165ZA: After Clause 73, insert the following new Clause—

“Internal drainage boards: apportionment of drainage expenses

(1) The Land Drainage Act 1991 is amended as follows.

(2) In section 37 (apportionment of drainage expenses), at end insert—

“(f) in the case of—the Secretary of State may by order define an equivalent measure for valuing the land”.”

(i) any land to which none of paragraphs (a) to (d) applies and it is not possible to calculate a value under paragraph (e)(ii) as the relevant rating lists no longer exist or cannot be located, or

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(ii) land to which one of paragraphs (a) to (c) does apply but for which the relevant rating lists no longer exist or cannot be located,

the Secretary of State may by order define an equivalent measure for valuing the land”.”

Lord Howard of Rising (Con): My Lords, before speaking to Amendment 165ZA, I declare interests as a member of the Kings Lynn Internal Drainage Board, a payer of land drainage rates and an owner of riparian rights.

This is a simple amendment so I will not detain your Lordships long. Where an internal drainage board extends its area, it may raise special levies on billing authorities to cover expenditure in that area. This process is based on the valuation of land and is set out in Section 37 of the Land Drainage Act 1991. For one reason or another, the rating lists referred to in the Land Drainage Act no longer exist in certain parts of the country. Where it is not possible to value as set out in the 1991 Act, this amendment seeks to provide for the Secretary of State, by order, to introduce an equivalent method of assessing land. The amendment does not say how this should be achieved but would give the Secretary of State the power to do so where no other method exists. The amendment allows a gap to be plugged. In view of the simple and uncontentious nature of the amendment, I hope that the Government will feel able to support it. I beg to move.

8.45 pm

Lord De Mauley: My Lords, I thank my noble friend for raising the issue in Amendment 165ZA. We value and support the work of internal drainage boards and I agree with my noble friend that we should act to remove unnecessary barriers where it is clear that these are preventing boards getting on with their important work. It is for this reason that we have included provisions in the Bill to streamline the legal processes for internal drainage boards, making it easier and quicker for them to amalgamate or to make other structural changes.

My department has a close and constructive working relationship with the Association of Drainage Authorities, which represents internal drainage boards. Officials meet the ADA regularly to discuss a wide range of issues related to the work of IDBs, and the ADA has not highlighted this previously as one of significant concern to it. Until my noble friend’s recent communications with me, which resulted in the tabling of this amendment, we were not aware that this issue had been identified as a potentially widespread problem.

The concern that has been raised is that some internal drainage boards may no longer have access to the rating lists referred to in Section 37(5) of the Land Drainage Act 1991, and that this could present a barrier to boards wishing to extend their boundaries. However, I am concerned that the amendment of my noble friend is a tad premature, given that we have not yet received evidence on how widespread and significant this problem may be. If there is evidence to show that it poses a significant practical problem, we must consider whether it could be addressed through other means, potentially without recourse to legislation.

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I am particularly concerned that the amendment has the potential to give rise to significant unintended consequences that might impact adversely on some internal drainage boards and local authority rate payers. For example, if rating lists to be used were revalued, this could have the effect of increasing special levies on some unitary and district authorities and in turn increase council tax in those areas. The amendment also appears to provide for the creation of a two-tier system whereby some internal drainage boards would continue to use existing rating lists for the valuation of urban land while others would potentially use a different measure where those rating lists are unavailable. This could result in different levels of charge being levied on local authorities in different parts of the country. It is important that a transparent and consistent approach to calculating internal drainage board levies and rates is applied across the country.

I hope that my noble friend is prepared to withdraw his amendment. However, I will consider carefully any further evidence brought forward by my noble friend or the Association of Drainage Authorities on this issue.

Lord Howard of Rising: I thank the Minister for his comments. It is interesting that he wants to see the expansion of internal drainage boards, as my amendment is there only to facilitate that. It is very nice that he has been in touch with the association, but it is not all-knowing. Few people are.

I cannot see how there would be unintended consequences. We merely seek to give the Secretary of State the power to take action should it be so needed. If he were to take the wrong action, there might be unintended consequences.

If there are no rating lists available, what are the Government going to do—absolutely nothing? Or will they agree that the Secretary of State can produce a method of valuation that is as close to other people as is possible? The whole point of the amendment is not to tell the Government how to do it; it is merely to give Her Majesty’s Government the power to do it so that there is no blockage on what the Minister has said is their intention.

The Lord Speaker (Baroness D'Souza): Does the noble Lord wish to withdraw his amendment?

Lord Howard of Rising: I may return to this later. I hoped that the Minister might comment, but perhaps he does not want to. I beg leave to withdraw the amendment.

Amendment 165ZA withdrawn.

Clause 74 agreed.

Schedule 9: Publication requirements under the Land Drainage Act 1991

Amendment 165ZB

Moved by Baroness Bakewell of Hardington Mandeville

165ZB: Schedule 9, page 218, line 6, leave out sub-paragraph (2)

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Baroness Bakewell of Hardington Mandeville (LD): My Lords, the three amendments in this group deal with a specific area of the Bill, as we have heard: that surrounding the internal drainage boards. IDBs are very local partnerships, including landowners, farmers and local councillors, which work with the Environment Agency and Natural England to draw up plans to keep ditches and rhynes clear so that water can flow freely, thus minimising the impact of flooding. IDBs are well respected by local residents and these residents should be consulted on any impending changes to their local internal drainage board.

Farmers and landowners themselves are supposed to keep their ditches and streams clear for drainage, but this is not always done well. Those with river frontage have the responsibilities of the riparian owner inasmuch as they are responsible for the banks and clear flow of the river on their side for the length that they own. In some cases, this duty is not exercised and is sometimes ignored. A much stronger regime of these duties must be enforced by the IDBs and councils. The IDBs are responsible for the rhynes. There is a clear need for IDBs to be able to access money to keep all these channels open.

While I understand the need to keep council tax down to a reasonable level, if I were to ask the residents of the Somerset Levels whether they would rather have paid a little more council tax which went directly to the IDBs, or whether they wanted to take the risk of being underwater for six weeks, I am not sure what that answer would have been. However, I do not think that it would have been not to have paid more council tax.

IDBs need to have the power to act and to act quickly for the benefit of those in their communities. I am fully sympathetic to speeding up the process for publication of requirements under the Land Drainage Act 1991. However, any proposals for amalgamation or reorganisation of IDBs must be consulted on with those most affected. I agree that taking nine to 12 months for such consultation is neither efficient nor wise and I support reducing that time. I also understand that provincial newspapers have limited circulation. However, it is often the case that the local newspaper might be the only newspaper that some households read. They read it because the articles and news have relevance for them personally. These people will not be reading the London Gazette, however strange your Lordships may find this.

Everything we see on our television screens, read in our newspapers and hear on the radio indicates that these people who have been flooded feel disempowered and disillusioned. It would unwise to do anything in the Bill that might increase that feeling. It is essential that local people are able to have a say in what happens to their IDBs and, to do that, they need to be able to access the consultation when it takes place. Reducing the time during which an advertisement may be placed is reasonable, so long as it is advertised in locally accessible media, and placed in libraries, schools or other public meeting places as well as the local provincial newspapers. There is a financial cost to this, of course, but that is small compared to the value of local people feeling that they are being consulted. I beg to move.

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Baroness Northover (LD): My Lords, I thank my noble friend for her amendment. We agree with her that it is important for the necessary information to go to the relevant people and for the relevant groups to be consulted in the way that she says. I emphasise that we are here retaining all the powers that are already in place; this is just about not having to publish in local newspapers. I will just go through that: I think she has picked up on the key points anyway.

We consider that the requirement for the internal drainage boards and the Environment Agency to advertise a range of notices, procedures and orders in newspapers is inflexible, out of date—given the range of media now available—and often wasteful of public funds. We are therefore introducing more flexibility to the advertising arrangements. This is in line with recent legislation, such as the Marine and Coastal Access Act 2009 and the Flood and Water Management Act 2010, which allows relevant authorities to publish documents without being prescriptive in how they do so.

Internal drainage boards have complained that advertising in local newspapers can be costly and that, in some areas, it does not represent best value for money in reaching out to the relevant communities. We also understand that some local newspapers may not be widely distributed in rural communities, or in some cases may no longer be published. Our changes will allow for both a wider and a more targeted distribution of notices. This could mean, for example, distribution through the use of electronic means, parish notice boards or, in the way that she indicated, school notice boards and so on, while retaining a fair, open and inclusive process.

The Environment Agency and IDBs will still have a requirement to publish notices and bring these notices to the attention of the people who will be affected by the changes; I hope that is the reassurance that the noble Baroness needs. We are, however, keen to take full advantage of the extensive local knowledge and experience of internal drainage boards and the Environment Agency by enabling them to reach out to the communities affected by any changes in the most cost-effective way.

Therefore, I can assure my noble friend that we are not telling internal drainage boards and the Environment Agency not to use local newspapers. If they consider this to be a cost-effective way of getting their information out, they may still do so, as well as making use of other media. We agree that local people should be consulted in the way that my noble friend suggests. I hope that I have reassured my noble friend and that she will be content to withdraw her amendment.

Baroness Bakewell of Hardington Mandeville: I thank the Minister for her comments. I welcome the increased flexibility on advertising that she detailed and accept completely that, if the internal drainage boards are the bodies that decide how to advertise the alterations, then I should be happy with that. It seems that a wider and targeted approach is going to come forward, so I beg leave to withdraw my amendment.

Amendment 165ZB withdrawn.

Amendments 165ZC and 165ZD not moved.

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Schedule 9 agreed.

Clause 75 agreed.

Amendment 165A

Moved by The Earl of Lytton

165A: After Clause 75, insert the following new Clause—

“Liability in nuisance for a riparian owner

The Secretary of State may by regulations make provision to limit the liability in nuisance for a riparian owner when the Environment Agency or relevant authority withdraws from maintenance of flood defences.”

The Earl of Lytton: My Lords, I tabled this amendment following discussions I had with the Country Land and Business Association, of which I am a long-standing member. It relates to what might be described as a legacy issue, to do with circumstances where infrastructure in relation to flood defence or amelioration, which currently might fall under the auspices of the Environment Agency, might at some juncture, through the operation of this Bill, and the redefinition of the Environment Agency’s functions, cease to be maintained by a government agency.

The question is: what happens with this infrastructure? It has obviously been put in there for the reason of protecting life and property, some of which may be agricultural, and other residential or other property. This amendment intends to probe what the Government’s intentions are in the circumstances in which such a situation might occur. The Minister may say that there is no question of the Environment Agency or the state abandoning those things to an uncertain fate. However, they might say, “It’s going to be down to local communities to deal with it”—and then what? How are these obligations to be transferred?

9 pm

The point behind this is that these works, whether they be ditches, dykes, sluices, banks or whatever, are very often constructed under some regulatory or other power by a local authority, possibly historically, and have been maintained at all times since then. However, they sit physically on the land of a private owner. The Country Land and Business Association is concerned that if nothing happens to them and they fall into some sort of dereliction, under the laws of nuisance there might be a liability on the owner, purely by virtue of being an owner, from some other third party who invokes the benefit and the protection of those works. That is the sum total of what this is about. The mechanism used here, which of course it would not be appropriate to try to work out in detail in the Bill, is simply to facilitate a regulation-making power by the Secretary of State in circumstances where it may be appropriate to do so. I beg to move.

Lord Grantchester (Lab): As my noble friend Lord Whitty said in relation to an earlier amendment, it is vital that there is clarity on aspects of the scheme, especially on defining the scheme concerning the inclusions and exclusions of property and responsibilities or liabilities around flood risk.

There appears to be a lack of clarity as regards the situation concerning owners of river banks and whether they are responsible upon the withdrawal of the

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Environment Agency from funding many aspects of flood prevention and the consequential third-party losses. The amendment seems to assume that the responsibilities of the Environment Agency will be reduced, as well as the funding. While there may be recognition that owners should be responsible for their own situations, it is nevertheless recognised that covering third-party losses could be severely onerous to riparian owners. This amendment seeks to limit their liability. Nevertheless, a limit to their liability begs the question of who would then take it on.

Even at this late hour, perhaps I may tempt the Minister. As regards limiting the liability of riparian owners, could they claim that a flood was an act of God? Is the Minister able to pass judgment on such things? However, this serious situation needs clarity, as landowners, farmers and even boating sports clubs could find themselves in severe difficulty alongside more affluent band H properties.

Baroness Northover: My Lords, far be it from me to judge upon acts of God or even the implications of the Equality Act.

I thank the noble Earl for his amendment, which I will address at a little length, as I think he would probably like to hear my comments. He speaks of instances where the Environment Agency might decide to withdraw from maintaining some flood management assets and suggests that this could create a challenging situation for landowners, residents and others affected. He will probably know that we are discussing those concerns with the Country Land and Business Association, to which he referred, and that my honourable friend the Parliamentary Under-Secretary of State met it on 23 January.

We share the noble Earl’s wish to reduce the possibility of litigation, which is an aspect that is implied by some of the concerns expressed by the noble Earl. That is why we are promoting the asset maintenance protocol published by the Environment Agency. We strongly believe that developing partnerships and working arrangements between local parties to guarantee future maintenance is the best way to prevent problems arising that could lead to claims of liability.

The Environment Agency and other authorities maintain many thousands of flood defence assets. The situation to which the noble Earl refers is not one which is affected by this Bill. He is picking up instances where the Environment Agency may decide that it is no longer going to support certain flood defences and the responsibility for that would fall to others. So I would separate this issue from the Bill, as the noble Lord, Lord Grantchester, sort of did.

The Environment Agency is looking to withdraw maintenance of some of these assets where maintenance is no longer economically justifiable or where the work may not have a high enough priority for central government funding over the longer term. Examples of such assets are embankments in rural areas that protect grazing land or small flow control structures such as gates or penstocks.

Understanding these concerns, the Environment Agency has published, and recently updated, a protocol explaining the processes it will follow. The agency is

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committed to bringing together landowners and other affected parties to make sure that they are clear on their respective roles and responsibilities and that they understand the range of options that may be available to them for future management of the assets and their likely costs, benefits and impacts. This may include options for continued maintenance of assets by local groups and options involving less or no maintenance. The agency will then work with all the interested parties to help them reach agreement on how the parties involved will take forward maintenance of the asset in the future. It is possible, for example, for the landowner on whose land a defence is situated to enter into an agreement to secure contributions from his neighbours towards the costs of maintenance and repairs.

We understand the noble Earl’s concerns about whether these agreements will be possible. However, it is important to remember that third parties are also expected to play their part. If third parties refuse to make reasonable contributions for the maintenance of a flood defence asset that is protecting their property, they could diminish the success of any future claims against the landowner.

The noble Earl has suggested regulations should be drawn up to set out what actions a landowner should take in order to meet any claims of liability. This would not be the simple clarification that the noble Earl might have been expecting. Such regulations would need to cover many types of assets, the type of location, as well as a list of all possible activities that might be appropriate for their maintenance. The regulations would need to address the range of impacts of flooding, ranging from a garden becoming waterlogged to flooding of many buildings and possible loss of life. Most importantly, the regulations would need to address such complications as a flood asset being owned by one or more landowners or a number of different beneficiaries of different means. Such regulations would be complex and, to be proportionate, would need to have an element of subjectivity to what a landowner would be required to do to avoid liability.

For that reason, we do not believe that such regulations could give significantly more certainty than the current case law. We firmly believe that use of the Environment Agency’s protocol gives all the parties involved a chance to ensure an outcome that reflects the particular situation and circumstances of each individual case, while avoiding the need for litigation between landowners. For these reasons I encourage the noble Earl to withdraw his amendment.

The Earl of Lytton: My Lords, at this hour of the night it is not my intention to press the amendment; as I said at the outset, it is a probing one. I am grateful to the Minister for her explanation. I am aware of the ongoing discussions and I appreciate that this matter sort of sits outside the Bill. I suppose that if I have a hook to hang it on, it is the situation where somebody might be protected by such works and finds they are no longer protected and unable to get full cover insurance. They then go looking for the next deep pocket in order to press a claim, so the geometry of the circumstances might change.

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However, it is right that the matter should be discussed by the industries concerned. I would hope that the protocol would at least give some protection in the sense that, if one had done something in accordance with the protocol that was agreed between the parties, that would be a reasonable defence in law. However, I do not think that I can ask the noble Baroness to go into that sort of detail. I would like to reserve my position in case it is necessary for me to come back to this at a later stage of the Bill but, in the mean time, I beg leave to withdraw the amendment.

Amendment 165A withdrawn.

Amendment 165B

Moved by Baroness Humphreys

165B: After Clause 75, insert the following new Clause—

“Duty to provide sewers

In section 101A of the Water Industry Act 1991, in subsection (2)(a) for “on which there are buildings” substitute “with permanent use and generating domestic effluent”.”

Baroness Humphreys (LD): My Lords, I am grateful for the opportunity to move this amendment and, in so doing, refer noble Lords to the interest I have already declared as a trustee of the Crafnant Trust. The trust has responsibility for Lake Crafnant, a small reservoir in north Wales.

The amendment seeks to clarify the definition of duty properties as they appear in Section 101A of the Water Industry Act 1991 where an application is being made to connect premises to sewerage for the first time, and seeks to define “duty properties” as premises,

“with permanent use and generating domestic effluent”.

The Water Industry Act 1991 brought in a duty on water companies to provide a sewerage connection where the current arrangements were causing environmental problems, if that was the cheapest overall solution to the problem. Section 101A(1) of the Act states that,

“it shall be the duty of a sewerage undertaker to provide a public sewer to be used for the drainage for domestic sewerage purposes of premises in a particular locality in its area”.

Section 101A(2)(a) further defines the use of the word “premises” as,

“the premises in question, or any of those premises, are premises on which there are buildings”.

It is the use of the word “buildings” that has become problematic for some local authorities and a strict interpretation of the word has given rise to some environmental problems—problems that have caused conflict with the duties of local authorities under the Government’s own guidance, Planning Policy for Traveller Sites, issued in2012. Under this guidance, local planning authorities are advised that they must have,

“due regard to the protection of local amenity and local environment”,

and that sites should be,

“sustainable economically, socially and environmentally”.

Chesterton Fen in south Cambridgeshire is a case in point, where conflict has been seen between the 1991 Act and the Government’s planning policy. The

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Traveller site there has full planning permission and the caravan count in January of this year showed that there were 261 caravans on the Chesterton Fen Road site but, because very few of the premises there are “buildings”, none of these is connected to a main sewer and the owners have each had to make their own arrangements for sewage disposal such as small package treatment plants, cesspits and septic tanks leading to soakaways. The development there is close to the River Cam and, because the development is dense and low, there can be environmental problems. I am told that lagoons close to the banks of the river can become less than sweet smelling at all times of the year.

Local councillors petitioned Anglian Water in September 2007 to investigate whether it had a duty to provide a mains sewerage connection but Anglian Water turned the request down in 2009 and an appeal was lost in June 2011. The judgment hinged on the number of properties in the area for which the water company had a duty to provide this service under the Act. In short, most of the Travellers’ caravans or day rooms did not count, so although there are more than 250 caravan plots in the area, only 30 duty properties—houses and a few substantial mobile homes—were considered, and the economic argument was then that it was cheaper for these 30 to provide cesspits for themselves than to lay on a sewer. If all the caravans had counted as buildings, there is no question but that the water authority would have had to provide a sewer. After all, it is impossible to imagine permission being given for an estate of 250 houses without access to sewerage being part of that permission. Therefore, the whole issue revolves around the use of the word “buildings” and the lack of guidance around its definition. Many applications and appeals have had to resort to the definition provided under building regulations guidance, which is why successive applications and appeals have failed.

9.15 pm

Conscientious local authorities seek to adhere to and to carry out their obligations under the Government’s 2012 planning policy guidelines but in this case are prevented from doing so by Section 101A(2)(a) of the 1991 Act. Where caravans are occupied as permanent residences and have full planning permission, there is surely a case that residents should not be discriminated against and their premises should be classed as premises in,

“permanent use and generating domestic effluent”.

This amendment provides the opportunity to address that issue, which has two concerns; namely, the environment in which people live and the rights of people to be treated equally. I beg to move.

Baroness Northover: My Lords, I am grateful to my noble friend for raising an issue which is clearly of no small importance to any community affected. Section 101A relates to a “Further duty to provide sewers” to relieve environmental and amenity issues caused by inadequate sewerage. This section applies to “premises” and “buildings” and the amendment seeks to change that to make the duty apply to structures which may not currently be considered buildings for the purposes of this duty.

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In the case of Traveller sites, such as the one she referred to at Chesterton Fen near Cambridge, when considering an appeal in respect of a decision not to provide a sewer under Section 101A, the Environment Agency will look at the case for each individual caravan on the basis of its size, permanence and degree of physical attachment to the land. To vary the definition in this section would potentially have far-ranging and unintended consequences. We feel that the best route is to meet my noble friends to discuss their concerns further. On that basis, I hope that she will be prepared to withdraw her amendment.

Baroness Humphreys: I thank my noble friend for her reply. Given the degree of reassurance she has given me, I beg leave to withdraw the amendment.

Amendment 165B withdrawn.

Schedule 10 agreed.

Clauses 76 and 77 agreed.

Schedule 11 agreed.

Clauses 78 and 79 agreed.

Clause 80: Commencement

Amendment 166 not moved.

Amendments 167 and 168

Moved by Lord De Mauley

167: Clause 80, page 124, line 5, leave out paragraph (b) and insert—

“(b) section 76;

“(ba) section 77 and Schedule 11;

(bb) sections 78 and 79;”

168: Clause 80, page 124, line 6, at end insert “and Schedule 12”

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Amendments 167 and 168 agreed.

Amendment 169 not moved.

Clause 80, as amended, agreed.

Schedule 12 agreed.

Clause 81 agreed.

House resumed.

Bill reported with amendments.

Children and Families Bill

Returned from the Commons

The Bill was returned from the Commons with the Lords amendments agreed to.

Co-operative and Community Benefit Societies Bill [HL]

Recommitted to Committee

The Bill was reported from the Joint Committee on Consolidation Bills with amendments and recommitted to a Committee of the Whole House. The amendments were ordered to be printed.

House adjourned at 9.20 pm.