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24 Mar 2010 : Column GC361

24 Mar 2010 : Column GC361

Grand Committee

Wednesday, 24 March 2010.

Flood and Water Management Bill

Bill Main Page
Copy of the Bill
Explanatory Notes

Committee (2nd Day)

3.45 pm

The Deputy Chairman of Committees (Lord Colwyn): My Lords, should there be a Division in the Chamber, the Committee will adjourn for 10 minutes.

Clause 9 : Local flood risk management strategies: England

Amendment 23

Moved by Lord Dixon-Smith

23: Clause 9, page 7, line 8, at end insert-

"( ) the breach or over-topping of a sea-wall"

Lord Dixon-Smith: My Lords, this group of amendments has a serious purpose. I hasten to assure the Minister that these are probing amendments which try to elucidate and gain clarity on a part of the Bill which I find slightly confusing. I need to start my explanation with Clause 7, which deals with the national flood and coastal erosion risk management strategy. That clearly lies with the Environment Agency. I have no difficulty at all with that statement except that, further on in the Bill, reference is made to a lead local authority, and below that we find a second layer of local authority, a district authority, which would have flood management responsibilities. My problem is not particularly with floods but with the other half of the responsibility, coastal erosion.

I am an Essex man. I should perhaps explain that, during the 1951 floods, I was in America on an exchange scholarship, but many of my friends and colleagues were caught by the tidal surge which flooded a very large area of Essex and the south shore of the Thames estuary in Kent. It caused a great many problems. I want to be absolutely sure of where responsibility for dealing with these subjects lies. I am not convinced that the Bill is clear. Although Clause 7 is quite clear, subsection (2) states:

My problem is with the word "may". Perhaps it allows differentiation between authorities which have coastal problems and inland authorities which do not. However, the word "may" also implies "may not". The question then arises, if they may not, where might they go? Or is the Environment Agency simply to retain responsibility for that aspect of the work?

One of my amendments, which applies to Clause 9(2), would add words to make it clear that coastal problems can be the responsibility of both the lead local authority and, if need be, a coastal authority. My Amendment 41 is to Clause 13, which proposes that a,

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et cetera. My difficulty is that I have found no definition of a "coast protection authority". As far as I can see, that is the first and only time that it is mentioned in the Bill.

I have tabled my amendments to make it absolutely explicit where these responsibilities would lie. They would allow the three clauses that I have mentioned to be cross-referenced. The coast protection authority's responsibilities would be made clear, as would the lead local authorities' and the district local authorities'. We would not have to worry about the Environment Agency anyway, because it is already carrying the can.

I tabled these amendments to try to clarify the little bit of uncertainty in the drafting of the Bill. I am sure that the Minister-or anyone else who wants to get involved in this argument, but if not, the Minister--will be able to put my mind at rest, or at least to make explicit what the Bill is intended to do. That would be enormously helpful because what Ministers say on these occasions can matter in subsequent discussion, if there is such discussion.

Earl Cathcart: My Lords, I have added my name to that of my noble friend Lord Dixon-Smith in these two amendments which deal with seawall breaches. Clause 9 appears to give a definitive list of the types of flood risk for which a lead local flood authority must develop a strategy. However, there is no need to mention the flooding caused by a breach in sea defences. Could that be because the Environment Agency is given the task of looking after the coastline?

In Clause 13(1) we are told that "coast protection authority" has the meaning given in Section 1 of the Coast Protection Act 1949. This states:

"The council of each maritime district shall ... be the coast protection authority for the district".

That suggests to me that the matter is one for local authorities. However, Clause 9 is silent on the point. Like my noble friend, I am puzzled by the omission of this source of flooding, given that district councils appear to be the responsible authority. Will the Minister explain exactly who should concern themselves with the kind of flooding outlined by my noble friend? Is it the Environment Agency or the maritime district councils? Given the damage that can be caused by high tides and strong winds-here I refer to the damage caused by the high tides and high winds in 1953, which was referred to by my noble friend Lord Dixon-Smith, and to the deaths in Norfolk, my home county-it would be helpful for the Government to make clear where responsibility lies.

Lord Cameron of Dillington: My Lords, I support these amendments. Without wishing to belittle the damage to property that has occurred from rain in recent years, when the seawalls were overtopped in 1953, 300 people died and £5 billion of property was damaged. Any flood risk strategy that does not include the fallout from floods caused by a breach of the seawall seems to me to be missing the biggest piece of the jigsaw.

Lord Faulkner of Worcester: My Lords, I am grateful to the noble Lord for moving his amendment, and I hope that I can reassure the noble Lords,

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Lord Dixon-Smith and Lord Cameron of Dillington, and the noble Earl, Lord Cathcart.

Amendment 23 would add risks from breaches and the overtopping of seawalls to the definition of a local flood risk in Clause 9, which would then need to be covered alongside surface run-off, ground water and ordinary water courses in the local flood authority's strategy for local flood risk management in its area. This does not make sense, as flooding from the breaches of seawalls can extend large distances inland in areas such as the Wash, the Romney Marshes and the Somerset Levels. It is therefore important that the Environment Agency, rather than the lead local flood authority, considers the strategic approach on a catchment basis.

Amendment 41 would replace "A coast protection authority" with,

"An authority with responsibility for flooding resulting from the breaching or over-topping of sea-walls",

in Clause 13(6). This provision has been drafted to give a coast protection authority the power to enter into arrangements with another person to carry out functions in relation to coastal erosion risk. This amendment, together with Amendment 23, would give a lead local flood authority power to enter into arrangements with another person to carry out functions in relation to coastal erosion. However, under the Bill, a lead local flood authority has no coastal erosion risk management functions. These are the functions of coast protection authorities under the Coast Protection Act 1949, so this amendment would have no beneficial effect. Furthermore, by removing the reference to coast protection authorities, the amendment would remove their powers to enter into arrangements, which would seriously impede their capacity to co-operate in carrying out their functions.

At present, the authorities with responsibility for the breaching or overtopping of seawalls, as the noble Earl, Lord Cathcart, rightly said, are the Environment Agency and the internal drainage boards, as well as district councils in areas in which there is no internal drainage board. Such breaching or overtopping may also be the responsibility of a coast protection authority, which is a maritime district council, where the event is linked to coastal erosion. The Bill already provides for the delegation of sea-flooding functions through Clause 13(4), although this arrangement may be only with other risk management authorities and for the delegation of coastal risk management functions by a coast protection authority through Clause 13(6). We therefore take the view that this amendment is unnecessary to ensure that a body that has the responsibility for dealing with floods caused by breaching or overtopping has the powers to arrange for another to exercise its functions. In addition, the amendment is unclear and would produce a result that was more detrimental than the present circumstances. In the circumstances, I very much hope that the noble Lord will be willing to withdraw it.

Baroness Knight of Collingtree: My Lords, I have listened with some puzzlement to what the Minister has said. I made the point very clearly previously that there is a difficulty with the Bill in that it constantly couples the whole question of flood risk with coastal

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erosion risk. I have said many times that I am concerned that those who look at flood risk will be forced by the Bill to look at coastal erosion risk as well when that has nothing to do with it, and the Minister has made my point precisely today. Will he explain why it has not been quite acceptable to recognise that these are two separate problems, when his comments indicate that the two do not go together?

Lord Faulkner of Worcester: My Lords, the coast protection authority is defined in the Coast Protection Act 1949, and it is the maritime district council. The coast protection authority is responsible for coastal erosion. Local authorities will continue to participate in coastal groups and shoreline management plans, but if we carry through the amendment and delete the reference to coast protection authorities in Amendment 41, that would remove their powers to enter into arrangements, and that could seriously impede their capacity to co-operate in carrying out their functions. The two have to work together. The way in which the Bill is drafted enables that to happen.

4 pm

Lord Dixon-Smith: My Lords, I certainly would not have expected to put down a perfectly worded amendment that made absolute sense, but the amendments were put down quite deliberately in order to provoke a discussion and produce clarity. The Minister's explanation has clarified the situation and the background. From the point of view of the purposes of the exercise, I have made real progress, which is helpful. There is nothing else we can do because, given the stage the Bill has reached, this will probably be the last time we meet to discuss it until it goes into the tumble dryer, or washing machine perhaps. I have to hope that the soap that is used is sufficiently clean to produce a decent Bill at the end of it all. However, I cannot say that I am happy about the result. When you look at the way in which these structures are allocated, we have one lot of structures under this Bill and another lot under another Bill. That concerns a point that I will raise later this afternoon if we make sufficient progress. We ought to be looking at the confusion that arises from having these two structures in different legislation. This would have been the perfect opportunity to try to make sense of it all and not leave these functions in two separate Bills dealing with similar subjects in separate ways. That is not a good solution. With that, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

Amendments 24 to 26 not moved.

Amendment 27

Moved by Lord Taylor of Holbeach

27: Clause 9, page 7, line 27, leave out "be consistent with" and insert "have regard to"

Lord Taylor of Holbeach: My Lords, in moving Amendment 27 I wish to speak also to the other amendments in my name in this group. I note the amendment in the name of the noble Lord, Lord Campbell-Savours, in this group and I look forward to hearing what he has to say.

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We have been debating for some time how local strategies for dealing with flood risk relate to each other and who plays what role. Indeed, much of the previous debate was on that subject. As I have said before, we are pleased with much of the Bill's drafting. It recognises-as do we-that putting plans in place to manage water resources and cope with flood risks requires a strategic overview and direct local knowledge. The latter point is crucial because, regardless of how efficient or well managed the Environment Agency is-it is both of these things-it cannot possibly get to know every local stream, flood plain or community and all the needs and expectations that local communities have.

In Grand Committee last week, when discussing an earlier group of amendments, my noble friend Lady Knight of Collingtree raised some very pertinent points about how frustrated local communities can become when they do not think that proper attention is being paid to their views. That is unfortunate and should be countered because much of the work that will be done in this area will involve members of the community volunteering their own efforts for the good of their neighbours. There is a vast resource in the knowledge, expertise and experience of local people who have coped with the risk of flooding to their areas, perhaps for generations, and who have very sensible and reasonable opinions on, for example, whether river defences are up to scratch or whether it is a good idea to build thousands of new houses on a flood plain.

The Bill is drafted in such a way as to involve local communities, which is certainly welcome. Lead local flood authorities will be responsible for creating strategies that tie in with the Environment Agency's national strategy. Those proposals will, if all goes to plan, involve public consultation and the input of members of the public. That is how it should be. However, our concern is that, when all this has been done, local plans will become subservient to national ones. The requirement in the Bill that local strategies should be consistent with the national one could be a worrying straitjacket on the ability of local authorities to perform their functions in a way that serves their populations in the best way. If that scenario were to arise, I and other noble Lords would find it regrettable and foolhardy. Why should local authorities be deemed to be acting outside the parameters of the legislation if they are doing what is right, regardless of whether it matches what has been set down at national level?

I will raise another matter that fits in with this need for local input. Previously, we discussed the key strategic role that IDBs can play, both nationally and, with their local knowledge in management and planning, at local level. I know that the Minister shares my view of their importance. This matter has been drawn to my attention by the chief executive of the Association of Drainage Authorities, Mrs Jean Venables. She was the first female president of the Institute of Civil Engineers, and is the institute's immediate past president. I have explained my association with that organisation, of which I am vice-president. The IDBs would like some assurance of their role in joint projects.

In Committee, I declared my interest in the subject. The IDBs are seeking assurances about whether they will be empowered to sign up for joint projects that

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will involve the formation of limited liability companies in which they will play a role alongside other public bodies that will be so empowered. If we had been dealing with IDBs in detail in this legislation, we would have had a chance to table amendments on this point; but, as the Minister will know, that element was removed from the draft Bill.

The IDBs would like to be part of joint ventures, and have given the example of a project in Lincolnshire where a partnership group has been involved in creating and improving grazing marsh habitat. There are plans to set up a limited company to limit the liabilities of the partners in this future project. I will list the partners: English Heritage, East Lindsey District Council, FWAG, Lincolnshire County Council, Lincolnshire Wildlife Trust, Natural England and Lindsey Marsh Drainage Board. These are all bodies whose aims and objectives we support. Current legislation does not expressly state that IDBs can be part of such arrangements, but neither does it state that they cannot. It would help the situation considerably if the Minister could give some assurances on that point.

Further to my amendments in this group, I draw noble Lords' attention to the sixth report of your Lordships' Delegated Powers and Regulatory Reform Committee. There is a copy on the table next to me. As we have noted before, the committee was surprised to see that compliance with national guidelines will be mandatory. However, it goes on to recognise that there is a precedent in the 20 year-old Environmental Protection Act. I acknowledge that earlier the Government introduced their own amendments that will subject the guidelines to parliamentary scrutiny, and in due course we will be able to examine them in detail. But before we get to that point, it is worth examining whether the Government have the balance right. I have proposed that local strategies should "have regard to" the national strategy because it will allow some flexibility for unique local circumstances, which does not seem to be present under the Government's planned compulsory consistency requirement.

I am encouraged by meetings with and briefing papers from the Environment Agency, which has stressed the importance of the agency and local authorities working in partnership and with the support of other local bodies, the better to ensure that the management of flood and coastal erosion risks is co-ordinated and that all risks are managed equally and consistently. I believe that I can reflect with authority the sentiments of the Environment Agency when I say that it is keen to point out that it supports the proposed localised approach to managing flood risk and will assist local authorities in this by providing guidance and data to help develop local strategies. The agency also acknowledges that local strategies will be vital in managing flood risks, and that while they should be consistent with both national and local strategies and guidance, it does not intend that the national strategy should prescribe local flood or coastal erosion risk management decisions. That sounds promising, and it is language that I am pleased to hear. However, I remain concerned that such a pragmatic approach, which essentially it is, depends on the benevolence of the Environment Agency rather than being enshrined in legislation which could be interpreted differently at a future date.

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I am strongly in favour of the twin-track approach, but for this to be fully effective, the Government must live up to their stated intentions and allow for the entirely appropriate localism which the management of flood risk requires. I beg to move.

Lord Greaves: As a militant localist, I have considerable sympathy with the proposition put forward by the noble Lord, Lord Taylor, although I think that in this instance he is probably worrying a little too much. I shall explain why in a moment. First, I should like to thank those members of the Bill team who met me on Monday and took the time and trouble to talk about some of the remaining issues in the Bill. Whether they found it useful to talk to me, I do not know, but I certainly found it useful to talk to them.

We are talking about the difference between the words "be consistent with" and "have regard to". I am not sure that there is a great deal of difference between them, but if they were ranged on a spectrum that stated at one end, "Must do exactly as we say", while at other end it said, "Do exactly what you want", then clearly they are not in exactly the same place. The phrase "be consistent with" is a bit stronger. We are talking about the relationship between local flood risk management strategies in England and Wales and the national flood risk management strategy. I have to say that the words "be consistent with" seem to be reasonable in this case in that they allow for a sufficient degree of flexibility. It is perfectly possible to think of circumstances in which a range of local options are all consistent with the national strategy, but it is also possible to do things that are not consistent with it. The example of drainage, for example, means that we could be talking about what starts as little dribbles and seepages but ends up as big main rivers; this is going a step too far.

In considering the actions of local flood risk management authorities, we are also talking about whether they should be consistent with both the national strategy and the local strategies which the lead authorities are responsible for setting up in the first place. I think that the words "be consistent with" are perfectly reasonable. They do not introduce a degree of subservience that offends my deep-seated sense of localism. On this occasion, therefore, I support what I assume the Minister will come to say.

4.15 pm

Lord Campbell-Savours: I have had to make a choice about to whom I am going to be discourteous. I want to speak in this debate on the Floor, and of course it is courteous to be in the Chamber when the opening speeches are made, but I have listened to only part of the noble Lord's speech. Equally, I could have been discourteous and simply failed to turn up for two of my own amendments. So I hope that I am forgiven all round.

My Amendment 38A refers to Clause 11. The Explanatory Notes state:

"This clause requires English risk management authorities in exercising their flood and coastal erosion risk management functions to act in a manner consistent with the national flood and coastal erosion risk management strategy and guidance under Clause 7.

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These risk management authorities must also, with the exception of water companies, act consistently with relevant local flood risk management strategies and related guidance".

In other words, all but water companies have to act consistent with local flood risk strategies. However, the Bill also says that water companies are,

This was picked up by someone in the Keswick Flood Action Group, with which I am closely involved, and they wondered why there is an inconsistency here. Surely "have regard to" is weaker than "act consistently with". Surely water companies should at least treat seriously strategies in which local authorities have been involved, in the sense that water companies would "act consistently with" those strategies. The question is why-why the distinction between the two? That is all I have to say on the amendment.

Baroness Young of Old Scone: Last week when we debated Amendment 14 and the amendments grouped with it, I indicated that I would like to quote some of the things said on that amendment in opposition to this group of amendments. This is right at the heart of the Bill. One of the main reasons why the Bill is coming forward is that the Pitt report demonstrated that there was a lack of clarity and responsibility which caused problems with the co-ordination of flood risk management. The Bill therefore aims to try to clarify the responsibility to reassure communities which, at the time of the 2007 floods, expressed concern about a lack of clarity.

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