particular legal consideration which then comes into play in this regard is the Property Misdescriptions Act 1991 whose provisions mean developers need to be very careful not to make any unsubstantiated or potentially misleading statement to prospective purchasers.

11. We consider in the round therefore that the appropriate and key requirement is that once planning consent is in place both the developer and the purchaser of a new home should be able to rely on robust environmental searches through the Local Authority to help them make an informed decision when buying a new home. In this regard, most purchasers are advised by legally trained professionals in their purchase who should be asking these types of questions in providing advice. And indeed the developer is subject to the same principle as the new home purchaser when undertaking the due diligence for any new land acquisition.

10 January 2013