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Baroness Miller of Chilthorne Domer: I formally welcome the noble Lord, Lord Rooker, to his new position. I am delighted that we shall be working together—or in opposition, as it may be. I am very grateful to the noble Baroness, Lady Byford, for giving me the opportunity to explore a couple of the issues that we discussed last week in the debate on the water framework directive, replied to by the noble Baroness, Lady Farrington of Ribbleton, who is present today. This debate is on the same theme: public awareness. The Merits of Statutory Instruments Committee's point that the public would be less aware as a result of this method was absolutely right.

Is the Minister happy that Defra as a whole is being fairly consistent with the requirements to advertise, whether on its website or in newspapers? For example, I draw his attention to those requirements as they went through the Countryside and Rights of Way Act 2000, when we had many debates about whether advertising should happen on websites or in newspapers. I wondered whether Defra had a consistent policy on that.

Secondly, there is obviously a lot more concern about licences to extract, given the drought situation. I have noticed in a number of papers in my region of the south-west that in the past few months there has been an exponential growth in advertisements from private developers offering to drill bore holes for people. Obviously, many of those bore holes will fall into the de minimus category of not needing a licence. However, if there is going to be enormous encouragement of that sector, it begs the question whether applicants for larger scale bore holes, who therefore need to advertise, are being particularly disadvantaged. All their neighbours could take advantage of the ability to abstract without a licence and then write in and object to their larger neighbour who now wishes to abstract also. There are some difficulties there. The impoundment issue raises far fewer questions.

Lord King of Bridgwater: My interest is in precisely the point that the noble Baroness raised at the end. I understand that this facilitates the making of smaller abstractions at precisely the wrong time. There is some evidence—which has been advertised on television and radio—that the way to respond to the hosepipe ban and other preventions of abstraction is to put in your own bore hole, which can be done below the de minimus level. I appreciate that this matter does not entirely fall within the orders before this Grand Committee, but the Minister might like to comment on the point. There is an illusion that the water on your
 
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property is somehow peculiar to you and does not affect anyone else, but we know of plenty of illustrations where bore holes have dried up springs 10 miles away. The impact on possible river flow and damage to the environment could be substantial.

The Duke of Montrose: Has Defra taken notice of and learnt the lessons of what happened in Scotland when SEPA first began talking about licensing? The first suggestion was that any application for a new abstraction licence would cost £2,944 and there would be a minimum subsistence charge of £446 per annum—enough to put off anybody wanting to grow fruit or vegetables from starting up a business. That works against the idea that we should grow our produce as close as possible to the market and not have to import it from the other end of the world. It is important that, when the costs and charges are considered, a balance is struck about what is an economic amount.

The Minister of State, Department for Environment, Food and Rural Affairs (Lord Rooker): I am most grateful for the contributions, particularly my warm welcome to my new responsibilities. I will do my best. I take the point made by the noble Lord, Lord King, about drought. It is not necessarily part of this order, but if I can answer any specifics today I will do so. If I cannot, I will do so as quickly as possible by other means because they are wholly reasonable points to make.

In response to the noble Baroness, Lady Byford, the regulations do not stand alone. They are part of an integrated system, about which I am sure she knows more than I do, for water resources management, under the Water Resources Act 1991. The regulations we are dealing with have been designed to mesh with the revised licensing regime, as it was amended by the Water Act 2003. The regulations, together with the changes made in the Water Act 2003, repeal four sets of regulations, meaning it is "one in and four out". That has got to help. Those repealed regulations and the system before we overhauled it generally date from the 1960s, so they have been around a while and largely prevent the use of modern and more cost-effective IT-based solutions by the agency. So overall, under the new regime, costs to both applicants and the agency should decrease. In the fullness of time, I hope that I will be able to supply figures to back up that bold claim.

3.45 pm

I turn now to the detail, particularly the two main issues raised by the Merits of Statutory Instruments Committee regarding the regulations as they apply to advertising of applications for abstraction: first, giving the Environment Agency discretion whether to advertise applications, and, secondly, the use of the internet and reduced local advertising combined to reduce the potential for applications objecting to new abstraction licences being granted.

I hope that I can wholly reassure Members of the Committee. The primary legislation retains a presumption to advertise, subject to the limited
 
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exemptions or discretion as prescribed in the regulations. The requirement to publish a notice, once, in a local newspaper has been retained in recognition that not everyone has access to the internet. Access to the internet, however, has greatly increased and advertising in successive weeks in a local newspaper would add significantly to the costs. Retention of local newspaper advertising will be in conjunction with a notice on the Environment Agency's website, not Defra's website. I notice the slightly negative touch about Defra's website, but that does not apply because it is the Environment Agency's website. It provides a satisfactory means of drawing proposals to the attention of those most likely to be affected. I understand that the notice will be on the website for 30 days. If I am wrong about that, I will be corrected. For people who are interested, and the network of people involved, that is much better perhaps than it being buried away in a public notice in newspapers. I am not saying that that is not important, as it is; nevertheless, modern technology has given far more access to information about what is going on to more people. The notice will be on the website for a considerable period.

In addition, the new simplified regime reduces the potential for errors in the advertising process that arose because of the difficulty in co-ordinating publication in a variety of newspapers. Under the old regime, advertising was in the London Gazette and on two occasions in local newspapers. As I have mentioned, the agency will have discretion to advertise, and its internal guidance, which is available to anyone on request, makes a presumption that applications will be advertised unless it is safe to exercise discretion. The exceptions where advertising can be dispensed with will be limited to cases where the proposed activity will have no appreciable effect on the environment, any licensed abstraction or any abstraction to which the restriction on abstraction does not apply—in other words, an abstraction that does not require a licence.

Under the new regulations there are three areas where advertising will not be required: where national security might be compromised, renewal of a time-limited abstraction licence on the same terms, and applications that seek only to add a time limit to an existing permanent licence. Exempting advertising on national security grounds means we can now end Crown exemption from abstraction licensing, without risking national security, which was not possible under the old regime. Renewal on the same terms increases certainty for the applicant. Exposing the renewal of time-limited licences on the same terms to public scrutiny or, in many cases, further public scrutiny, would present additional uncertainty for the licence holder and the prospect of permanent trial by jury—double jeopardy. Any problems that might affect the possible renewal of a licence should be well known to the Environment Agency at that juncture and advertising would add little. Adding a time limit to an existing permanent licence will assist the conversion of permanent licences and will enable the review of such licences and ultimately support the sustainable use of
 
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water resources. A requirement to advertise in these circumstances would simply discourage the voluntary conversion of permanent licences.

It is also to be noted that the Environment Agency has operated a form of advertising discretion for certain categories of licence application since it was first introduced under the Water Act 1989. To date, no major problems have arisen. Degrees of exemption or discretion already operate in similar regulatory regimes. Indeed, the discretion in these regulations is largely derived from Regulation 4 of the Control of Pollution (Applications, Appeals and Registers) Regulations (SI 1996/2971), also operated by the Environment Agency.

I have some notes which I hope will satisfy noble Lords on some of the issues they have raised. On the noble Baroness's question about the wording of Regulation 6(7) as opposed to Regulation 9(3), Regulation 6(7) refers to the notice of application to be published by the agency but Regulation 9(3) refers to a different notice: that to be given by the agency to the national park to inform it that an application for abstraction or empowerment has been made. The agency must still notify the national park even if no advertising notice is required, so the difference in words reflects a difference in situation.

The noble Baroness asked how we would ensure that agriculture gets its water under drought orders. Obviously there must be an aim to balance the needs of the environment, public supply and other abstractions, including agriculture. I am absolutely certain that the Environment Agency and Defra fully appreciate the careful but massive use of, and need for, water by the agriculture industry, particularly in horticulture, as the noble Baroness, Lady Byford, points out. I am not saying that there will be no problems, but we have an acute shortage of water—everyone can see the photographs of the reservoirs in the papers. The problem with the bore holes is that we cannot get photographs of what is down there. I accept what the noble Lord, Lord King, said: it is highly possible for a bore hole to affect a spring several miles away. It is not true that personal bore holes, if I can put it that way, take the water only from under the ground of the person who has made one. That is not the way of the world.

There is, of course, no charge for using the agency website. The figure I have for one advert in a local newspaper is about £150 to £300, which strikes me as an enormous sum. Then again, I have not placed a personal or block advert—advertising surgeries, for example—in a newspaper for some years. I have an estimate for the advertising administrative charge of about £100, so the total cost ranges from £250 to £400 depending on the cost of local newspapers. That is a net saving under the new regime, estimated to range from a minimum of £167 to about £317 per application. There is thought to be an overall saving here; time will obviously tell.

On the point of the noble Baroness, Lady Miller, the large-scale proposals are unlikely to pass the test for advertising dispensation. Each case, however, must be judged on its merits.
 
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I have an advance correction of my own speech. The notice will remain on the website for 28 days, rather than 30 days. I regret that error, which was done from memory, yesterday.

The noble Baroness also asked me about safeguards existing if applications are not advertised. The agency is liable, under Section 60 of the 1991 Act, to pay compensation if it grants a new licence causing derogation of a protective right to abstract water without the consent of the holder. That is still the case: the agency remains liable.

The question asked in some detail by the noble Lord, Lord King, has escaped my crack team here. I therefore make the time-honoured promise to write to noble Lords on this important point. It is highly topical. People out there are concerned, with the first drought orders being issued.

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