3 Maintenance responsibilities
Riparian
owners
10. Under common law, the person who
owns the land or property next to a river or other watercourse
(known as a riparian owner) is responsible for maintaining the
beds and banks of the watercourse and clearing any obstructions
from the channel and the banks, but some of the more significant
flood prevention actions require Environment Agency consent. A
riparian owner must accept flood flows through their land, even
if these are caused by inadequate capacity downstream, but has
no duty in common law to improve the drainage capacity of a watercourse.[12]
11. The Environment Agency has permissive
powers (but not a duty) to carry out flood and coastal risk management
work and to regulate the actions of other flood risk management
authorities on main rivers and the coast. Local councils have
powers to carry out work on other watercourses and coastal erosion
protection assets, except for watercourses within Internal Drainage
Board (IDB) Districts and public sewers (which are the responsibility
of IDBs and water companies respectively).[13]
12. We heard evidence that there is
confusion over the division of responsibility for maintenance
activities, particularly in relation to the maintenance of watercourses.
Regardless of the legal division of responsibilities, many people
perceive maintenance to be solely the responsibility of the Environment
Agency. The Flood Hazard Research Centre at Middlesex University
(FHRC) is concerned that:
responsibilities are unclear, confused
and fragmented…in the case of maintenance of watercourses,
it is increasingly assumed that the Environment Agency will undertake
those maintenance activities including those for which there is
a legal duty on riparian owners to perform.[14]
13. The prevailing confusion over roles
and responsibilities was also highlighted by the Chartered Institution
of Water and Environmental Management (CIWEM), which told us that:
Catchment co-ordination and education
as to which organisations have permissive powers and who has ultimate
responsibility as a riparian owner are critical.[15]
14. Defra must work with the Environment
Agency to improve public awareness and understanding of the division
of maintenance powers and duties, particularly in relation to
watercourse maintenance, and to ensure that riparian owners discharge
their watercourse maintenance duties.
15. Whilst riparian owners can undertake
minor works on main rivers such as cutting back trees and other
vegetation and removing in-stream debris and rubbish without permission
from the Environment Agency, more significant work such as removing
silt or gravel from water channels, spreading silt material on
nearby land and carrying out maintenance works to flood defences
is likely to need prior consent from the Environment Agency. Riparian
owners may perceive the consent application process and administration
fee as a barrier to maintenance works.
16. In response to this issue, and to
develop more flexible working arrangements, the Environment Agency
has set up seven river maintenance pilots across England to determine
whether it is feasible to deregulate and make it easier for riparian
owners to de-silt main rivers if they choose to do so. The pilots
began on 21 October 2013 and have recently been extended until
mid-March 2015 due to the impact of the winter floods. Any maintenance
work carried out under the pilots must still comply with existing
environmental and wildlife legislation, an environmental good
practice guide and a regulatory position statement, but will not
require separate consent from the Environment Agency. Under the
pilots landowners can also spread low-risk, non-contaminated silt
material on their land.[16]
17. We heard widespread support for
the deregulation of watercourse maintenance activities. The Association
of Drainage Authorities (ADA) is recognised as the national representative
for IDBs in England and Wales and takes the view that:
The role of landowners should be
enhanced. The river maintenance scheme allowing farmers and landowners
in areas in England at risk of flooding to carry out work to de-silt
watercourses, presently being piloted by Defra, should be rolled
out nationally.[17]
18. If an independent evaluation
supports deregulation following completion of the river maintenance
pilots, we urge Defra and the Environment Agency to relax the
regulatory position and implement the piloted system across the
country as soon as is reasonably practicable.
Internal Drainage Boards
19. In our previous Report on Managing
Flood Risk, we recommended that IDBs which wish to undertake
maintenance of watercourses in their districts should be supported
in doing so, including by allowing IDBs to retain for these purposes
the funding they currently provide to the Environment Agency.[18]
During this inquiry, we heard again from the ADA that:
It would be more effective if IDBs
were given responsibility for the maintenance of main rivers in
IDB areas, with the Environment Agency retaining responsibility
for water management infrastructure (e.g. pumping stations and
sluices) on those rivers.[19]
20. We are pleased to hear that, since
the publication of our Report on Managing Flood Risk, the
Environment Agency has entered into 14 public sector co-operation
agreements with IDBs (with a further 26 in development with IDBs
and local councils)[20]
to facilitate IDBs undertaking maintenance activities on main
rivers for a five-year period. The ADA has said that these are
"a major step forward in securing efficient work practices
at a local level, avoiding the need to tender for work".[21]
However, they also noted that they "are very limited at the
moment".[22]
21. We support the introduction of
public sector co-operation agreements between the Environment
Agency and Internal Drainage Boards to enable Internal Drainage
Boards to undertake maintenance of watercourses in their districts
with the requisite funding to support their activities.
22. All properties within a drainage
district are subject to a drainage rate, which is paid annually
to the IDB.[23] However,
the water in a drainage district often comes from areas at a higher
level which are consequently outside the drainage district and
not subject to drainage rates.[24]
For example, on the Somerset Levels and Moors, the ADA explained
that the "water is coming from all over the place—Taunton,
Yeovil, Glastonbury"[25]
yet it is only the people who are flooded within the drainage
district who are paying a levy to get rid of that water.
23. A mechanism exists under section
57 of the Land Drainage Act 1991, allowing IDBs to make an application
to the Environment Agency for a contribution towards the expenses
of dealing with water in cases where a drainage district receives
that water from land at a higher level. Applications are made
by IDBs annually and payment is at the discretion of the Environment
Agency. However, it is unclear how effective this mechanism is
in practical terms or what budget the Environment Agency has for
these purposes.
24. In its response to this report,
we invite Defra and the Environment Agency to make clear how often
section 57 of the Land Drainage Act 1991 is utilised and to inform
us of the aggregate amount of payments made by the Environment
Agency to Internal Drainage Boards in 2013/14 under this legislative
mechanism.
12 Environment Agency, Living on the edge: a guide to your rights and responsibility of riverside ownership,
4th edition 2013, p6 Back
13
IDBs are independent statutory bodies responsible for land drainage
within more than 1.2 million hectares lowland England (around
9.7% of England's total land area) which comprise areas of special
drainage need. Back
14
Flood Hazard Research Centre, Middlesex University (XFL 0014)
Executive Summary Back
15
Chartered Institution of Water and Environmental Management (XFL 0013)
para 33 Back
16
A waste exemption may still be required from the Environment Agency
for these purposes. Back
17
Association of Drainage Authorities (XFL 0019) para 24 Back
18
Environment, Food and Rural Affairs Committee, Third Report of
Session 2013-14, Managing Flood Risk, Vol 1, HC 330, para
38 Back
19
Association of Drainage Authorities (XFL 0019) para 23 Back
20
Environment Agency (XFL 0025) para 3.4 Back
21
New Public Sector Cooperation Agreement paves way for closer partnership working on maintenance,
Association of Drainage Authorities press release, 8 November
2013 Back
22
Q118 Back
23
Pursuant to the Land Drainage Act 1991 Back
24
Q90 Back
25
Q91 Back
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