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Flood and Water Management Bill

Volume 718: debated on Wednesday 24 March 2010

Committee (2nd Day)

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

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

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

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:

“flood and coastal erosion risk management functions that may be exercised by those authorities in relation to England”.

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,

“coast protection authority may, with the appropriate consent, arrange”,

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.

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.

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.

My Lords, I am grateful to the noble Lord for moving his amendment, and I hope that I can reassure the noble Lords, 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.

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 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?

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.

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

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

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.

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 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.

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.

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.

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. 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,

“required, in exercising a flood or coastal erosion risk management function, to have regard to local strategies and guidance. In other words, water companies need only have regard to local strategies and guidance”.

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.

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.

When we discussed Amendment 14 and those grouped with it last week there was considerable support around the Committee for the idea of co-ordination between authorities and a belief that that is a very important part of what the Bill is about. So I am a bit surprised that the amendment seems to weaken the requirement to co-ordinate and co-operate. It seems to run the risk of there being two sets of authorities which take a different view on the same issues.

The Bill is not entirely successful in clarifying who is responsible for what, because there are still lots of players on the pitch—the Environment Agency, the local risk management authority, the IDBs and so on; and the water companies, in the case of the noble Lord, Lord Campbell-Savours. That is why these strategies are so important. The national strategy covers all sources of flooding, but the local strategies cover ordinary water courses, surface water and ground water, and the two really need to be plugged into each other if there is not to be continued confusion of the sort that arose graphically in 2007 in Leeds, where there was flooding from both groundwater and the main river; in Sheffield, where there was a great dispute about where the water was coming from; and also in Hull, where the management of the surface-water and ground-water flooding had to be very closely co-ordinated with management of the river and tidal flooding. It seems entirely reasonable that there should be consistency, with the national overarching strategy giving guidance to local strategies, enabling co-ordination for the effective management of floods and coastal erosion, and enabling clarity to be given to local people, while making sure that the development of solutions that meet local needs is dealt with locally, while solutions that must be resolved on a more strategic basis are part of the national strategy.

I hope the Minister will reassure those who wish to substitute “have regard to” for “consistent with”. It is important. We might be arguing about angels on the heads of pins, but the noble Lord, Lord Taylor, hit the nail on the head when he said that this was about local relationships between national bodies such as the Environment Agency and local authorities and IDBs. For the most part, they work well together locally. We may be straining inconsequentially on this matter, but it would give the wrong signal if the words were changed.

My Lords, perhaps I may seek clarity from the Minister. I thank the noble Baroness for raising the question of the lack of clarity and responsibility. My question comes back to the debate that we had last week about the link between England and Wales. Flooding in England is often caused by the flooding of rivers in Wales that come into England. Is the Minister satisfied that the overlap of management between the two countries is strong enough in the Bill?

My Lords, I suspect that it will come as no surprise, in the light of my previously stated concerns about catchment cohesion, that I do not support this group of amendments. The role of the Environment Agency in co-ordinating catchment management is very important. If anything, I would prefer to see the role of the Environment Agency as overall arbiter between local authorities strengthened. Consistency within each catchment area is vital. If local authorities have a majority on regional flood and coastal committees, that is where they can exercise their control over the regional programme of the Environment Agency. However, they will have to do it as a co-ordinated body: they will have to work in concert to assert themselves over the agency. We will come to that later. For the time being, I would not want individual local authorities to have any excuse to ignore the co-ordinating role of the Environment Agency in any catchment area.

My Lords, I am grateful to all noble Lords who have spoken in this important debate. If the noble Baroness, Lady Young, will forgive me, I will echo her remarks, which I very much appreciated, but I preferred the analogy of the noble Lord, Lord Greaves. I do not think that we are dancing on the head of a pin; but I do think, as the noble Lord, Lord Greaves, suggested, that on a spectrum with compulsion at one end and complete freedom at the other, we are close together in the middle. The Government do not disagree with a great deal of what the noble Lord, Lord Taylor, said. I would like to convince the Committee that our positions are close together, and will indicate through assurances how we expect the Bill to work. I hope thereby to confirm that the Government's stance is acceptable to those who have tabled amendments.

We are firmly committed to ensuring that local authorities have considerable discretion in respect of their flood management strategies. However, we do not consider that these amendments are necessary. It is intended—we had this discussion last week, as several noble Lords have mentioned—that the national strategy will set out broad approaches. It is not meant to be prescriptive: it is not a diktat. It outlines a broad strategy that is not to be prescriptive in respect of flood risk management in any particular area. We have given an indicative outline of the likely strategy that we foresee being developed.

The content of the national strategy will be the subject of consultation before it is approved by Ministers. That is why we also emphasised last week when we tabled our Amendment 20 that the national strategy will be subject to formal parliamentary scrutiny. Scrutiny in Wales will have parallel arrangements, as defined by the National Assembly. The national strategy will get full consideration and therefore will reflect the points I have made that it is not meant to be prescriptive but to give space for local discretion where we recognise that that has an important part to play with regard to the overall position. Local strategies need to be consistent with the national strategy. They will need to follow the national strategy to avoid having detrimental impacts on other areas within the same catchment or just further along the coast. While, at a local level, a decision to manage risk in a certain way may make sense, in the wider context it may not. That is why we need an overarching national strategy and why I was sympathetic to the concept that was advanced the other day in Committee about the catchment areas broadening the issues beyond the local authority. However, I did not want to take away risk management from local authorities as that responsibility is properly vested in them. This is a question of ensuring that risk management authorities have areas where they can develop their risk management policies in line with local needs but having regard to a national strategy which does not set out to prescribe how they should do it but guarantees that there is consistency if that is the way in which the risk management makes sense.

It is vital also that the risk management authorities act consistently with the local strategies to ensure that they work together and that the management of some risks in an area does not exacerbate others. We discussed this at some length in a previous Sitting. I assure the noble Lord, Lord Taylor, that we are not hostile to the thinking behind his amendment. However, we think that it is unnecessary. We consider that we have the balance right between the national strategy and the necessary role of the local strategy. Our Amendment 20, which the Committee debated and approved last week, responds to the Delegated Powers Committee and provides for the necessary parliamentary scrutiny. I say emphatically with regard to prescription that it is dependent on parliamentary approval, not on government diktat. When we say that the local strategy has to have some consistency with the national strategy, we are talking about a national strategy which has been thoroughly considered by Parliament.

The noble Lord, Lord Taylor, emphasised a particular dimension with regard to the internal drainage boards. I am grateful to him for giving me notice that he would raise their anxieties regarding local strategies. As he indicated in his opening remarks, the Government value the work of the internal drainage boards. We want to see them working in partnership with the Environment Agency, Natural England and local authorities in exercising their statutory functions. I am aware of the importance of the point that he made that some see participating in limited liability partnerships or companies as a desirable way of pursuing their business. I understand that statutory bodies may take actions that are incidental to their statutory functions. These incidental powers do not need to be expressly set out in legislation, although this has become more common in recent years. The Bill in effect requires partnership working by the internal drainage boards by making them risk management authorities, giving them a duty to co-operate and requiring them to act consistently with local strategies. Depending on individual circumstances, a court may find that participating in companies or limited liability partnerships in cases such as this is within their ancillary powers, and that is how they would go about their business and meet their obligations and the needs of risk management.

We are looking at whether further provision might be necessary in potential future legislation, but I assure the noble Lord, Lord Taylor, that we do not see this Bill as inhibiting internal drainage boards from carrying out their function in that way. I understand the point made by my noble friend Lord Campbell-Savours and I note the persistence with which he ensures that his concerns are considered. I want to assure him within this framework, because it seems to me that we are arguing about the relationship between the national strategy and the local position of the risk management authorities. As for my noble friend’s point about water boards—I know his anxiety about water boards—the reason why they are not included in the Bill in the way that he suggests is that they already have a statutory regulatory authority: Ofwat. That is the governing structure for their responsibilities. Their national responsibility in those terms might inhibit them from following the local strategy that my noble friend recommends.

We anticipate of course that in most cases the water boards will fit into the overall strategy and will not ride roughshod over local positions, but the water board might be concerned about a development which might put extra costs on its consumers. It has clear statutory responsibilities in those terms. The water boards are not the same as the other risk management authorities; they have other obligations; they are under a different regulatory regime. That is why, although I know that my noble friend is eager to bring them within the framework, the Bill requires them to “have regard to” local strategies and guidance in exercising any flood or coastal erosion risk management functions. Under the Bill, their position cannot be foursquare with a local risk management authority. Their obligations are greater than that. I am sure that my noble friend appreciates why that must be so.

I think that I understand what my noble friend is saying: a conflict may arise over the use of resources between Ofwat and the local strategy. Surely that applies equally to the national strategy.

Of course it does, but the difference is that the Environment Agency is charged with the national strategy. Clearly, that national strategy is not possible without the water boards having a clear relationship to that strategy and recognition of it, but they are governed by a different regulatory authority: Ofwat. Within that framework, their obligations are defined in those terms. I do not suggest for one moment that the water boards will not have regard to the local strategies; they are bound to do that; that is an important part of their work.

I emphasise that the national strategy is not as determinant as my noble friend hints at in his question. The national strategy will not define activities in a particular location. That is what we want left to the local risk management authorities. I think that that is the burden of the amendments tabled by the noble Lord, Lord Taylor, and his general approach, and a point that the noble Lord, Lord Greaves, recognised that the Bill accepts. We will not be prescriptive on activities in a location, only the broad approaches and principles which should be followed.

That is rather different from the statutory regime which governs the water authorities. I hope that my noble friend will accept that point.

My Lords, I have concluded my remarks, but it is the first time that I can recall a noble Lord walking out on one of my contributions. I hope he did not do so in total disgust.

I am sure that we can disapprove of the Minister in all sorts of ways and that the noble Lord, Lord Campbell-Savours, has the capacity to do so. We on these Benches will forgive the Minister for many things, except perhaps for the fact that he sits on the government Benches and not on ours. I am very grateful for the point that he made because it was very interesting. There is an exception for the water companies to some degree, and I understand exactly how it comes about, but I hope that the Minister will understand that we see them as an integral part of this partnership. It is very important that they are consistent with a strategy that is being developed both nationally and locally, and we hope that the regard which they must have is not too far from the consistency to which the Bill refers and which the Minister advocates.

This has been a very useful debate in the sense that we have been able to talk about these things. I think that the focus is on the degree to which the success of all flood management will depend on local input and on the local partnerships that are formed between government agencies and the local flood authorities. It is really important to have been able to debate that point. I am very grateful to the Minister for his particular comments on IDBs, which are quite important for particular project managements. I thank all noble Lords who have spoken in what has been a very worthwhile debate. I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

Amendments 28 to 31 not moved.

Clause 9 agreed.

Clause 10 : Local flood risk management strategies: Wales

Amendments 32 to 37 not moved.

Clause 10 agreed.

Clause 11 : Effect of national and local strategies: England

Amendments 38 to 39 not moved.

Clause 11 agreed.

Clause 12 : Effect of national and local strategies: Wales

Amendment 40 not moved.

Clause 12 agreed.

Clause 13 : Co-operation and arrangements

Amendment 41 not moved.

Clause 13 agreed.

Amendments 42 to 43A not moved.

Clause 14 : Power to request information

Amendment 44

Moved by

44: Clause 14, page 11, line 22, leave out “information in connection with” and insert “such information as is reasonably necessary to perform”

My Lords, Amendment 44 is fairly straightforward. Clause 14 allows the Environment Agency and lead local flood authorities to request a person to provide information in connection with flood and coastal erosion risk management functions. On first reading, that sounds quite reasonable, and undoubtedly a flow of information will be required to set up strategies to carry out flood risk functions and to co-ordinate properly with other relevant bodies. However, I am concerned that there is a lack of proportionality here. The obligations in both cost and time that could be imposed on a land manager, for example, could be huge. The power to request information should therefore relate only to information that is “reasonably necessary” in connection with the authority’s flood and coastal erosion risk management functions. That is what the amendment seeks to do. Moreover, we do not see why the information has to be provided in the form and manner requested. If the provider can supply it in a relatively understandable alternative form which is cheaper and easier for him, he should not be prohibited from doing so. I invite the Minister to comment on that.

When this point was raised in another place, the Minister’s honourable friend Huw Irranca-Davies said that it is important that authorities can ask for information from different organisations in a consistent way to manage the cost of collating information centrally. However, that rather misses the point. The power is not limited to organisations, because information can be required from anybody. Clause 14 quite clearly states “request a person”. More significant is that it seems somewhat unreasonable that the legislation is based on the convenience of the agency rather than the land managers and businesses that may be required to provide the information. I do not doubt that the clause is necessary, but I feel that the wording is too stark and potentially open to cause considerable inconvenience where, I am sure, none is intended. What I am asking for is a certain proportionality and flexibility. I beg to move.

I am grateful to the noble Earl, Lord Cathcart, for giving us an opportunity to hold a small debate about the use of the English language as much as anything else. Amendment 44 expressly requires authorities only to make reasonable requests for information which they require to fulfil their functions. It would have the effect of slightly reducing the scope of information that authorities can request for their flood and coastal erosion risk management functions. We take the view that it is important that authorities should have sufficient powers to acquire information from those who would be expected to have it so that they can effectively manage what are often complex and interrelated drainage problems.

There may be little practical difference between information that is “reasonably necessary” and that which is connected with the authority’s flood and coastal risk management function. However, it may not be possible to judge what information is necessary until some of it has been reviewed. This could lead to multiple requests for information, increasing the overall burden on both the authority and the person providing the information. As an example, until information on the standard of protection afforded by a flood defence has been considered, the necessity of obtaining information on the assets at risk of flooding behind it might be difficult to ascertain.

The noble Earl asked particularly about the situation where a person who was asked to provide the requested information felt that it could not be provided in the manner or, I would guess, within the timescale requested. In practice, we would expect there to be informal discussion before an enforcement notice is served and that authorities will agree reasonable time periods with the relevant person. Where the person providing the information is unable to comply with the request either by fulfilling the requirements to the specified standard or within the timescale requested, they can make representations under Clause 15(2)(c) in respect of any enforcement notice. There is a right of appeal against any penalties imposed. I should also make the point that it is implicit in all legislation that public authorities should behave reasonably, so the wording set out in the amendment is not needed. With that explanation, I hope that the noble Earl will agree to withdraw his amendment.

I thank the Minister for explaining the Government’s point of view. At this stage, I beg leave to withdraw the amendment.

Amendment 44 withdrawn.

Clause 14 agreed.

Clause 15 : Civil sanctions

Amendment 45

Moved by

45: Clause 15, page 12, line 19, at end insert—

“( ) Any regulations under subsection (8) may not be made unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament.”

I move this amendment in the name of my noble friend Lord Taylor. I will also move the others in his name that are in this group.

Amendment 45 applies to Clause 15, which allows for penalties to be imposed should anyone fail to provide the information requested under Clause 14. Given our concerns about that provision, some of which were discussed in the debate on the previous group of amendments, it is particularly important that there should be an appeals process. One option would be to put in the Bill how an appeal might be made. Our fears were somewhat assuaged by the explanation from the Minister in another place that there would be a right of appeal.

The clause gives the power to the Minister to make regulations specifying the appeal route. Your Lordships' Committee on Delegated Powers and Regulatory Reform has once again struck a blow. It has this power in its sights, as well as others covered by amendments in this group. Our amendments were intended to give effect to the committee’s recommendations. The Government subsequently tabled their own amendments, which are neatly paired with ours. They concern other areas of the Bill that would benefit from proper parliamentary scrutiny. It is therefore satisfactory that the Government have taken on board these recommendations. I beg to move.

My Lords, I was waiting for the Minister to speak, because Amendment 80 in my name is an amendment to a government amendment. However, I will say briefly that in general we sympathise with the points put forward by the noble Duke and by the Conservatives. The amendment that we are putting forward states that the government amendment concerning appeals which we will debate in a minute should require affirmative status throughout, and not just on the first occasion. Appeals seem to be sufficiently important for this to be entrenched.

I will make one further topical and ironic comment. I wonder why the Conservatives bother with insisting on all these affirmative resolutions when they are never prepared to vote against any of them, however unfortunate the contents, when they come to the House. There seems to be an inconsistency. As I said, that was an ironic comment. We support the amendment.

I thank the noble Lord for giving way. The custom of the House is that we do not vote down government statutory instruments. We seek to reason with the Government over statutory instruments, but it is not our practice to table fatal amendments. Unfortunately, other parties take a different view. We consider that there is a long-standing agreement between the two Houses of Parliament that this is the way in which we conduct our business. It serves the House well because it gives us an opportunity to debate issues. We have found that it is possible to reason with the Government on statutory instruments through this process. I am sorry that I cannot accept the criticism of the noble Lord, which may contain a certain amount of provocation. The truth is that tabling fatal amendments to statutory instruments is foolhardy and counterproductive, given the custom of the House.

I will respond briefly—I do not want to waste too much time on this. Historically, the House of Lords has voted down statutory instruments. Our clear view is that if the House is not prepared to do that in exceptional cases and very occasionally, there is no point in having them, because it is the ability to vote down statutory instruments that makes the Government look carefully at them to make sure that they are not undesirable. I am tempted to say that all that the noble Lord has proved is that the Tories here are wimps, but perhaps that is too provocative.

My Lords, I do not wish to intrude on a slightly unpleasant private argument between the two opposition parties, particularly as we had the benefit of hearing an extended debate on orders in the Chamber earlier this week.

The noble Duke, the Duke of Montrose, and others are proposing amendments on appeals provisions in the Bill. All their amendments would make any and all use of the powers to make regulations on appeals subject to affirmative resolution. I am sure that they have been tabled as a response to the recommendations of the Delegated Powers and Regulatory Reform Committee report.

The government amendments in this group also respond to the recommendations of that committee and would make the regulation-making powers under Clause 15, paragraph 15 of Schedule 1, paragraph 25 of Schedule 3 and Sections 2E and 19A of the Reservoirs Act 1975, as inserted by Schedule 4 to the Bill, subject to affirmative resolution in the case of the first regulations made in each case.

We take the view that, in doing that, the House will be presented with a full opportunity to scrutinise and debate the detailed appeal provisions proposed in each of the regulations. That approach is fully in line with the DPRR Committee’s recommendation and has precedent—for example, in Section 2(9) of the Pollution Prevention and Control Act 1999.

The Bill requires the Minister to make these regulations establishing a right of appeal in each case. The first set of regulations in each case is, therefore, crucial if the Minister is to fulfil this obligation. They will also set out important matters such as the grounds for appeal. However, once the appeals provisions have been established, changes are likely to be largely procedural and involve technical detail which is unlikely to be of significant interest or concern to Parliament or to the Welsh Assembly.

Small changes may be needed to keep the provisions up to date or to reflect changing circumstances. To require a debate every time this happened would, in our view, be disproportionate. The negative procedure for subsequent exercise of the power provides an adequate and proportionate level of scrutiny. If there were concerns, the Merits of Statutory Instruments Committee could draw the legislation to the attention of Parliament and a debate could be called in the normal way.

With that explanation, I hope the noble Duke will feel able to withdraw his amendment.

I thank the Minister for his explanation, although obviously I support my noble friend’s amendment. As he will be aware, I am never very happy about secondary legislation and having to do everything through secondary legislation, so I am grateful that, in this case, he has returned with amendments.

Perhaps I could also reply to the noble Lord, Lord Greaves, as the Minister started to speak before I could get to my feet and it seemed rude to interrupt him when he was in full flow. There is an important understanding in the House concerning statutory instruments. However, when we consider the procedures of the House, perhaps we could look at that aspect. As the Minister indicated, we can speak to a statutory instrument but we cannot alter it. Some of us feel very frustrated with secondary legislation because of the inadequacy of the original Act itself; one will have discussed a Bill, seen it become an Act and then later have to deal with the secondary legislation arising from it. Sometimes these things take years. It was only last week, I think, that we dealt with the Commons statutory instruments—

I am sorry—I have lost five days. It seems a long time ago. To do something four years down the line is not very satisfactory for whoever is in government. My noble friend has raised an important amendment. I do not know whether the Government’s response will be similar, but I support the amendment. I also would like to clarify things with the noble Lord, Lord Greaves, because he and I will certainly not agree on the position that he took.

I thank the Minister for laying out so clearly where we will stand with the secondary legislation and how the appeals will go forward. I merely ask the noble Lord, Lord Greaves, to be very careful before he comes out with such accusations. I believe that there was one case about four or five years ago—

We would like to know exactly what the noble Lord intends, because it has been a very well established convention in the House that it must be a very serious matter before something in a statutory instrument is overturned. In the mean time, I beg leave to withdraw the amendment.

Before the noble Duke withdraws the amendment, perhaps I may say that he is agreeing with the point that I was making, which is that it must be a very serious matter, but it is possible. I believe that there have been three cases in historical time.

Amendment 45 withdrawn.

Amendment 46

Moved by

46: Clause 15, page 12, line 21, at end insert “to reflect a change in the value of money”

Amendment 46, like Amendment 47, is in response to the Delegated Powers and Regulatory Reform Committee. The committee recommended that the power to vary the penalty should either be limited to rises that relate to the rate of inflation or that it should be subject to the affirmative procedure. We are happy to accept the DPRR Committee recommendation that power to vary the penalty be limited to rises that relate to the rate of inflation. Therefore, our amendment to subsection (9) restricts the power to vary the maximum penalty to changes in the value of money. I beg to move.

I speak to the amendment in the name of my noble friend Lord Taylor of Holbeach, Amendment 47. As the Minister explained, Clause 15(4) provides that a penalty imposed for failure to comply with an enforcement notice must not exceed £1,000. Subsection (9) enables the Minister to substitute some other amount by negative order. Without the amendment, the power to do so could in theory be unlimited. As the Minister explained, this was another point picked up by the DPRRC, which our amendment sought to address and which has been met by the government amendment.

It is a matter of regret that a Bill that has been circulated through government departments for so long should repeatedly fall short of what we expect of good legislation. That highlights the important role that this place plays in scrutinising legislation and holding executive power in check.

To be fair to the Government, they have used the opportunity of this possibly truncated Grand Committee to make the changes recommended to them. For that, we are all thankful. This has been a fairly dismal run of amendment groupings which has eaten into the time available for scrutiny of the Bill. The Government have been very reticent to tell us whether we will be given enough time properly to scrutinise the whole Bill. I invite the Minister to tell the Committee what representations he has made to his colleagues to ensure that we will get time to do the job properly.

I fear that the final question of the noble Duke, the Duke of Montrose, is a bit above my pay grade.

We attach huge importance to the Bill. We are grateful for the general support of the opposition parties and of other Members on the Cross-Benches for what we are seeking to do—especially in the implementation of the Pitt report. We believe that the Bill will have the opportunity for adequate scrutiny when we combine what was done in the other place and what we are able to do in Grand Committee. Whether the Bill will go any further after today is, as I said, not a matter for me, but I am sure that the noble Duke's comments have been noted.

Amendment 46 agreed.

Amendment 47 not moved.

Amendment 48

Moved by

48: Clause 15, page 12, line 35, at end insert—

“( ) The first sets of regulations under subsection (8) may not be made unless a draft has been laid before and approved by resolution of—

(a) each House of Parliament, in the case of the first regulations made by the Secretary of State, and(b) the National Assembly for Wales, in the case of the first regulations made by the Welsh Ministers.”

Amendment 48 agreed.

Clause 15, as amended, agreed.

Clause 16 agreed.

Clause 17 : Levies

Amendment 49 had been withdrawn from the Marshalled List.

Clause 17 agreed.

Clause 18 : Environment Agency: reports

Amendment 49A

Moved by

49A: Clause 18, page 13, line 17, at end insert—

“( ) The Minister must, as soon as practicable after he has received the report under subsection (1), publish it.”

Yesterday, I was rather worried that Amendment 49A was not on the Marshalled List. I am very glad indeed to see that that mistake has been put right today and the amendment is included.

I was most disappointed not to be able to be in the House on 24 February to take part in the Second Reading of the Bill, although Hansard records my words in the debate on the Queen’s Speech with regard to this subject. I admit that I am not a farmer and that I do not own a reservoir, nor can I claim to be a very active gardener, although I love my garden. My interest is that I am the president of the Nene Flood Prevention Alliance. For the information of noble Lords, who may not be aware of this fact, there is a river whose name is spelt Nene, which runs through the whole of Northamptonshire, but in the south of the county its name is pronounced as the river “Nen”, while in Peterborough, which is also in the county of Northamptonshire, it is pronounced as the river “Nene”. That is a little confusing.

As I say, I am president of a group of volunteers who have studied our local flood problems for many years. They are now extremely knowledgeable about every aspect of the matter and have convinced me that there must be not only openness but a public right to question what is to be done to save our area from floods. They have already suffered several grievous floods. This amendment seeks not only availability but clarity and opportunity. None of this can happen if reports go only to the Minister and probably finish up in either a drawer or a filing cabinet where the sunbeams of public knowledge can never reach them. Our Nene committee has met repeatedly with impenetrable stonewalls when seeking information from the Environment Agency. I wish to quote a letter written only last month which illustrates this problem. It is from a member of the Nene committee who was studying a problem in our area with regard to the operation and management of the Washlands. The letter states:

“I am most concerned to be made aware that not only do you not have the original design drawings and calculations, but that you have now indicated that even the operational figures related to the control sluices are also not in your possession”.

Nobody knows where they are. The letter continues:

“In such a situation I am somewhat mystified to understand how you are able to be so clear, that the whole flood management systems installed in this area meet all the necessary storm and flood criteria. This missing data is not only necessary, but essential, to ensure that the right decisions are being made to protect both the town and the downstream areas”.

But apparently none of it is anywhere to be seen. I wish to quote one further sentence from quite a long letter. It states:

“In respect of the lack of so much basic information, I question whether your office has ever carried out an investigation into when these documents were ‘mislaid’”.

I think that all noble Lords must recognise that that situation is very far from ideal.

Earlier, I had sought information on a flood matter from the then chief executive of the Environment Agency and I was sent a letter that those who informed me on the committee were able to show me was incorrect. It was an important matter because it dealt with the likelihood, and the frequency of likelihood, of floods in my area. The information I was given from that source was incorrect. I was very grateful for a gracious letter of apology in which it was agreed and admitted that the details I had been given were wrong. We were not likely to have floods only once in 200 years. In fact, it could be once in less than 50 years and, in some parts of our county, only 10 years. Noble Lords will see that the difference was very great.

At Second Reading, the noble Lord, Lord Smith of Finsbury, was wonderfully encouraging in his clear acknowledgement that improvements need to be made. He said that,

“there has been real confusion about who is responsible for doing what”.—[Official Report, 24/2/10; col. 1040.]

He is so right. He gave me another reason to cheer when he stressed the need to work with and to “consult”, which is important, with “local communities”. Members of my local community know so much and have studied so thoroughly that their input will be crucial.

Neither of these things will happen unless the reports are made public. Last week, in Committee, the Minister gave me the impression that the Government might be prepared to look favourably on this amendment, which refers to matters of huge concern. These people are most concerned because their lives will be blighted if they do not know, if they are not told or if they cannot consult. I feel that the Minister has been good enough to listen to these pleas. However, without seeking to look this gift horse in the mouth too much, will the Minister say what security risks, which he mentioned last week in Committee, may be involved in so doing? I beg to move.

My Lords, I support my noble friend Lady Knight’s amendment, which calls for the Environment Agency’s report on flood and coastal erosion risk management to be published by the Minister when he receives it. She has pointed out why it is important that this is done in the interests of transparency and reassurance for the people who feel that their lives may be affected. As my noble friend has pointed out, it is of considerable, even acute, interest to people to know where they stand. The risk of flooding is a grave concern for many communities which have suffered terribly from inundation. The cost, in financial but also emotional terms, of having your house flooded is likely to be considerable.

As my noble friend pointed out, there is a great hunger in communities for information which directly affects them. She has mentioned the trouble that people in her area have had in trying to find out what has happened to resources that they expected to see after flooding has damaged their homes and businesses. It is a matter of immense frustration to come up against bureaucracy, as I am sure noble Lords will know only too well. The publishing of reports will not necessarily help to solve all problems, but if we operate, as I think that we should, on the principle that as much information is available to the public as possible, we can be sure that we are at least helping people to information which they could use to help themselves.

In our previous Committee debate the Minister gave his response to this amendment, even though it had not been moved, and he indicated that his response would be the same today. In fairness to the Minister, there was considerable confusion about whether the amendment was being moved in that group; we understand that. He agreed that reports should be published, although he added the caveat that publication may have to be delayed because of security or other reasons. Indeed, my noble friend has already asked if the Minister could indicate what those reasons might be. It is frustrating, as I said, not to be able to gain access to information, and I would not like any unnecessary delays to be allowed to creep in. Will the noble Lord therefore set out what protocol will govern the publication of agencies’ reports and why a Minister might withhold immediate publication?

Let me begin by saying that it is all right for the noble Lord to be a little prickly when the noble Lord, Lord Greaves, produces a line or two, and I am entitled to be prickly about procedure. The Committee will recall that the amendment of the noble Baroness was grouped with an amendment that was moved. It being grouped with that, when I respond I expect the debate to revolve around all the amendments in the grouping. Whether noble Lords choose to speak at that point is entirely for them, but if an amendment is grouped with others, it is only reasonable, from the ministerial position, to assume that comments are expected in response to all the amendments. That is exactly what I delivered, and having delivered those comments once, I do not see why I should have to deliver them a second time. I would run the risk of departing from what I said on the last occasion, which would be catastrophic.

I want to reassure the noble Baroness, as I did last time—although in her terms rather prematurely, but in my own terms quite accurately—that of course we accept that the report would ordinarily be published as soon as practicable after it has been received. I want to assure her again that that is our position. She asked why there should be any deletion from the report, and I accept entirely her argument, one that has been reinforced by the noble Lord, Lord Taylor. Such information should be in the public domain as far as possible because people need to know where they stand on such an important issue; I could not agree more.

However, the noble Baroness will appreciate that there are some parts of our water environment that we might not wish to put into the public domain because that information could be of assistance to those who wish us harm. Here I make the obvious point that very large dams and reservoirs could attract the attention of terrorists, so we have to take care of such information, to say nothing of the fact that we have certain security and national defence positions with regard to the use of water. That is why we have some hesitations, but the general position is clear. Unless there are issues of security, which was the only reservation I expressed, all the information in the report would be made available to the public as quickly as possible. That is broadly what I said on the last occasion and I am delighted to reiterate the position.

I am sorry if I seemed to be difficult. That is the last thing in the world I wish to appear to this Minister because I join with many people in admiration of the way in which he deals with and answers questions. With the greatest respect, I do not feel that I have had an awfully good answer, but I appreciate what he has said about accepting the broad thrust of what I am trying to do here. Therefore I look forward with eagerness and optimism to seeing the thrust of the amendment being included in the Bill. At this time, however, I beg leave to withdraw it.

Amendment 49A withdrawn.

Amendments 50 and 51 not moved.

Clause 18 agreed.

Amendment 52

Moved by

52: After Clause 18, insert the following new Clause—

“Monthly recovery reports

(1) Following a major flooding event, the Secretary of State must publish monthly reports summarising the progress of the recovery phase until the recovery process is considered complete.

(2) The reports must specify—

(a) the number of households displaced from all or part of their homes, and(b) the estimated date for the completion of the recovery process.(3) The Minister must consult other relevant bodies before making his reports.”

My Lords, I hope that the Minister is convinced that the only reason we pursued the debate on the last amendment was that we liked his answer so much, we wanted to hear it twice. I am very grateful to him for his response. This is a similar amendment. It concerns the way in which information is distributed, in order to give people the opportunity of feeling that they are in the picture. It is a simple amendment that has a great deal of merit. It would place a duty on the Secretary of State to publish and update a report on the month-by-month progress being made, or not being made, after a major flooding event. As a good Conservative, I am in favour of adding to bureaucracy and paperwork in Whitehall only when it is strictly necessary. However, there is a good reason for my suggestion in this amendment: it will assist the Secretary of State to make the most of his powers to help people who are in need.

We have already discussed the devastation wrought by the flooding in Cumbria last year. I make no apology for returning to it. Anybody who has visited the area, as I and other noble Lords have, will be well aware that, despite the sterling work being done by the authorities and by local communities to get themselves back on their feet, there is still a great deal of work to be done. Any noble Lords who saw “Countryfile” on Sunday will have seen that there is still an enormous backlog. Robert Jackson, whose farm I visited, faced the devastation of all the stone on his fields. It was good to see the Minister from another place, Mr Huw Irranca-Davies, visiting at that time.

The point of the amendment is to put in the public domain details of the progress that is being made. The Government still have little or no idea how many people are still waiting to return to their businesses and homes. If the Minister has that information, it would be good to hear it; but it has not been in the public domain as far as I know. To be flooded out of one's home is traumatic, and the work required to make it habitable again can be daunting. Housing is one of our society’s most basic requirements. It would be useful, to say the least, if the Government and the local authorities concerned were aware of any hold-ups in the recovery process after the flood. To be armed with this knowledge would not of course be a panacea, but it would allow the Secretary of State to use the influence of his office, and his powers, to direct assistance to where it was needed most. With this Bill we are setting up a system of co-ordinated co-operation in advance of flooding events. It would complete the circle if we inserted a mechanism that would assist co-operation and provide us with a record, as well as object lessons that could be learned by other flood risk management authorities in other parts of the country in how to deal with similar situations that might arise. I beg to move.

My Lords, I support my noble friend's amendment. None of us will forget the scenes that we saw on our screens, not just last year but also in York and in Tewkesbury not that many years ago, and the devastation and upset caused to individual families. It seems to take ages before those families can get back into their homes. I hope that the Minister will not say that this measure is too costly. One could post a monthly update report on the web. We have modern communications: things do not always have to be in hard copy. I support my noble friend's comments about bringing to the Minister's constant attention the fact that people are still waiting, and perhaps the fact that things could be moved along more quickly than they have been in the past. I hope that the Minister will accept that.

I can add little more, except to say that over the years we have seen some major flooding. With changing climate patterns, I fear that we will continue to see flooding in the country. Anyone who has experienced water coming into the house will know how bad that is, but sewage coming into the house is a most horrendous experience, which many people have been through. My noble friend also mentioned the cost to those whose land has been affected. Many families lost livestock in the Tewkesbury incident and recently there has been flooding in Cumbria. A great amount of debris has landed in fields and it takes time to clear it away. I hope that the Minister will look at that sympathetically, and, even if he does not like my noble friend’s wording, I hope he will take on board the thrust behind these amendments.

I certainly agree that this is a well-intentioned amendment. What the noble Lord wishes to achieve is intended to be entirely constructive and helpful. As the noble Lord, Lord Taylor, explained, the amendment requires regular monthly reporting to Parliament on recovery following a major flood.

The Government's response to Sir Michael Pitt's review, published in December 2008, made it clear that we support that idea in principle but that it would be necessary to depart from a monthly cycle if operational considerations meant that information was required, and that it could therefore be published more or less often than monthly. The Government's emergency response and recovery guidance has been updated to that effect. It also makes it clear that such reports should include, where possible,

“the numbers of households still displaced from all or part of their homes”.

On the flooding in Cumbria and the number of people who have remained displaced, based on a questionnaire that went live on 25 January and has since been responded to, the number is about 150. That is based on 74 actual replies to the questionnaire and a 50 per cent response rate to date. Also on the Cumbria emergency, during the response to those devastating floods, local agencies provided daily updates on what was happening and on the impact on the local area. As soon as the immediate emergency ceased, the Government Office for the North West provided recovery reports on the agreed basis of three times a week. That frequency was subsequently reduced and updates are now provided on a weekly basis. The chief executive of Cumbria County Council is also invited to join the ministerial flood recovery meetings chaired by my right honourable friend Rosie Winterton MP to raise any issues or difficulties which require support. That group met as recently as last week.

The Government are committed to public reporting of progress in the recovery phase and could choose to do so on the basis of some arbitrary period, such as a month. However, we would not wish that undertaking then to require reporting on the same basis from the local authorities and other bodies involved in recovery from a local emergency if that were not an appropriate requirement in the light of the local circumstances.

More frequent reporting of certain facts will often be necessary to manage the recovery effectively, but in other circumstances, or later on in the recovery phase, such frequency will merely be a burden and a distraction. In the latest Pitt implementation progress report, in December, we reported concerns from local authorities that the reporting procedures should not be too bureaucratic. I can assure the noble Baroness that this is not a matter of it being too costly; it is a matter of what works best and what is the most effective way to provide the information and to ensure that we act on it.

I should also remind the Committee that Parliament has many others ways of ascertaining facts, reviewing progress and challenging Ministers accordingly. In the light of that, and while I share the desire to ensure that appropriate information on recovery from flood events is reported publicly, I do not think that the amendment is necessary. The Government are concerned that it could be bureaucratic and burdensome and might lead to reporting arrangements that were not suited to the specific circumstances of particular events. I hope, with that explanation, that the noble Lord will feel able to withdraw the amendment.

I hope I am right in thinking that the Minister said that my noble friend’s amendment required the information to be reported to Parliament. Nothing at all in his amendment requires it to be reported to Parliament. I am sure that my noble friend will follow my intervention. I do not know whether the Minister made a slip of the tongue, but if he reads the amendment he will see that there is no reference in it to Parliament.

I made the point, however, that Ministers are accountable to Parliament, and if Parliament feels that they are not providing the information properly, it has the opportunity to call them to account. I quite accept that the amendment tabled by the noble Lord, Lord Taylor, does not mention reporting to Parliament, but, with great respect to the noble Baroness, that is a detail. The important point is whether a rigid monthly timetable will be appropriate in all circumstances, particularly when it may be necessary to produce reports much more frequently than that.

I thank the Minister for that response. In some ways it is encouraging, and in other ways it is a little disappointing. Sometimes having a bit of discipline in these matters and being obliged to do something regularly introduces a structure, a method and a comparative measurement that is useful. On the other hand, it is quite clear that the Minister is committed to ensuring that the Government work on the post-flood strategy, and I have no doubt that the Government have learnt a great deal, particularly from the most recent Cumbrian floods that occurred in a somewhat different atmosphere from the great floods of the summer of 2007 and the Pitt report that followed them.

I am grateful for the Minister’s explanation of what the Government are doing. I still think that there is a huge amount to be done and a lot to learn about ways of doing things better. I hope that the Government will take that on board. Meanwhile, I beg leave to withdraw the amendment.

Amendment 52 withdrawn.

Clauses 19 to 21 agreed.

Clause 22 : Establishment

Amendment 53

Moved by

53: Clause 22, page 15, line 1, after “a” insert “catchment based”

My Lords, I apologise for harping on like a bad gramophone record that is stuck in the groove about catchment-based management, but I believe very strongly that this is a pearl that we have in this country and that we must not throw it away lightly.

It might not be strictly necessary to specify in the Bill the criteria, the boundaries and the membership of the new regional flood and coastal committees, but the trouble with producing guidelines later is that it is often difficult for Parliament to have a say or to find the time to focus on what is happening and on how the guidelines are being implemented. As what the Minister has to say on the Floor of the House—in other words, here—during the passage of the Bill becomes important, I will look for a few well judged words from him.

The Minister indicated in his reply to me at Second Reading that catchment-based committees were more than likely, but the Minister in the other place had indicated earlier that catchments would be only one of many criteria used for establishing the boundaries of these committees. It is to be hoped that the Minister’s later reply to me represents the department’s current, not to mention future, thinking.

On my Amendment 56, which is also in this grouping, I will re-rehearse the arguments about having an overall local authority majority on these committees.

The reason for paragraph (a) in Amendment 56 is that I sympathise with the concern of various noble Lords to achieve democratic accountability on a local basis and, wherever possible, to give local authorities power over their affairs. However, there is a question of subsidiarity here. As I understand it, the principle of subsidiarity is that decisions should be taken at the lowest level that is practically possible. Here, although in an ideal world I would want local authorities to take decisions, it is only practical that they should do so within the cohesive unity of the catchment. Thus, if the RFCCs are established on catchment boundaries, it is only right and proper that the local authorities as a grouping should have an overall majority on those committees—as they have at present on the equivalent committees. That will give local authorities as a catchment grouping overall control over the local flood and coastal strategy, without allowing them to act individually and independently from each other. Again, I look for some favourable words from the Minister on the matter.

I will not speak to paragraph (b) in my Amendment 56, which refers to IDBs, farmers and landowners, because we covered all those arguments last week, albeit in a slightly different context. Again, I would be grateful if the Minister could give me some encouraging words concerning the likely membership of the committees.

While on my feet, I should just refer to the new Amendment 56A tabled by my noble friend Lady Knight. I have grave worries about any possibility of delays in the planning system. I think that it will be impossible for the committees to consider individual planning applications—especially if they are dealing with a whole catchment and several local authorities—unless they will be sitting virtually all day and every day. In any case, the Environment Agency already has a duty to consider the possible flood implications of all planning applications and does so in most cases. Giving those powers to the committees would not be suitable. I beg to move.

I have tabled Amendment 54 in this group. Before I speak to my amendment, I have very great sympathy with and support for the points made by the noble Lord, Lord Cameron of Dillington, on the question both of catchment areas, which we discussed in our previous sitting, and of local authority majorities on the regional flood and coastal committees. One problem in the latter case is that local authorities do not always have boundaries based on catchment areas. Some of the boundaries between West Yorkshire and Lancashire, or Greater Manchester, are based on them now more than they used to be before local government reorganisation in 1974, but there are still parts of the existing county of Lancashire which are east of the Pennine watershed and substantial parts of north Yorkshire and the Yorkshire Dales which are west of the watershed, in the Ribble catchment area. So there are difficulties, but they are not insuperable. I will be very interested to hear the Minister's reply to the noble Lord’s first amendment about whether the Government see the regional committees being based on catchment areas and, if not, the extent to which they think that they will have to vary.

My amendment is tabled in case the Minister says that they will not all be based on catchment areas and that there will have to be departures from that principle. It states:

“Where a catchment area boundary does not coincide with the boundary of a Regional Flood and Coastal Committee, the Regional Flood and Coastal Committees that include any part of that catchment area shall establish arrangements to ensure that flood risk management within that catchment area takes place on a co-ordinated basis”.

The Minister may tell me that that is a common-sense approach, that of course it will have to happen and that it is not even in the legislation. This amendment is put down to probe his thinking on this matter and to get assurances that, if some of the regional committees are not based on catchment areas, this kind of co-ordination will be built into the system.

My Lords, my question as to whether Clause 22 should stand part of the Bill is in this group. It was put down with somewhat similar motives, but with a slightly different background. When one reads this, one is surprised that the Environment Agency will have the power to create regions. When you stop to think about it, we have all sorts of regions already all over the country. I found myself wondering whether what I was looking at was a prime example of what I call the silo mentality of government departments in which one government department does not consider what another one has done. Perhaps it just disapproves or thinks that it is unsuitable for the purpose for which it is intended, which I suspect is what the Minister’s reply would be.

In this country, we have a very expensive regional structure for other purposes, which causes a great deal of vexation to some of us and some of us might like to see it go. I find myself wondering whether perhaps the Government are being pessimistic about their chances of surviving and wish to keep a form of regional structure for this purpose anyway. There are a host of motivations why I put this down. If we come to the amendment in the name of the noble Lord, Lord Cameron of Dillington, and it is accepted that the regions are based on regional river catchment areas, I would accept a combination of river catchment areas. Some areas do not have massive river basins and you would want a combination of river basins to make a region.

That said, I can see that if you are dealing with the Trent, the Severn or the Thames and major river basins, there is a great deal of merit in having a single committee to deal with that. If that is called a regional committee, so be it. But I would rather call it a river basin committee and we would know precisely what we are talking about. Because of the way in which this is worded, there could be confusion between one type of region and another. If these are regions with a single, specific purpose, it would be better that they remain that way, rather than in the polite way in the Bill, which states:

“The Environment Agency … must divide England and Wales into regions”.

If it says river basins or regions, that is fair enough. But it does not.

I put this down to enhance—if that is the right word—this debate or to attempt to make the Bill more clear. Again, I have to accept that in the end we are in a position where we can do nothing about it. What comes out of the washing machine or the spin dryer at the end of the system remains to be seen.

This amendment is intended to deal with projects to build on land which is a flood plain. The motive and belief behind it is similar to the amendment I moved earlier; namely, that the public have a right to know what official action is planned in connection with a threat and a danger to the things which profoundly affect the lives, finances, capabilities and future of hundreds of thousands of people.

Until now, it has been almost impossible, as I hinted earlier, to get answers from the Environment Agency. Even when those answers are given they have often been wrong. Money, for instance, is alleged to have been allocated in my area, but no one can say if, when or how that money has been spent. I have to say that there has been a terrific row and the matter may well end up in court.

It is important that noble Lords understand the grave concern felt by many local people when an area that they well know, or at least believe, is a flood plain is marked down for house building. I do not quite buy the excuse that everywhere is a flood plain and that people should not worry because action is going to be taken to counter the inherent dangers. When a cloak of secrecy covers what that action might be, when it might be taken and how effective it might turn out to be, the answer is not known. In the past, people who have bought houses built on flood plains find that they cannot get insurance, so the houses are unsaleable because of mortgage difficulties. If subsequently those houses are flooded, their predicament is dire.

Frankly, I am shocked that the noble Lord, Lord Cameron of Dillington, feels that it is so important to get houses built that it does not matter whether they are constructed properly. Perhaps I am not reflecting what he really thinks, but it seems that when the dangers are known, it is only right and fair that people should know that something has been done about those difficulties. Without my amendment, so far as I can see, there is no compulsion whatever to inform the public about any investigations that have been made into the extent of the danger of flooding, what steps have been taken to deal with known hazards, what plans are in place for the future, and what assurances can be given to potential house purchasers. It is not unfair or unreasonable to ask that potential house purchasers should know about these things. If it leads to a delay in the plans for building, that may be unfortunate, but I know that I would not build a house if I was told nothing other than that the land was a flood plain and that, so far as I could see, nothing had been done to deal with the problems.

If there is a more important or reasonable or fair duty that this Bill should ensure, I do not know what it is. In the Queen’s Speech debate on this measure, I said that a Minister had announced in 2007 that houses could be built on flood plains so long as the electricity supply is connected into the first floor instead of the ground floor. I could hardly believe that that was thought to be sufficient to make a house safe, but apparently that is the information people were given—that it would be perfectly all right because the electricity would go in upstairs instead of downstairs. The lower level might be badly flooded, but never mind that, the electricity supply would go in on the higher level. I think people should know if that is all that is being done. The information will not cheer them very much, but at least they should know.

That is my view, and it is appropriate to remind the Committee that in 2007, out of 209 local authorities which replied to a survey on this matter, 56 said that they could not even find out through an official channel whether or not new houses, numbered and planned, were or were not to be built on flood plains. Fifty-six out of 209 not only did not know, but could not find out. I cannot believe that anyone in the Committee thinks that that is reasonable, because it is an impossible position to be in if you buy a house and are not told, but then find out later, that it stands on a flood plain.

We really cannot keep these vital details secret from the public. I refer again to the words of the noble Lord, Lord Smith of Finsbury, at Second Reading. He said that there was an absolute need—those were his exact words—to consult, work with and co-operate with local communities, which is different from local councils, in everything that is done on flood management. Those are the words from the man who currently heads the Environment Agency. I found them perfectly reasonable and I am sorry that there is not complete agreement in the Committee that they are such reasonable words. That duty cannot be enacted if those local communities—and, indeed, everyone—are not given full information to work with. I cannot see why that commitment should not already be in the Bill. I hope that the Government will accept, or at least think about, its inclusion.

My Lords, the noble Lord, Lord Cameron, has properly tabled amendments to allow us to debate regional flood and coastal committees. The Environment Agency is obliged to set up these committees, which will each cover a segment of England, yet the details of how it is to do so are rather left to the imagination. The noble Lord is therefore quite right to try to get some detail into the Bill and I support his amendments.

The regional committees must be concerned only with flood and water management and coastal erosion. That is what this Bill is about. It is not a local government Bill, so the committees must be based on regions, which makes sense from a water management point of view. My noble friend Lord Dixon-Smith should be happy that the vision that I gathered from the noble Lord, Lord Cameron, was a basin catchment arrangement and it was meant to represent a river system. The Government have tried and failed in the past to divide England into artificial regions for political purposes. The Minister knows as well as I do the unpopularity of that idea. It would be quite wrong for the Government to try to bring back any such attempt under a different guise.

That said, however, there is a very sensible case for organising regional groups on the basis set out by the noble Lord, Lord Cameron, if they are catchment-based and basin-based. It is the catchment areas that will determine what decisions need to be taken, which will have knock-on effects downstream and which therefore need to be co-ordinated. Amendment 53 is therefore a very practical suggestion, which is really refreshing. The noble Lord, Lord Greaves, with his Amendment 54, builds on that. If we have communities based on catchment areas, there is some possibility for some overlap as higher areas, for example, may have run-off in more than one direction. It therefore makes sense to have a mechanism in place to ensure co-operation. Co-operation is the name of the game in this Bill, be it in the hills and dales of Yorkshire or around the table of this Grand Committee. We are therefore sympathetic to what the noble Lord is proposing.

The noble Lord, Lord Cameron, has a second amendment in this group. Amendment 56 is very important and would make sure that membership of the flood committees set up by the Environment Agency is controlled by members of the local authorities that are affected and that there must be representation from the IDBs and farming and landowning organisations. As I have said before, the Bill has an admirable synchronicity to it, which balances the duties of the Environment Agency with those of local authorities. However, the Bill is silent on local authorities’ roles in the regional committees, except that, under Clause 24, the Minister may at some point make regulations about membership. That is not good enough. There ought to be democratic accountability to these committees, and it would be best if this was in the Bill. I hope the Minister will respond positively to the noble Lord’s amendment.

With her Amendment 56A, my noble friend Lady Knight of Collingtree has raised an important point that is of concern to many—namely, the construction of buildings on flood plains. I know that the Government have considered these matters, and I look forward to reassurance from the Minister. I live in an area in which building on the flood plain is the only alternative available, because 15 miles in any direction that is not sea is a flood plain. I am aware of the amount of liaison between planning authorities, local drainage boards and the Environment Agency to ensure that any development is properly flood-proofed from the beginning. I hope the Minister will reassure my noble friend on that point, and I am glad to add my support to the amendments proposed by the noble Lord, Lord Cameron.

My Lords, I am grateful to noble Lords who have participated in this debate on an important issue. The noble Lord, Lord Cameron, has shown commitment to the concept of the catchment-based committees. Indeed, he expressed that commitment the previous time we met in Committee, and I reassure him, as I did on that occasion, that we see a great deal of merit in that argument. The existing committees are, indeed, broadly based on catchment boundaries. However, it is important to take account of other factors such as coastal processes, as the committees are also charged with the responsibility of dealing with costal erosion.

There is also an obvious point to make about the practicalities on the ground. The existing administrative boundaries between England and Wales are bound to give rise to interesting questions about the concept of catchment areas. That is why we reject the concept as the basis of the Bill and the definition of the boundaries for the Bill while accepting entirely the noble Lord’s suggestion that they should be coterminous with catchment areas as far as possible, because that makes obvious sense in water management. The Environment Agency is well placed to take account of the various factors involved, but the danger of stating in the Bill that the catchment basis should be the fundamental concept behind all the committees is that it would be placed above all other considerations.

There is provision in the Bill for the Minister to make regulations on the procedure to be followed by the Environment Agency in determining regional boundaries, including determining the need for consultation. The good sense that the noble Lord, Lord Cameron, expresses will be reflected in many parts of the country, and the committees will follow that pattern, but I hope he will accept that that will not happen in all cases. The problem with putting the concept in such a prominent position in the Bill is that it would introduce an element of rigidity which the Government feel obliged to resist.

The noble Lord also introduced Amendment 56 on representatives on the regional flood and coastal committees. I reassure him that that is exactly in line with government thinking. We made it clear in Committee in the other place on 19 January that we intend to use the regulation-making powers in Clause 24 to ensure appropriate representation. I hear what he says about the interests of the drainage boards and of farmers needing to be represented on the committees, but we also made it clear in the other place, as he has done here, that we expect a local authority majority on the committees to meet the democratic principle which he emphasised in advocating his amendment.

The clause is drafted to allow a degree of flexibility to adapt to changing circumstances in the longer term and the precise numbers, composition and means of selection are yet to be decided. We will consider this further and we shall consult before coming to a conclusion. We agree with the aims of the noble Lord, Lord Cameron, who has expressed, in both amendments, positions to which the Government broadly subscribe and on which the Bill is based. However, I hope he will withdraw the amendments because we are concerned about the rigidity that they would bring to the Bill if they were incorporated.

As for Amendment 54, to which the noble Lord, Lord Greaves, spoke, we discussed those issues, to a certain extent, earlier in a preceding group. I emphasise, as I stated on that occasion, that significant levers are already in place to ensure good, robust co-ordination on the ground between the relevant bodies engaged in flood risk management. That is based largely on the duty to incorporate Clause 31, which we discussed at the previous Committee sitting, and of course the issue of the national strategy and guidance. The national overview from the Environment Agency, together with the regular meetings held between committee chairs, should provide exactly the opportunities emphasised by the noble Lord, Lord Greaves, for co-ordination between committee areas and resolving the cross-boundary issues. There is no doubt, as he has emphasised on several occasions, that water knows no bounds; however skilfully and accurately drawn the boundaries may be, there will still be the necessity for co-ordination and discussion across such boundaries.

I have much more difficulty with the proposal of the noble Baroness, Lady Knight, for a new clause which has a radical dimension. She was supported by the noble Lord, Lord Taylor, in broad terms, who then went on to describe a significant part of England as being on a flood plain. The brutal fact is that, in many areas, England is built on a large flood plain. One in six of our buildings is on an area which is defined as a flood plain and that is why we need this Bill. It is also why we have to address ourselves to the changing climate and to the threat posed to all those dwellings, and all those livelihoods, that are on flood plains. We cannot wish that situation away, and even if we accepted the clause proposed by the noble Baroness, it would be of little significance to the vast areas of the country—or to the beloved Lincolnshire of the noble Lord, Lord Taylor—that have to cope with these issues. That is why we have this Bill and these provisions are essential.

I entirely accept her concerns, as they are the concerns that underpin the necessity for the Bill. Of course we are concerned to respond to these challenges. I hope that she will appreciate that the Government’s Planning Policy Statement 25: Development and Flood Risk in England, and the equivalent technical advice note in Wales, will ensure that flood risk is properly assessed at all stages of the planning process, taking account of expert advice from the Environment Agency.

We could not begin to say that we are tackling the challenge presented by floods unless we have a clear concept of what needs to be done in planning for these issues. Both these planning statements promote a partnership approach, which is supported on all sides of the Committee, between the planning authorities, the Environment Agency and other relevant bodies to ensure that expertise is brought to bear on the crucial issue of planning applications. The noble Baroness’s points are reflected in greater anxiety about certain building developments. The Environment Agency expects to be consulted about all significant relevant planning applications. It is obliged to take into account flood risk. However, we cannot accept the new clause proposed by the noble Baroness.

Will the relevant information be made available to those who are considering purchasing houses? Of course I fully accept that the problem has to be dealt with; all I am asking is that people should not have to buy property when they do not know what the risks are, or what has been done about them.

My Lords, I emphasise in this respect the significant responsibility of the Environment Agency, which has access to the necessary information and produces an annual report. As the noble Baroness will know, the Committee has been at pains to make sure that that report is available. This is all part of the process of consultation. As regards the Environment Agency, I have briefing on the importance of publishing maps of flood risk areas. The floods directive, as transposed by the flood risk regulations, is due to be implemented over the next few years. It requires significant flood risk areas to be identified, as the noble Baroness has requested. It also requires maps to be drawn up and published showing those areas. I appreciate that the noble Baroness has emphasised very graphically the necessity of providing information in the public domain. I assure her that that is exactly the case. Therefore, I hope that she will feel able to withdraw her amendment.

The noble Lord, Lord Dixon-Smith, indicated that he did not think much of the clause. I hope that I have reassured him by my response to the noble Lords, Lord Cameron and Lord Taylor, and to the noble Baroness, Lady Knight, and that he will feel that the clause is critical to the overall strategy. The Government have thought through these issues and, given the contributions to this debate, we recognise how significant they are.

I thank noble Lords for the support I have received from all quarters for my amendments. I also thank the Minister for his acceptance of what I am trying to achieve. I accept that these bodies are slightly different from existing committees because they involve coastal defence, but I do not think that that should necessarily confuse where the boundaries should be, because they should come inland around catchments. Obviously, each river can involve more than one catchment, as the noble Lord, Lord Dixon-Smith, said. With a really big river such as the Thames or the Severn, it could involve the upper Severn or upper Thames and the lower Severn or lower Thames, and so on. It need not necessarily be a full catchment either. I was encouraged by the Minister's comments that as far as possible the committee boundaries will be coterminous with catchment boundaries. I thank him for that. I was also encouraged on the question of the local authority majority, when he said that this was exactly in line with government thinking and the principle had already been established or accepted in the other place.

As the noble Baroness, Lady Knight, mentioned it when speaking to her amendment, I should perhaps just say from the point of view of a planning applicant that, in my part of the world, every application that is put in has to be put before the Environment Agency. If it is any size at all and even if it is not on a flood plain—all waters end up on a flood plain at some point—you have to put in a flood relief scheme automatically and assess what is going on and the drainage. The Environment Agency goes into it in great detail. There is no question of any modern planning application going in without going through that process. I hope she will feel encouraged by that. I beg leave to withdraw the amendment.

Amendment 53 withdrawn.

Amendment 54 not moved.

Clause 22 agreed.

Clause 23 : Consultation and consent

Amendment 55 had been withdrawn from the Marshalled List.

Clause 23 agreed.

Clause 24 : Membership

Amendment 56 not moved.

Clause 24 agreed.

Clauses 25 and 26 agreed.

Amendment 56A

Tabled by

56A: After Clause 26, insert the following new Clause—

“Regional Flood and Coastal Committees: planning

(1) It shall be a function of each Regional Flood and Coastal Committee to assess the flooding risks and hazards associated with building within its region and to report annually to the Environment Agency on the risks and hazards it has identified.

(2) The Secretary of State shall, by regulations, establish a scheme to require each local planning authority to consult, and seek the agreement of, the Regional Flood and Coastal Committee for its area before granting consent to any applications for planning permission.

(3) If a Regional Flood and Coastal Committee is consulted by a local planning authority under subsection (2) about a planning application, the Regional Flood and Coastal Committee—

(a) must assess the flooding risks and hazards that may be associated with the building work described in the planning application to—(i) the building in question, and(ii) the region as a whole;(b) may, if it thinks necessary, make recommendations stipulating how the building work should be carried out to minimise the risks of flooding;(c) must, on the basis of the assessment made under paragraph (a), decide whether to grant consent for the planning application or not, stipulating any recommendations if necessary;(d) must send a copy of the assessment, decision and any recommendations to the local planning authority and the applicant. (4) In this section, “local planning authority” has the same meaning as in section 1 of the Town and Country Planning Act 1990.

(5) Regulations made under this section shall be made by statutory instrument and such an instrument may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

Amendment 56A not moved.

Clause 27 : Sustainable development

Amendment 57

Moved by

57: Clause 27, page 16, line 16, after “must” insert “, within one month of the day on which this section comes into force,”

My Lords, this amendment is an attempt to push the Minister into offering an interpretation of sustainable development. It is a notoriously nebulous concept, but if authorities are expected to comply with a duty to contribute towards sustainable development, it is only reasonable that we ask the Minister to spell out what it means.

The term can seem to mean whatever the user wants it to mean. It is therefore useful that the Minister is under an obligation to issue guidance on what it will mean in the context of this Bill. Given that there will likely be quite significant consequences on how authorities manage their obligations to comply with the requirement in this Bill, it is important for the Minister to explain to the Committee what he intends.

The Government were pressed on this point in another place, but we were not enlightened very much. On Second Reading, I challenged the Minister to say what he meant by sustainable development, as it would be good to get this definition in the Bill. It will not surprise the Minister that I am bringing forward this amendment. I beg to move.

My Lords, I am not surprised that the noble Lord has brought the issue up and nor will he be surprised that I have thought seriously about the points that he has made, because I have a great deal of sympathy with the intent behind this amendment.

The best that I can do for him—and I hope that he will appreciate it—is to make this important commitment. We will not bring this provision into force until guidance can be issued alongside the commencement of the sustainable development duty. I hope that that commitment meets the noble Earl’s objectives.

My Lords, I am not surprised that the Minister has not risen to my challenge to give a quotable definition of what the Government mean in this instance by sustainable development. The concept is not easy and still less understood. Sustainable development is a policy approach that has gained a lot of international popularity in recent years. What on earth does it mean? The concept of sustainable development has several critics. Some criticise the term by saying that it is too vague. The philosopher Luc Ferry said:

“I know that this term is obligatory but I find it also absurd, or rather so vague that it says nothing”.

There is no doubt that the word “sustainable” has been used in too many situations, and that “sustainability” is one of those terms that confuse a lot of people. One hears about sustainable development, sustainable growth, sustainable economics, sustainable societies, sustainable agriculture and so on. Everything must be sustainable, but what on earth does that mean? It is certainly interpreted differently in different circumstances.

When I was born nearly 60 years ago, the world's population was just under 2.5 billion. It is now just over 7 billion. That is an increase in my lifetime of nearly 5 billion people. They all need somewhere to live. They need water, food and jobs. In my lifetime, cities, towns and villages all over the world have had to expand into the natural environment to accommodate this growth. In Britain, we need to build an extra 3 million homes in order to accommodate our population, which is set to increase by a third over the next 40 years.

When I was vice-chairman of our planning committee in Norfolk, we were told that all future development had to be sustainable. This was a nice concept, but is it achievable as more and more houses are being built on greenfield sites? These fields can never be replenished or returned to their natural state. Are the materials used in the building industry sustainable? Probably not. We import 90 per cent of our timber, and we all know that some of the forests cut down will never be replaced. One has only to look at the Amazon and Africa to see this. I appreciate that many forests are replanted, but by no means all are. As for sustainable development in planning, it is a nice idea but almost impossible to achieve.

We all know that an unsustainable situation occurs when natural resources are used up faster than they can be replenished. Presumably a sustainable situation occurs when human activity uses nature's resources only at a rate at which they can be replenished. That is not a bad definition, but I prefer the one given by the UN Brundtland report of 1987, which said that sustainable development is,

“development which meets the needs of the present without compromising the ability of future generations to meet their own needs”.

That is my chosen definition of sustainable development. However, I look forward with interest to the Government's definition, and to seeing how it will apply in this instance. I have no doubt that the Government's definition will be completely different from mine. I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Amendment 58 not moved.

Clause 27 agreed.

Clause 28 agreed.

Clause 29 : Restructuring

Amendment 59

Moved by

59: Clause 29, page 17, line 40, leave out “or another enactment”

My Lords, I accept that Clause 29 provides Ministers with the powers necessary to make orders to reassign the flood and coastal erosion risk management responsibilities of lead local flood authorities, district councils and internal drainage boards. The level of flexibility allowed under the clause for meeting future eventualities is not something with which I have a great deal of trouble. In the event that the Minister makes such an order, it will have to be laid before Parliament in order to allow this place and another to examine whether any restructuring really needs to take place. That is one of the few instances in the Bill where such a parliamentary precaution has been observed, although the Minister has been diligently moving amendments to that effect since the pointed report of your Lordships’ Delegated Powers and Regulatory Reform Committee was published.

However, the choice of drafting in the clause, specifically subsection (3), is worrying. The Minister may make an order to amend not just this Bill but any Act. There are no qualifications that the Act be dependent, linked or in any way related to this Bill. While I very much hope that this is an example of loose drafting, I would find it decidedly odd if the noble Lord was content to have the power to amend, for example, the Criminal Justice and Immigration Act or the Education and Skills Act. I am sure that the noble Lord will reassure us on this point, but it would be irresponsible of me not to flag up this apparent error. I beg to move.

My Lords, when I put down the question as to whether Clause 29 should stand part of the Bill, I had a vision that it would take a lot of debate and that I would wax lyrical and at length. In view of the time and the limited amount of time we have in which to get through the rest of the amendments, I do not now intend to speak on this proposal. I hope that that will help us to discuss some of the not necessarily more important but clearer and more practical things later.

I am grateful to the noble Lord, Lord Greaves, for that comment. I hope that I can repay him with the accuracy of my response to the amendment tabled by the noble Lord, Lord Taylor. I appreciate the fact that the noble Lords based their point on an observation noted in the report from the Delegated Powers and Regulatory Reform Committee. As we explained in our letter of 11 March, in response to that report, we consider that the application of this power to future legislation is justified by the need, as recommended by Sir Michael Pitt’s review into the summer 2007 floods, to consolidate the present Bill with existing flood and coastal erosion legislation and any further legislation not included in this Bill but identified in the draft Bill which we published last year.

The power in Clause 29 would also need to apply to any subsequent floods and/or consolidation legislation. It is important to note that the power could be used only within the context of restructuring as set out in Clause 29. I want to give the obvious assurance to the noble Lord, Lord Taylor, who is making my hair stand on end with his concept of how far these powers might go, that it could not be used to amend Acts for a purpose that has nothing at all to do with flood or coastal erosion risk management or flood or coastal erosion risk management authorities.

It is also necessary to have this power since future legislation may create bodies that should be integrated into the flood or coastal erosion risk management institutional framework. This need may not be foreseeable at the time the legislation is passed, so the power to do so at a later time without having to wait for primary legislation again would ensure the crucial future flexibility which we consider to be necessary to allow the Government of the day to be adaptive and responsive in ensuring all the relevant bodies the best place to tackle flood or coastal erosion risk.

The provision, of course, makes any use of the power to transfer robust responsibilities subject to a duty to consult the bodies affected, as will be readily appreciated by all Members of the Committee, and to the affirmative procedure in Parliament. I hope I have assured the noble Lord that we are concerned about the Delegated Powers and Regulatory Reform Committee report. Our letters make clear the framework within which we are operating. It is related purely to the objectives of the Bill and is an attempt at future-proofing so that even quite minor changes for the authorities involved would not force the Government of the day to have to go back to primary legislation to continue the objectives of this legislation.

I thank the Minister for that explanation. I had no wish to alarm him. On coming to this place, I learnt of Henry VIII powers; I had thought it was beyond even the power of that extremely powerful king to amend any other enactments. It might have been easier if it had said “related to the Bill” and then it would have been quite clear that this power applies to the family of flood and water legislation. That might have simplified matters. I accept the Minister's reassurance on the matter and I understand the facility that it brings to the Government. I beg leave to withdraw the amendment.

Amendment 59 withdrawn.

Clause 29 agreed.

Clause 30 agreed.

Schedule 1 : Risk Management: Designation of Features

Amendment 60

Moved by

60: Schedule 1, page 36, line 7, leave out “affects” and insert “is likely to have a material effect on”

Clause 30, which gives effect to Schedule 1, allows a designating authority to designate a feature integral to the management of flood risk or coastal erosion, which means that the owner would not be able to change it without obtaining consent from the designating authority. The first of our amendments, Amendment 60, is perhaps a more general probing amendment than Amendment 61, which was inspired by representations from Network Rail. Amendment 60 would mean that, rather than simply having an effect on risk management, it would need to have a material effect.

I have tabled this amendment because, in theory, almost anything could have an effect on flood risk and therefore make the power extremely, if not unimaginably, wide. For example, almost every pipe, nut and bolt owned by a water company might affect flood risk in some way, as might a paved-over driveway at a private house. I am sure that the effect of encompassing almost everything one can think of is not what those who drafted the Bill had in mind. Clarification from the Government would be welcome.

Amendment 61 came from Network Rail, which has a specific concern about the power of designation on its assets, which by and large tend to form large landscape-changing features. This amendment would ensure that infrastructure such as railway assets which are not designed to act as flood defences are designated as such only if that does not undermine their primary purpose, such as the safe, efficient and reliable running of the railway. I am thinking, for example, about embankments. Network Rail has made representations to us regarding its considerable concerns about Clause 30 and Schedule 1 on designation. I am sure that the organisation would appreciate a reassurance from the Minister that railway infrastructure is designed, constructed and maintained solely for operating a railway, thereby fulfilling Network Rail’s statutory licence obligations as the owner and operator of the network.

The assets concerned have not necessarily been constructed using the appropriate material for flood defence or coastal erosion prevention purposes and therefore are unlikely to be robust enough to act as permanent flood defences or erosion control features. Similarly, coastal and estuarine railways often run on hard or soft structures designed purely to carry rail traffic and protect the railway itself from water damage. It would therefore be inappropriate to designate railway infrastructure as flood defences.

In common with the issues I raised under Amendment 60, we would also be concerned if owners of private property were to find themselves at a disadvantage because of these powers, which would require them to get permission from the designating authority when altering, removing or replacing assets. Designating authorities will be given a broad range of responsibilities and powers over assets that they designate, including emergency powers and powers of entry. We therefore seek assurances from the Government that the powers given to responsible authorities over any railway assets that they designate will not supersede Network Rail’s statutory powers and duties as owner and operator of the rail network, or compromise the efficacy of the primary purpose of the asset, whatever it may be. The powers of responsible authorities under the Bill should be exercised only with the consent of Network Rail and should be consistent with the safe, efficient and reliable running of the railway. I beg to move.

My Lords, I have two amendments in this group, which overlap to some extent with the amendments in the name of the noble Lord, Lord Taylor, and certainly overlap with those tabled by the noble Lord, Lord Cameron of Dillington. Indeed, my second amendment is intended to be complementary to the second amendment tabled by the noble Lord, Lord Cameron.

I am not sure that the basic issue is quite as radical as the noble Lord, Lord Taylor, suggests. Some features to be designated will have been provided for a quite different purpose—what the noble Lord described as the primary purpose. For example, there are railway embankments—or road and highway embankments, which exist to a much larger extent than railway embankments in many parts of the country—buildings, which are there for their purpose; walls which have been provided for the purpose of enclosing a garden, a factory, or whatever. The fact that they may also have an important effect on drainage if there is a flood cannot be denied. Therefore, they must be designated.

The fundamental question is to what extent this designation will affect the ordinary day-to-day, week-by-week, year-by-year management of those features for what the noble Lord, Lord Taylor, calls their primary purpose. To what extent will people be inhibited from doing the normal things they would do on their land or in their buildings—repairing a wall if it falls down, or ploughing agricultural land if the farmer needs to; and, for railway embankments, normal maintenance or repair if there is a slip.

That kind of activity clearly has to continue. The concern of all sorts of different interests, from the NFU to Network Rail, as well as lots of other bodies, is that they have to ask the permission of the Environment Agency, the local authority or whoever the designating authority is before they can do any normal work, maintenance or repair on these features. They are concerned that the process of seeking permission will be obstructive, bureaucratic or will cause delays. That will clearly create a problem for the owners and operators of these features. That is the fundamental point.

What is required, and which I think the second amendment in the name of the noble Lord, Lord Cameron of Dillington, also suggests, is a statement, agreement or understanding of what normal activities can take place without having to ask permission. That statement or agreement should be made when the feature or the asset is designated. Owners and users will then know what they can do without having to go back to the designating authority. Will the Minister give that commitment in his response to this short debate? It is an important issue that has caused a lot of concern, and the Minister needs to set it out very clearly indeed so that the way forward is clearly understood.

I hope that that makes sense. This has to be done at the stage of designation. Clearly, if unforeseen things happen, further permission may be required. The owner of an asset might propose a radical change that affects potential flooding in the drainage system. That is perfectly reasonable, but it is not perfectly reasonable for people to have to ask for permission time and again for normal operational purposes. I hope the Minister will be able to reassure us on these matters.

I agree with all the amendments in this grouping. They are similar to a degree and the Government are clearly spoilt for choice as to what combination of them to accept.

My Amendment 63 is slightly different from the others. It refers back to a point I made at Second Reading and which the noble Lord, Lord Taylor, has already touched on: the question of balancing risk. There is always a tendency for experts to see risk in their field wherever they look, and, if they can insure against that risk at no cost to themselves, they will take the route of least resistance and the least risk. I, as a farmer, sometimes find myself in that situation. You go through the risks of your business with an insurance broker and say, “Wouldn’t it be nice to be covered in case of fire, disease and any other accident?”. You can even insure yourself against the weather. Would it not be nice to say yes to them all and to be covered for every eventuality? Yes, until you realise that unless you are prepared to take on some of the risk yourself, even if only in the form of a first loss or an excess, the cost to your business is so great that it would probably be in danger of failing. You have to exercise restraint. Let us imagine someone else being permitted to stipulate that no risk at all was allowed, and that furthermore your business would have to pay for the cost of mitigating the wish to avoid all risk. Without some sort of balance, the situation is unfair.

In real life, the situation is even worse. It is exacerbated by the fact that you get single focus organisations and single focus people working for them. As I indicated at Second Reading, anyone whose life is based on protecting badgers, bats, newts, late Victorian apertures or whatever it might be, presumes that their specialty is more important than any other consideration. Indeed—this is where I come to the point of my amendment—they do not even allow any other consideration to enter their minds or interfere with their risk averse, single focus mission. Thus, my simple amendment seeks to ensure that they must at least consider other factors. Of course, if any real flood risk is involved, they should refuse consent for the alteration or whatever else is applied for to the designated object, but it is important that they weigh up the cost of their refusal when the flood risk is negligible or de minimis.

I was interested to note that the Government have recognised my point in Clause 38(3) on page 24 when it comes to work being carried out by the Environment Agency. Indeed, if I had noticed that clause before, I would have used the same wording in my amendment, which I tabled two weeks ago. Clause 38(3) states:

“Condition 2 is that the Agency considers the benefits of the work will outweigh the harmful consequences for matters listed in section 2(4)(a) to (d)”.

Clause 2(4)(a) to (d) states:

“In each case the potential harmful consequences to be considered in assessing risk include, in particular, consequences for—

(a) human health,

(b) the social and economic welfare of individuals and communities,

(c) infrastructure, and

(d) the environment (including cultural heritage)”.

So it is all there. I would hope that these conditions could apply equally to consent for work being carried out by others as to work being carried out by the Environment Agency.

On Amendment 64, I repeat what the noble Lord, Lord Greaves, has said: it is intended to be helpful. This part of the Bill seems to be all about what cannot be done in a catchment. I feel that it omits consideration of what can be done. Is the owner allowed to continue to mow the grass—obviously, I look at this from an agricultural perspective—on the island in the river? Is he allowed to harvest or thin the trees planted on the bank, or are the grass and the trees vital for slowing down flood waters? Is it possible to repair or point up walls or other manmade constructions? To what extent is it possible to carry out constructions to prevent bank erosion when property is at stake, and can these constructions be in concrete or do you have to spile with woven withies? It is important that ongoing management by riparian owners can continue to be carried out with confidence. I look forward to the Minister’s reflections on these matters.

My Lords, before the Minister responds to that very powerful contribution, I would like to add my pennyworth to Amendment 63 in the name of the noble Lord, Lord Cameron. He has drawn very careful and important attention to the potentially draconian powers that the responsible authority holds. The Bill is worded such that it suggests that the authority may refuse to give consent “only on the ground” that the proposal,

“would affect a flood risk or a coastal erosion risk”.

But if you think about it, just about anything will have an impact on coastal erosion or on flood risk. Therefore, to get an element of scale into this, it is of fundamental importance to demonstrate that overriding considerations might also be taken into account. I hope that the Minister will respond favourably to Amendment 63 in the name of the noble Lord, Lord Cameron.

My Lords, I thank all noble Lords who have spoken to this important group of amendments. I can reassure each of them. As regards Amendment 60 to paragraph 4 in the name of the noble Lord, Lord Taylor, this paragraph prescribes the conditions which must be satisfied before a structure or feature may be designated. The noble Lord has proposed replacing “affects” with the phrase,

“is likely to have a material effect on”.

The meaning of “affects” is that there is a material effect on flood risk or coastal erosion risk. If there is no tangible effect, a designation would be inappropriate. Amendment 61 would ensure that a designation cannot interfere with a normal operation of infrastructure. He spoke at length about the representations that Network Rail has made in respect of this part of the Bill. I am happy to provide the same clarification and reassurance that has been given to Network Rail, to British Waterways and to Ofwat. A designation will not interfere with the operation of infrastructure; nor will it prevent maintenance works to keep the feature in the state that it was in at the time of designation. A designation will not impose a maintenance duty, nor require a higher standard of maintenance than already exists. The infrastructure provider will not become responsible for managing the risk: that responsibility will rest with risk management authorities.

In the past month, officials from the department have met representatives from Network Rail, who raised these issues. We reassured them about the intent and effect of the Bill. When this was explained to them, they said that they were content with what officials had said, and that they accepted that the operation of the network would not be adversely affected by the provision.

Amendment 63, tabled by the noble Lord, Lord Cameron, is intended to protect an individual's interests. This amendment is unnecessary. Paragraph 6(5) states that the authority may refuse consent only if a flood risk or coastal erosion risk is affected. This is not the same as stating that it must refuse consent if a risk is affected. When the provision was discussed in the other place on 29 January, the Minister made it clear that consent cannot be unreasonably withheld. The only circumstance in which the authority’s discretion is limited is where the proposal has no effect on flood risk or coastal erosion risk. Where this is the case, the authority must give consent. The authority will still have complete freedom to consent to a change, or even to cancel a designation, if it recognises that there is a wider gain to be made, or a different approach that is just as good. Risk management authorities are expert at appraising and evaluating options and wider considerations. All relevant factors may be taken into account, be they social, economic or environmental. Authorities will be alert to what should be considered on a case-by-case basis.

The noble Lord, Lord Cameron, also tabled Amendment 64, which would include in a provisional designation notice the things that an owner of the designated feature may do without needing consent. I have answered that point, and my answer also applies to the amendments tabled by the noble Lord, Lord Greaves. Those amendments are also unnecessary. I assure the Committee that a designation will not prevent routine operation or maintenance of a structure or feature. There is scope for regulation under paragraph 16 of Schedule 1, which can require that additional information is provided as part of a designation. We will consider the extent to which this can address the routine maintenance that might be carried out without requiring consent. Only measures that change the state of a feature from what it was when it was designated will require a consent. That consent must be given unless flood or coastal erosion risk is affected. Even if it is affected, the authority still has to act reasonably and can grant consent if it thinks that other considerations outweigh the flood or coastal erosion risk.

Government Amendment 65A is also in this group. This simply refers to the new name for the Lands Tribunal. It is now part of the Upper Tribunal. No other changes are brought about by the amendment, which I shall move formally at the appropriate time. I commend that amendment to the Committee, and I hope that the noble Lord will withdraw his.

Before he does, perhaps I may refer to the proposals that the noble Lord, Lord Cameron, and I are suggesting, which concern making it clear to the owner and operator of an asset at the time of designation what they can and cannot do. Will the Government consider making appropriate regulations on that?

That is a slightly disappointing response in that it is a bit weak that the Government will “consider” doing that. I hope that they will think hard about the necessity of that. The problem is that if it is not made absolutely clear for people, it will result in a lot of hassle. I am sure that the Government do not want that. However, I am grateful for the provision as far as it goes.

I hope that the Government will take on board the advice of the noble Lord, Lord Greaves, because I am sure that they do not want any hassle. I thank all noble Lords who have participated in this debate, in which they raised a lot of interesting elements of this clause. I am grateful for the Minister’s response. It is good to have a reassurance that Network Rail is happy that its interests have been taken care of, but I emphasise that the noble Lords, Lord Cameron and Lord Greaves, have raised some valid points. In day-to-day living with a designated feature, owners need to know that they are not in danger of inadvertently finding themselves creating an infraction of the designation. I hope that the Minister will ensure that that is made clear at the time of the designation. I beg leave to withdraw the amendment.

Amendment 60 withdrawn.

Amendments 61 and 62 not moved.

Amendment 63

Tabled by

63: Schedule 1, page 36, line 37, at end insert “, and that risk outweighs the social, economic or environmental gain implicit in the granting of consent”

I thank the Minister for his reply, but I have to say that in normal circumstances I would not be satisfied with it and I think I would wish to return to the issue at a later stage. The Bill provides that the authority may consider aspects other than those connected to any flood risk, but I want there to be a duty to do so. The Minister’s words did not fully satisfy me, but since there is not going to be another stage of the Bill, I shall not press the matter.

I believe that the noble Lord, Lord Cameron, should move his amendment if he subsequently wishes to withdraw it. Perhaps he would first like to move his amendment, then we can consider the response.

Amendment 63 not moved.

Amendments 64 and 65 not moved.

Amendment 65A

Moved by

65A: Schedule 1, page 39, line 36, leave out “Lands Tribunal” and insert “Upper Tribunal”

Amendment 65A agreed.

Amendment 66 not moved.

Amendment 67

Moved by

67: Schedule 1, page 40, line 15, at end insert—

“( ) The first sets of regulations may not be made unless a draft has been laid before and approved by resolution of—

(a) each House of Parliament, in the case of the first regulations made by the Secretary of State, and(b) the National Assembly for Wales, in the case of the first regulations made by the Welsh Ministers.”

Amendment 67 agreed.

Schedule 1, as amended, agreed.

Clause 31 agreed.

Schedule 2 agreed.

Clause 32 agreed.

Amendment 68

Moved by

68: After Clause 32, insert the following new Clause—

“Ownership and maintenance of sustainable urban drainage systems

The Secretary of State shall by regulations specify which body has to be responsible for—

(a) the ownership, and(b) maintenance,of sustainable urban drainage systems.”

We move into somewhat different territory here. This group of amendments concerns sustainable urban drainage. We are happy enough with the principle of agreed standards for sustainable drainage systems. However, I have tabled several amendments that seek clarification of how they will operate in practice. The Local Government Association in particular has made its concerns known that local authorities will end up bearing too much of the cost. I understand that the Government’s plan is that local authorities’ adoption and maintenance of sustainable urban drainage systems—the Minister has difficulty in defining this, but I have a little difficulty saying it; I think I will talk about SUDS—will be funded in part through the transfer of private sewers to water and sewerage companies, alleviating local authorities from the responsibility for investigating and dealing with problems.

The LGA rejects Defra’s assumptions about the costs of private sewers. It explains that they are based on seven year-old data garnered from only 12 per cent of local authorities, and that they therefore create fundamental weaknesses in the impact assessments and need urgently to be reassessed. Although the transfer of private sewers to water companies may result in some savings for councils, those savings may amount to only a fraction of the savings suggested by Defra. Private sewers are the responsibility of private owners, and most of the smaller local authorities do not have large budgets or a significant number of staff to deal with them. We have therefore suggested in Amendment 68 that the Minister should not only set out clearly who will have responsibility for maintaining what systems but consult stakeholders to determine more accurately the costs that are likely to accrue.

Amendment 78, which is also in this group, would put in place a sustainable funding system for SUDS before the Bill commences in full. Defra has thus far not confirmed how many people will be charged for SUDS in the long term. Some may view this as unfair and something that could even threaten the success of SUDS, as local authorities cannot be expected to take them if they do not know how they will be funded in future. The LGA has proposed a model for funding SUDS that will ensure that councils can be confident, when taking on the maintenance of SUDS, that their work will be sufficiently funded in the long term.

The LGA’s concern with the Government’s preferred model is that local authorities are paid to deliver this function from grants, taxation or private sewer transfer savings. That is not sustainable; savings from private sewers will run out after eight years. It sees that as unfair. Taxpayers draining surface water to sewers would subsidise customers who drain surface water into SUDS. In addition, it is not a secure and expanding funding stream, so it does not provide incentives to authorities to expand the number of SUDS and might encourage the cheapest rather than the most appropriate, innovative or highest quality solution.

Should SUDS maintenance be the responsibility of water and sewerage companies? Would that undermine the core agenda for flood risk management? The point of that agenda is surely to ensure that lead local authorities develop the local strategy, are responsible for this function and can be fully held to account through the scrutiny process. As a key part of the local management of surface water, giving water and sewerage companies responsibility over SUDS could undermine local authorities’ ability to deliver on a range of agendas.

The Bill allows for local authorities to delegate the maintenance of SUDS to other operating authorities, including water and sewerage companies where appropriate. This offers choice without taking away the maintenance responsibility and allows authorities to delegate this function as a short or long-term measure. As the Minister realises, all our amendments in Grand Committee have to be probing, and we have tabled these amendments to elicit from him a clear guide as to how SUDS will work in practice. It would most helpful to have that on the record, and I beg to move.

I have a quick probing question of my own following on from my earlier comment. In my area, there is a stated intention to build some thousands of houses. The local environment agency has said that it cannot be certain to provide the water, drainage and sewerage for those houses. Would the houses still go ahead or not?

My Lords, I have five amendments in this group. I very much welcome the amendments that the Conservatives have tabled as, as the noble Lord, Lord Taylor said, probing amendments to establish how the SUDS will work.

Of my amendments, Amendment 77 is consequential on Amendment 70. The other three are perhaps of lesser consequence, so I will deal with them first.

Amendment 74 would change the definition of construction work with drainage implications. That is fundamental to the subsystem, because Paragraph 7(1) states:

“Construction work which has drainage implications may not be commenced unless a drainage system for the work has been approved by the approving body”.

That is the definition of which work requires a SUDS. Paragraph 7(2)(b) states:

“the construction work has drainage implications if the building or structure will affect the ability of land to absorb rainwater”.

I have spent quite a lot of time thinking about that. The ability to absorb rainwater is one thing, but the practical consequences of the development are slightly different. I therefore want to add at the end the words,

“or increase, decrease or divert the surface water leaving the site”,

which are clearly the practical changes to the drainage system.

My second amendment is to probe the exceptions to those types of development or project that will require a drainage approval—in other words, a SUDS. Paragraph 7(4) states:

“The Minister may by order”,

provide exceptions to subsection (1), which,

“provide that a specified class of work is to be or is not to be treated as construction work”.

I want to add to the end of that the words,

“including provisions for the application of de minimis rules”.

That is a means of probing the Minister on just how big developments will have to be before they require a SUDS. Will there be a gradation where larger developments need a SUDS but smaller developments do not? In particular, during the transitional period, is it intended to start with the big ones and gradually move down? If so, where is the floor as to how low it will move? Will there be a permanent system under which small developments that require planning permission—perhaps the building of one house or of a garden shed—do not require a SUDS, or is it intended that, eventually, all development will require a SUDS?

Finally, under Amendment 76 I want to change paragraph 8(3). At the moment, it states:

“If the construction work requires planning permission, the application for approval under paragraph 7 may be … made in accordance with paragraph 9”,

which is a free-standing application to the SUDS authority. Clearly, here I am especially concerned with two-tier authorities, where the SUDS authority will be the county council and the planning authority will be the district council. Or, under paragraph 8(3), it may be,

“combined with the application for planning permission in accordance with paragraph 10”.

In other words, it may be made along with the planning application to the district council, the planning authority.

If there are two applications, one for a SUDS application and one for a planning application, referring to the same development, they should always be made together to the planning authority, which will pass the SUDS part to the county council. That would be sensible. The documentation we have had from the Government as to how the process will work in practice suggests that that is exactly what should happen. Freestanding applications will come if they are made separately from a planning application and the process does not require planning permission. If it already has planning permission but needs a SUDS in the future, that would go straight to the county council. But where it is being made at the same time as a planning application in relation to the same development as the planning application, they should be made together. That is what the Government are saying about how the system will work. Therefore, I do not understand why the legislation says something different. I hope that that is clear.

The substantive, important amendment in this group is Amendment 70, which is linked to Amendment 77. This provision would make the SUDS approval body, which will determine the SUDS application, the local planning authority, as defined in Section 11B of the Town and Country Planning Act 1990 and not the county council for the area. Clearly, a choice has to be made.

The lead authority for flooding and flood risk management is the county council in a two-tier area. The planning authority is the district council. Whatever system there is, the county council and the district council will have to work together, just as they do at the moment, for example, on planning applications that have highways implications, where the county council is the highways authority but the district council is the planning authority.

The Local Government Association does not have a vested interest in this. Sometimes when some of us put forward Local Government Association amendments, it is because it is saying that the cost will be too great or that it wants more resources or more powers for local government. This is not a vested interest argument in favour of local government by the LGA. It is the LGA, knowing how local government works and representing all kinds of local government—unitaries, counties and districts—saying that in two-tier areas the Government have got it wrong. I agree with that.

My amendment would mean that the approval process for SUDS sits at the district level in two-tier areas ensuring that no unnecessary bureaucratic burdens are added to the planning system. By placing the approvals process for SUDS at the county level in two-tier areas the Government will create an unnecessary level of bureaucracy, complexity, higher costs, because two separate applications will have to be dealt with and processed, and delays. As far as I can see there is no doubt about that.

In many areas it will work because local authorities are very good at coping with the systems foisted on them by central government, quangos and all sorts of people. You have to get around them and you have to make them work as best you can. But that is not a sensible argument for doing this. The SUDS approval system should work in the same way as issues related to highways.

In Committee in the House of Commons, the Minister said that placing the SUDS approval and adoption responsibilities on the county local authorities level fits well alongside their existing responsibilities for highways maintenance. But that is not how the system works at the moment. In two-tier areas, the district planning authority makes the planning decisions, including highways, but consults with the county to ensure that highways issues are properly addressed. The same system should be used for the approval of SUDS. Local knowledge and a detailed understanding of the planning process are vital if the system is to be successful in practice.

When I look at SUDS, and the regulations that will be produced to tell local authorities how to deal with them, I see that many regulations will not be a matter of policy, but will be like building regulations, so the question will be whether the application fits the rules and regulations. There will be some scope for flexibility, but nothing like the scope in ordinary planning regulations. The application that comes in will either fit the criteria that the Government are putting forward or will not. When I met some of the Bill team on Monday, it was clear to me from what they said that the SUDS regulations will come in a pretty thick document. The question in each case will be whether or not they apply. That is the reason for making the bureaucracy involved with the application as simple as possible.

The Government's proposal will complicate the system. In some areas, it will cause real problems. People do not understand how much complexity there will be. Certainly many people who will have to apply for SUDS do not understand the complexity that this will introduce to the regulatory system dealing with development. The simpler this can be kept, the better. The obvious thing to do is to make the planning authorities also the approval authorities for sustainable drainage systems; and to make absolutely certain that the rules and regulations that they apply are the right ones, laid down by central government, and that the proper consultations take place with the lead flood and risk management authority.

I hope that the Government will look at this again. It is an issue that we would have wanted to come back to on Report. We will not be able to, and unfortunately I am certain that the Government will not accept my amendment. However, when the legislation comes in, this matter will have to be looked at closely, and may require amendment and change.

My Lords, I will speak to Amendment 70. I commend the Government for bringing forward the SUDS legislation. We have waited for it for a very long time, and it is crucial to water and flood risk management. Alas, I disagree with the amendment of the noble Lord, Lord Greaves. The importance of SUDS to flood risk management and to drainage management generally requires that the body charged with local flood risk management should make approvals for SUDS. The thinking about local flood risk management and strategy must embrace SUDS as an integral component, and that would not be possible if the approval authority were the local planning authority.

I understand that many of the ways in which SUDS will be dealt with are similar to other planning issues. However, if we are going to get an integrated approach to flood risk management and drainage, the integration must happen at the level of the county and the unitary local authority, which will take a strategic view. We also run the risk of defeating one of the objects of the Bill, which is to bring clarity of responsibility and co-ordination. Having all the decision-making vested in one authority for all the factors that come together in planning for local flood risk management is incredibly important.

I turn to Amendment 78. I know that there has been detailed arm-wrestling between the Government and the LGA, and the interests that the LGA represents, on the issue of funding. However, we have now got to a stage where we have seminal legislation on SUDS that is long overdue. I have been talking about the need for SUDS legislation for 15 years, if not 20, and I am getting old. I urge everyone to have the confidence that the range of options available for funding SUDS is sufficiently robust, whichever option is eventually chosen, and that we should simply move on. Day on day, we are losing time and developments are coming forward that do not have sustainable drainage associated with them and they are simply causing more and more flooding and drainage problems which we will have to remedy very rapidly in the face of climate change.

I was not going to speak, but as this is likely to be our last day in Committee on the Bill, I would like to support the amendments of my noble friends, particularly on costs. The noble Baroness, Lady Young of Old Scone, encourages us to push ahead regardless, and thinks that there is sufficient money around. We find ourselves in a slightly open-ended position. Defra has suggested that it will be time-limited and that the whole issue will need to be revisited in eight years’ time. Surely, we should not just address the short term. We all agree that the sooner SUDS is in place the better—but it would be irresponsible of this Committee not to consider what my noble friend has moved, and question how this will be funded, both in the first instance and in the longer term. That is what made me rise to my feet.

The local government briefing to us all stated that authorities are concerned about funding. With ever-increasing costs and many different demands on local government provisions, it is important that this vital new scheme, which places great responsibilities and costs on local authorities, should be clarified, and not just in the short term. I hope that the Minister will be able to take us further down that path, rather than saying that it will be five or eight years, because it would be very unsatisfactory to leave it in its current position.

I am grateful to all noble Lords who have spoken in this significant debate. I am grateful to the noble Lord, Lord Taylor, for indicating that we should all use the abbreviation SUDS. I, too, was wrestling with the problem of coping with that important concept. I will go through each amendment in turn because of their importance and, at the same time, I hope to answer the questions addressed to me.

Amendment 68 would require the Minister to specify, by regulations, which body should take responsibility for the ownership and maintenance of SUDS. Adoption does not need to confer ownership, as the amendment seems to imply, but simply a responsibility for maintenance, which is different. Many SUDS features will be dual-function spaces; for example, ponds in parks, or permeable paving in the courtyards and car parks of blocks of flats. Therefore, conferring ownership is neither necessary nor appropriate. We are concerned about responsibility for maintenance of the system.

I turn to the question of who should maintain SUDS. Subject to certain exemptions set out clearly in the Bill, primarily concerning roads, the responsibility will be that of the SUDS approving bodies, where the SUDS serve more than one property. The Bill is clear on this point. Paragraph 6 of Schedule 3 already specifically places the responsibilities and duties of the SUDS approving body, the SAB, on unitary authorities and county councils. I shall come to the reservations that the noble Lord, Lord Greaves, has on that in a moment. Those responsibilities include both the approval of surface water drainage systems in new developments and redevelopments, and the duty to maintain them where they serve more than one property.

We believe that a fragmented approach to the approval, adoption and maintenance of SUDS should be avoided—that is an important principle of the Bill—and we strongly believe that the ultimate responsibility for both approving SUDS and for adopting and maintaining them should reside with one body. This will ensure that the SUDS are well designed and constructed in the first place, and therefore will function effectively and can be maintained efficiently. The noble Lord, Lord Greaves, can see where the Government's thinking is going.

As we said in the other place, there is nothing to prevent the SUDS approving body transferring its functions to another body by agreement, although the SUDS approving body will retain responsibility and liability. We already know that some two-tier local authorities are considering placing some SAB functions with districts where that is the best local arrangement for the area. Schedule 3(6) also allows a Minister by order to appoint a different body as an improvement body for a specified area. So there is a degree of flexibility, which I hope that noble Lords will appreciate.

Amendment 68 brought to light for the Government an interesting technical point which we seek to address in the government amendments included in this group, to which I shall speak now and which I will move in due course. Paragraph 6 of Schedule 3 appears to be somewhat less flexible than is desirable. The provision was intended to allow for both the national transfer of the approving body functions and the transfer of functions on an area-by-area basis. On review, we felt that that needed to be clarified. That is why we tabled Amendment 71, which allows a Minister to appoint a new approving body,

“in all areas or in one or more specified areas”.

That introduces an element of flexibility which accords with some of the arguments presented this evening.

In addition, we want to ensure that the power to transfer specific approving body functions is as flexible as similar powers in the Bill, such as the power to reallocate flood risk responsibility, which is covered under Clause 29. Taking that clause as an example, although flood risk responsibilities are clearly set out in the Bill, it nevertheless includes a power, subject to affirmative resolution, to reallocate them either singly or en bloc. We want to adopt an approach consistent with that in the case of SUDS. Paragraph 6(3) of Schedule 3 allows both the approval and adoption functions of the SUDS approving body to be transferred to another organisation together in their entirety, but it does not allow the Minister to split their functions, for the reason that I identified earlier: we regard the integrated approach as essential.

Amendments 72 and 73 would enable the splitting of those functions, but only if approved by both Houses of Parliament, because we consider that to be a significant change in policy. Our policy position is clearly set out in the Bill. Throughout, we have endeavoured to include the flexibility to ensure that the best arrangements can be put in place, should circumstances change over time. Noble Lords pressed me on one or two earlier amendments, on which the Government's defence is, quite properly, that we have regard to the future-proofing of legislation so that it is fit for purpose and that changes can be incorporated.

That is why the noble Lord, Lord Greaves, will understand that we do not believe that Amendments 70, 76 and 77 are necessary. They provide for the planning authority to have a duty to approve drainage systems. During the Bill's progress, we have made it clear that we believe that giving the SUDS approving body role to county local authorities fits well with their highways responsibilities. We expect many SUDS to be located in or alongside roads, especially in urban areas, where the issue of surface water often becomes most acute.

More importantly, county councils will have wider responsibilities under the lead local flood authority role in Part 1 of the Bill, and already have the responsibility for surface water management planning. These are issues that we covered earlier. Placing the SUDS approving body—the SAB—at county level will ensure that drainage systems are approved in the context of the wider management of local flood risk, and over a wider geographic area. To ensure this operates well, the Bill makes the SAB a statutory consultee to the planning process. It also sets out procedural arrangements, including provision for regulations to be made to ensure that timetables and processes for planning and SAB approval work effectively together.

As I have said, the county already has the flexibility to transfer its functions to the local planning authority by agreement, if it decides that that is the best arrangement. I hope that the noble Lord, Lord Greaves, will recognise the flexibility here. We are giving responsibility primarily to the county authority, but if the case is established that it is more appropriate that it should go to the district, that can happen in the interests of local people. Furthermore, the Bill already enables the Minister to make an order transferring the SAB functions to the planning authority, and the government amendments in this group would make that power even more flexible. I hope that it is appreciated that the Government have recognised that the original drafting of the Bill had an element of rigidity to it, which prompted these amendments, and that our amendments seek to improve flexibility.

Amendment 69, tabled by the noble Lord, Lord Taylor, would insert into the Bill a reference to water efficiency. I agree that we should do more to reduce water use generally, especially in areas of water shortage. Clause 36 of the Bill addresses the issue of water shortages. However, when raised in the context of SUDS, it is the use of rainwater harvesting that comes to mind. That is one of many potential techniques for managing surface water run-off—an important issue—although in periods of heavy or prolonged rainfall, tanks can fill up quickly and thus have a limited capacity to reduce the volume of water going into sewers, or the risk of flooding.

It is also important to understand the costs, benefits, practicalities and carbon impacts of harvesting systems. This issue will be addressed in the development of national standards for SUDS against which all proposed sustainable drainage systems must be judged. The Bill requires that Ministers consult on national standards before publishing them, and we will consult widely with all those who have an interest in the issue.

Amendment 78 requires the Minister to consult those likely to be affected by the arrangements for sustainable drainage set out in paragraph 17 of Schedule 3, and to publish a report detailing how the adoption and maintenance of drainage systems is to be funded, before the schedule is commenced. The funding of SUDS maintenance has been fully debated. Noble Lords will have appreciated the keen interest taken in this issue in the other place. I will reiterate to the noble Lord, Lord Taylor, that we have undertaken to ensure that the duty to adopt and maintain SUDS will be funded in full, one way or another, and that we will publish the way forward in time for implementation of the legislation. That will ensure that measures are in place to enable local authorities to implement SUDS in full certainty that there will be no gap in funding. I accept entirely the noble Lord’s anxiety on that point. I would like to be more precise about funding, but the commitment is there. The Government appreciate that local authorities have the right to expect that this important duty will be adequately funded. We make that commitment.

Having made a clear commitment to ensure that SUDS maintenance is funded, we will carefully consider the costs and benefits of the various funding options, and the impact on affected parties. If legislation is required to deliver a funding mechanism, we will consult appropriately. We have made it clear that we will keep under close review the costs and assumptions implied by the Bill and by the transfer of private sewers.

A review panel is already established and has already met. It brings together the Local Government Association, Defra, the DCLG and the Environment Agency. The review panel is enormously important. At this stage I am bound to talk in fairly general terms, but the panel has been established to address itself to this matter. We understand and agree with the concerns underpinning the amendment, but I hope that it will be appreciated that without legislation we are moving ahead with the concept that the amendment seeks to press on the Government.

Amendment 74, proposed by the noble Lord, Lord Greaves, seeks to broaden the definition of construction work with drainage implications. The noble Lord is right in wishing to ensure that a SUDS approval body will consider not just the drainage of the property or structure, but also its impact on neighbouring properties and others further downstream. I would accept this amendment if I did not think that the Bill already encompassed this very important concept.

Any construction work that will increase, decrease or divert the water leaving a site will alter the way in which the water infiltrates the land. This will include structures on and in the land. Therefore, the effect of the noble Lord’s amendment is already covered. Should there be any need to clarify further the definition of construction work with drainage implications, there is an order-making power under paragraph 7(4) to do so. Finally, the order-making power in paragraph 7(4) enables the Minister to set exemptions from the requirement for approval, which will be used to deliver the effect of Amendment 75.

Noble Lords raised an important point about the need to be proportionate and realistic about the types and sizes of development which will need to have their drainage plans approved by the SAB. I understand that point entirely. The noble Lord, Lord Greaves, was particularly emphatic in moving his amendment on this matter. We agree that de minimis thresholds are a sensible idea and we intend to introduce them. At the lowest level we will weigh up exemptions.

In the other place, we have said that we expect to phase the implementation of the SIDS proposals in the Bill, starting with larger developments, and we should achieve that through using this power to concentrate on the larger developments. I think that the noble Lord, Lord Greaves, was indicating in his amendment and in his speech that we should not concern ourselves with smaller issues when there are very big ones that we need to address. I want to give him assurances on that.

The noble Lord, Lord Taylor, asked about savings from private sewers and the need for update assessments of local authority costs. Any review of the costs of local authorities will reflect the fact that authorities are aware of transfer, and that their repairs will reflect this. Our estimates are somewhat conservative here. But, in the light of the data that we have, we excluded outlying high-cost returns in arriving at the figure. I appreciate that some vagueness is attached to these issues. There are bound to be aspects concerning estimates with regard to this, but I hope that the noble Lord will appreciate that the Government have addressed themselves to the issue of local authority costs. We recognise the importance of that. I think that I have mentioned also the former issue.

I do not know of any reason why the savings for local authorities arising from the transfer of private sewers should run out after a limited period of time. I do not see why that obtains. Therefore, I do not have much comment to make on that.

On the point made about transitional arrangements by the noble Baroness, Lady Knight, the schedule requires all construction work that affects drains to have its drainage system approved. The provision will be commenced by order, and such an order can make all the necessary transitional arrangements to ensure an orderly implementation. I take entirely the point made by the noble Baroness: we need to be reassured about all aspects of that issue.

I want to end on a slightly more positive note. I thank my noble friend Lady Young for reflecting exactly what the Government think about the point raised by the noble Lord, Lord Greaves, on the appropriate authority. However, he did ask a specific question about whether it would be possible for combined applications to be made together. I am able to say “yes” to that. If there is a planning application and a SUDS application, the applicant can lodge a combined application to the planning authority. I refer to paragraph 8(3) of Schedule 3. The approving body is the statutory consultee to the planning process, which is a further safeguard to ensure that the process works satisfactorily.

I apologise for the length of my reply, but noble Lords have raised some important issues on a significant part of the Bill.

I thank the Minister for his careful and detailed response to all the amendments. On the general issue, all I can say is that those of us who are members of district planning authorities—I think I declared that interest last week, but if I did not, I do so now—will be watching this very carefully indeed.

I, too, thank the Minister for his detailed response to the amendments, and indeed it does reflect the importance of Schedule 3. This is something of a leap in the dark, and indeed I think that the Minister admitted that there is not as much financial information available as perhaps he would have liked, but at least local authorities know that the Government have made a clear commitment to ensure that they are fully funded for this project. That, I would imagine, is a reassurance for them.

It is also a matter of some reassurance to us that the Bill is going to provide for a review process of this part, including future-proofing and so on. It would be fortuitous if the Government had got this part absolutely right in every respect first time, so there needs to be a way of learning from experience. However, as the noble Baroness, Lady Young of Old Scone, said, bringing this in through the Bill marks a significant step forward. I am happy that the Government have done so and, again, I thank the Minister for his thorough reply to the points made by many noble Lords. I beg leave to withdraw the amendment.

Amendment 68 withdrawn.

Schedule 3 : Sustainable Drainage

Amendments 69 and 70 not moved.

Amendments 71 to 73

Moved by

71: Schedule 3, page 53, line 21, leave out “a specified area” and insert “all areas or in one or more specified areas”

72: Schedule 3, page 53, line 22, at end insert—

“(3A) An order under sub-paragraph (3) may—

(a) appoint a body as approving body for specified purposes only;(b) appoint different bodies as approving body for different purposes.”

73: Schedule 3, page 53, line 27, after “sub-paragraph” insert “(3A) or”

Amendments 71 to 73 agreed.

Amendments 74 to 78 not moved.

Amendment 79

Moved by

79: Schedule 3, page 61, line 15, at end insert—

“( ) The first sets of regulations may not be made unless a draft has been laid before and approved by resolution of—

(a) each House of Parliament, in the case of the first regulations made by the Secretary of State, and(b) the National Assembly for Wales, in the case of the first regulations made by the Welsh Ministers.”

Amendment 80 (to Amendment 79) not moved.

Amendment 79 agreed.

Amendment 81 not moved.

Schedule 3, as amended, agreed.

My Lords, when can I move my amendments? Amendments 84A and 84B stand in my name and I should like to speak to them.

Clause 33 agreed.

Schedule 4 : Reservoirs

Amendment 82

Moved by

82: Schedule 4, page 63, line 7, leave out “10,000” and insert “25,000”

On behalf of my noble friend Lord Taylor of Holbeach, I beg to move Amendment 82 and speak to the other amendments in this group standing in our names. I hope that the Committee will bear with me. We have tried to hold all the amendments on reservoirs together in one group, so I have landed up with rather a shopping list of questions. We hope that this will help to speed things up.

Amendments 82 and 83 centre around what the whole scope of the legislation surrounding reservoirs should be and whether the Bill’s proposal to reduce the qualifying criterion to 10,000 cubic metres will result in gigantic overkill. Admittedly, in the first instance, the involvement will require only an inspection and then a classification into those that are considered of high risk. It would take some fairly exceptional circumstances for a 10,000 cubic metre reservoir to constitute a risk to human life. Can the Minister tell the Committee what estimate the Government have made of how many reservoirs will have to be inspected? There are two concerns. One is that the powers in the Bill are such that the concept and regulations could be gradually extended until any of these sites would require constant recording and monitoring. The other is that this will bring a whole new world of regulations into play for those wishing to construct relatively small reservoirs, some of whom may be market gardeners, farmers or managers of parks or golf courses. I think that I have expressed my interest in this area.

The UK has had legislation in regard to reservoirs for some 80 years triggered by the failure of a couple of dams in 1925. Since then there has been no loss of life caused by the breach of reservoir embankments. The current legislation, the Reservoirs Act, has been in place since 1975. It seems to me of some significance that the Pitt review—at ES95—states quite categorically that the UK now has an excellent record of dam and reservoir safety. It asked only that the Reservoirs Act be amended to provide better risk-based criteria. Can the noble Lord tell the Committee whether at any point the Pitt report recommended the reduction in capacity that is proposed?

My honourable friend in another place, Anne McIntosh, put an amendment before the relevant committee suggesting that a threshold of 15,000 cubic metres could be considered as a compromise. The Minister said in reply—at col. 380—that his discussion had coalesced around 12,000 cubic metres, so how have the Government come up with 10,000 cubic metres?

Amendment 83 relates to the Minister’s ability to amend by order the volume of reservoirs to which the Act should apply, as we have discussed. I am quite prepared to see that there are a host of measures for which it is only sensible that a Minister may introduce new criteria by order. We have discussed this at length this afternoon. However, I wonder whether I can persuade the Minister that in this case it would be a step too far. Of course, at this stage we cannot tell whether a Minister might in the future want to increase or decrease the volume, as is proposed in the Bill. However, this issue has had the full scrutiny of both Houses of Parliament and in the end we will make a decision on which the Act will be based. I am sorry to see that the noble Lord, Lord Greaves, is not in his place because I think—

As I say, I am sorry that he is not in his place because this is where the question of what powers this House has comes into play.

I maintain that an order which might be introduced under this provision changes the whole nature of the application of the Bill. As we discussed earlier, when such a change is introduced by order, we have the opportunity to comment and to ask the Government of the day to think again but, by the conventions of this House, we do not countermand or reject it. If my amendment is accepted, a revision of this scale will, once again, be subject to full parliamentary scrutiny, as it should be. That is where the power of this House lies.

I must apologise to the Committee as my next amendment, Amendment 84AA, contains a misprint. By rights, it should insert the word “property” after “human life” and so follow the amendment of the noble Lord, Lord Campbell-Savours. I shall be very interested to see what he has to say on the subject. My concern, which I expressed at an earlier sitting of the Committee, is that the provisions of the 1975 Act will be found to be extremely effective. The reason is that, although no criteria appear in that Act, the Institution of Civil Engineers produced its own categorisation of risk factors which were based on the danger perceived to life and property downstream of a dam. That was divided, according to the risk of both of those factors, into four categories and the engineers requirements were graded according to the risks. That is critical if our present record is to be maintained, and there is a danger that, if the second category is not included, it might lead to a watering down of the supervision that there has been up to now.

We now have a Bill that is intended to be risk based. At present, it merely wishes to categorise dams into large raised reservoirs and high-risk reservoirs, whereas experience has shown that risk can, and must be, defined with greater exactitude. I ask the Minister to tell the Committee, now or if we ever get to another stage of the Bill, whether the Government will explain to us whether they intend to produce some further categorisation of high-risk dams which will enable suitable measures to be applied to the various categories that have so far applied. I hope that the noble Lord, Lord Campbell-Savours, will try to persuade the Minister on similar issues when he speaks to his amendment.

Amendment 88AA applies to Section 22 of the 1975 Act, where it deals with the criminal liability of undertakers and their employees. That is obviously a serious issue and the present wording in the Act says that a crime is committed unless there is unreasonable excuse for the default. Obviously, the more serious the importance of the default, the higher the criteria of what is reasonable. Throughout the Bill, we are toughening the penalties on the operators of reservoirs and it seems to me that this is one area where the provisions of the present Act should be perfectly adequate. I beg to move.

I am sorry to detain the Committee at this late hour but these are very important issues in the area where I live in the north of England. If my noble friend finds it difficult to reply to some of my rather complicated questions because he has not been briefed on them, perhaps he could drop me a note.

I have two questions on high-risk reservoirs. First, what are uncontrolled releases? Does an uncontrolled release arise where a dam overflows—there might be a sill—but where there is no control over the amount of water that goes over the sill? I would argue that that is an uncontrolled release. Secondly, what is meant by human life being endangered? In Keswick, where I live, 200 properties were flooded and a lot of families were put under immense stress. In one case, I understand that a gentleman died following a stroke, which may well have arisen because of the stress he was under. Many other incidents in the area were reported to local GPs, but they have not been made public. I would argue that human life being endangered might cover some of those incidents.

One of my amendments deals with whether a residential property is inhabited—the amendment inserts the word “property”. If a property is flooded on a regular basis, and a particular reservoir is involved on each occasion, surely that reservoir should be designated as high-risk. Many people in the Keswick area believe that the Thirlmere reservoir should be designated as high-risk. The town lives under constant threat from that reservoir during the winter months.

The group that I run in Keswick, which reports to the Keswick Flood Action Group, has managed to negotiate a number of agreements with United Utilities on the level of the dam during the critical months of the year when the dam is full. However, United Utilities has a statutory obligation to provide water, and it has to weigh up to what extent it fills the dam in the winter months against any responsibility that it might feel it has towards local residents whose property might be flooded. That is why I believe very strongly that this should be designated as a high-risk reservoir.

Under paragraph 9 in Schedule 4, a panel of engineers could be appointed that would have substantial powers, including the power to provide for a regime for inspections of the dam, power over maintenance levels, the ability to influence measures in the interests of safety, and powers to require undertakers to carry out works. I always thought that under existing environmental legislation those powers were in the hands of the Environment Agency but that it has always been reluctant to exercise them. My noble friend, who was a former chief executive of the Environment Agency, will know about the discussions that I have had over the years with the Environment Agency on how there is a need for it to enforce and to ensure that water companies take into account the possibility of flooding in particular areas. I see this as a way of giving a body greater responsibility and powers over undertakers to make them act in circumstances in which they might be reluctant to do so.

The panel of engineers would also have the power to prevent uncontrolled escapes of water, which is why I want there to be a fuller definition of uncontrolled escapes. I am not sure whether paragraph 25 of Schedule 4, on discontinuance, applies to higher-risk dams, but it refers to reducing water levels. All I am arguing is that if a community ever feels at risk, high-risk dam designation should apply to the reservoir that places that community in difficulty. That would do a lot to reassure local populations. That is all I need to say at this stage.

My Lords, my three amendments in this group relate to arbitrary costs being imposed on those who try to conserve winter rainfall for sensible use in the summer. Such sustainable practices by farmers, golf courses and others must be encouraged rather than discouraged.

I agree with my noble kinsman, the Duke of Montrose, that the 10,000 cubic metres cut-off line was fairly arbitrary. I know that at Second Reading much was made of that being equivalent to three-quarters of the Royal Gallery, so it sounds quite a frightening amount, but that is because of the height of the Royal Gallery. In fact, such an amount in a reservoir is likely to amount to only 2 metres deep by 70 metres by 70 metres. That is not a particularly big reservoir, really. It is very unlikely that such a structure will go “whoosh”, with all the water escaping all at once, especially an off-stream reservoir in which the spillway is designed to cater for only small amounts of rainfall that fall in the reservoir. An on-stream reservoir is different because it caters to floods, and the stream—it is usually a stream—increases and can cause problems. An off-stream reservoir presents very little danger. A bank would break down over time, and there would be a certain amount of seepage. The trickle would become a flow that would accelerate over an hour or so, and you would probably be left in the end with, say, a quarter of the water or less in the bottom of the reservoir.

If you change the cut-off from 10,000 cubic metres to, say, 15,000 cubic metres, instead of being 2 metres by 70 by 70 metres, it would be 2 metres by 86 by 86 metres. That is not very different, and the risk scenario does not change all that much. However, I am not going to oppose a 10,000 cubic metre cut-off. I would just say that it seems slightly controversial. If we accept it, the one thing we do not want is for it to be changed again through an arbitrary decision made by an unreasonable, risk-averse Minister without parliamentary input being an essential part of that decision. I hope that the Minister can reassure us on that.

I want to add only a little to what has been said. There is a world of difference between the circumstances described by the noble Lord, Lord Campbell-Savours, and the sort of reservoir mentioned by the noble Lord, Lord Cameron of Dillington. The problem we are facing here is that we are trying to deal with both sets of circumstances in one schedule. I am rather surprised that the reservoir described by the noble Lord, Lord Campbell-Savours, is not already caught by the large reservoir construction regulations, which require a far higher standard of safety than the sort of reservoir described by the noble Lord, Lord Cameron; indeed, I happen to possess one. I have to say that it is a remarkably small puddle of water, but it is to be included in this provision.

There is of course yet another classification of reservoir which might be added here. A lot of reservoirs such as mine that are used to collect winter rainwater have no streams running into or out of them at all because the water is simply pumped. When the reservoir begins to look slightly full, you switch on the pump so that no more water can get in and, frankly, there is no risk. Even if there is an unearthly downpour, as we had on one occasion in our part of the world a few years ago—I know that a neighbour saw the level of his swimming pool rise by six inches—it will not reach anywhere near the top of ring reservoirs that are pumped. Trying to classify all these different types of reservoir in one simple schedule is very difficult.

We have perforce to accept what is before us today, but in other circumstances there is no doubt that the case would be argued most forcefully that a lot more detail has to be put into this schedule in order to make sense of the vastly differing circumstances that the present classification seeks to gather together as if they were identical. I agree entirely with the noble Lord, Lord Campbell-Savours, that the circumstances of the people of Keswick are intolerable. Indeed, I am very surprised that the situation is not already covered by other reservoir construction regulations. If it is not, it jolly well should be. However, the sort of position described by the noble Lord, Lord Cameron, is very different. The only person or body that is likely to be damaged if a small irrigation reservoir goes is normally the owner himself. Occasionally it might pose a risk to a neighbouring household, but these constructions are out in the open countryside, and therefore the level of risk is very low indeed.

If one looks at the need for increased productivity from agriculture in the future, the use of irrigation is going to have to become more widespread. Certainly, anything that imposes unreasonable costs would draw to it wide objections from many different bodies. I can do no more than say that I hope the Minister will accept that there is a problem here. The schedule seeks to encompass many different circumstances into what is apparently one system. The Government will have to exercise great care in how they define and administer these provisions. At the moment we cannot change the schedule, but I have no doubt that if this Bill had been going through in anything like normal circumstances, there would have been some considerable amendment here in order to take account of the very different situations that can and do exist.

My Lords, I hesitate to stand between noble Lords and their dinners but I want to give a brief history lesson on reservoirs. In the middle of the previous decade the Environment Agency acquired additional responsibilities under the Reservoirs Act. It was pretty shaken to discover what a poor condition many of our reservoirs were in and how rickety the legislation was. Therefore, I very much welcome this legislation, which will bring into being the very thing that many noble Lords have demonstrated is necessary; that is, a reservoir-by-reservoir risk assessment. Starting from a threshold of 10,000 cubic metres, each reservoir could be given a quick assessment to find out whether it posed a risk to property and human life. Then the appropriate framework could be put in place. All the examples given of what might or might not be included demonstrate that you can do this only on a reservoir-by-reservoir risk assessment—which is what this schedule attempts to do.

The noble Duke, the Duke of Montrose, referred to the threshold and said that the Pitt report had not said very much about reservoirs. However, when the Pitt report was being prepared, staff at the Environment Agency were running around like demented ferrets rapidly bringing into order the reservoirs that were their responsibility as they were so taken aback by just how poor the standards were in some cases. Noble Lords may recall that during the 2007 floods, had a certain reservoir burst its banks we would have been faced with the awful prospect of shutting a major motorway for a very long period.

I suppose that it is a cheap joke to say that size does not matter but that is absolutely true as regards reservoirs. What matters is their location, what they lie adjacent to, how they are constructed, whether they are above ground and above habitation, and their maintenance standards and levels. Therefore, I hope that noble Lords will accept that this is a rather good way of constructing reservoir safety legislation for the future.

I am grateful to all noble Lords who have contributed to this important debate. I am conscious of the time and the volley of questions that I have been asked. Therefore, I shall try to respond without repeating all the arguments that have already been voiced in defending the position that the Bill adopts. I am grateful to the noble Baroness, Lady Young, for identifying that Sir Michael Pitt’s review recommended a more risk-based approach to reservoir safety. He thought that this issue needed to be addressed and applied to reservoirs of more than 25,000 cubic metres. However, the problem is that we cannot afford to ignore the risk posed by reservoirs below that capacity. The problem lies in identifying the correct figure. The noble Duke, the Duke of Montrose, was right to indicate that there are difficulties in this area. However, I emphasise to the Committee that the 10,000 cubic metres threshold figure has not just been plucked out of the air. The view of the dam engineering profession based on its extensive knowledge and experience of dams and reservoirs is that the figure of 5,000 cubic metres originally proposed by the Environment Agency is too low but that 10,000 cubic metres is the right figure.

So we have expert advice on this, but I accept the obvious point that there are difficulties in identifying reservoirs at risk that do not all relate to size. We cannot be certain about the minimum figure: that is why the Bill enables it to be adjusted, if appropriate, in the light of further evidence that may emerge in future. We have to do the risk assessment at some point, and if expert advice indicates that we should look at reservoirs of 10,000 cubic metres and above, that is what the Bill will provide for. Therefore, I hope that the noble Duke, the Duke of Montrose, will recognise why I cannot accept Amendment 82 with its figure of 25,000 cubic metres.

I will also reply briefly to the noble Lord, Lord Cameron. I do not in any way deny the validity of all the points that he made. However, the Bill already provides for the effect of his amendments. I could go into inordinate detail in justifying this position, and do so at inordinate length. However, I would not make that statement to the noble Lord if I were not absolutely certain that, in syncopating my reply, I am saying that we understand his amendments fully and that the Bill already provides for the points that he made. I also say to the noble Lord that there are farm reservoirs that are currently regulated which pose a negligible threat to life. As we said at Second Reading, the routine supervision and inspection requirements will not apply to reservoirs that pose a negligible risk to human life. This is the case with many farm reservoirs. Equally, for those reservoirs brought into the Bill by these proposals, those that pose negligible risk to human life will also be exempt from the regulations. I hope the noble Lord is satisfied with that response.

My noble friend Lord Campbell-Savours will not be satisfied with my response, because he is never entirely convinced by a position in response to an issue that he raises. He has properly identified a great anxiety that he has. He has been involved in these issues for a considerable time. I will have difficulty in responding to him, except in these terms. He asked about uncontrolled releases. They arise either from a collapsed embankment that has been overtopped and washed away, or from within. I will write to him in more detail about uncontrolled releases.

As far as concerns the releases themselves, I understand exactly the point that he made about his anxieties. However, I emphasise that the purpose of the Reservoirs Act 1975 was to manage the risks of a potential catastrophe, not to regulate the way in which reservoirs release water as part of their operations. I understand entirely my noble friend’s anxieties about how the release happens, and about its consequences. However, I emphasise that our first obligation is to deal with a potential catastrophe: that is what is addressed by the Bill. There are other aspects concerning regulation of the utilities and their reservoir operations to which my noble friend has given attention. This part of the Bill is not the place to address the problems that he has identified.

We are aware of the desirability of the operation of a reservoir taking account of the overall flood management of the area. Many reservoirs are operated by water companies. Clause 11(4) will require the water company, as a flood risk management authority, to have regard to local and national strategies and guidance in exercising functions that may affect a flood risk, including operating its reservoirs. The issue comes within the ambit of the Bill in those terms. However, the noble Lord will recognise the difference between that and the issue of catastrophe. I will give way to my noble friend.

They may have regard to what my noble friend just referred to, but equally they must have regard to the fact that they have a statutory duty to supply water. There is a conflict between the two. I am simply trying to move the balance a little more in favour of the protection of the environment and away from the duty to provide water. This may well have been the ideal place in the Bill to move that balance slightly.

In that respect, the Bill does something. It extends the powers to enable releases from water company reservoirs to be controlled to help to manage local flood risk. I described the obligations on them to respond to that, so the Bill is helpful in those terms. I know that it falls short of my noble friend’s amendments and his concerns on the matter. In assessing whether a reservoir should be designated as high risk, the Environment Agency will be largely reliant on the reservoirs inundation map, which will identify all the areas in which people may be at risk, either at home or at work: the inundation zones of reservoirs. That is the issue: the risk to human life at home or at work. That is the main concern of the Bill.

The noble Duke, the Duke of Montrose, spoke to Amendment 84AA on taking steps to ensure only that any flood flows could be retained on his lands. He can indeed negotiate with other landowners to take steps to do so if he so wishes. How far that is practicable and effective in minimising the risk to human life that might affect a reservoir’s high-risk designation would have to be judged by the Environment Agency. I emphasise to him that we are here concerned with high risk—not with the size of the reservoir but the nature of the risk. I therefore hope that he will appreciate that we have considered those matters in drafting the Bill.

Finally, the government amendments bring all but one of the existing delegated powers in the Reservoirs Act 1975 into line with our approach in paragraph 38 for the powers inserted into that Act by Schedule 4. There is one exception, which specifies how engineers who want to apply to become panel engineers must apply to the relevant Minister. That is a very minor part of the Reservoirs Act, and we did not think that that was appropriate in the Bill. All other matters have been transferred in that way. Essentially, that is what the government amendments do, and I shall move them in due course.

I hope that noble Lords will forgive me for having rushed my reply to this important debate.

I thank the Minister for covering as much as he could, although a great many other points came up. I am grateful to all those who have participated in the debate. My noble friend Lord Dixon-Smith and my noble and learned kinsman Lord Cameron mentioned that we hope that, in trying to mitigate climate change, many more small run-off reservoirs are provided. Quite a few complications will arise for them out of this legislation.

I do not think that there should never be any change to the criteria on size. The point that I made earlier was that this sufficiently large change should be subject to full parliamentary scrutiny, rather as we are doing at the moment in modifying the 1975 Act by this legislation. I was trying to make that point to the noble Lord, Lord Greaves, who worries that we do not try to alter some bits of secondary legislation. If we really feel strongly about it, we do not put into place the power of secondary legislation. It is left as a matter for primary legislation.

If we had further stages, we would probably want to return to quite a few of these issues, but in the mean time I beg leave to withdraw the amendment.

Amendment 82 withdrawn.

Amendments 83 to 88A not moved.

Amendments 89 to 97

Moved by

89: Schedule 4, page 75, line 6, after “regulations” insert “, rules”

90: Schedule 4, page 75, line 9, leave out “regulations or an order” and insert “an instrument”

91: Schedule 4, page 75, line 12, leave out “regulations or an order” and insert “an instrument”

92: Schedule 4, page 75, line 16, leave out “2(2C),” and insert “2(2) or (2C),”

93: Schedule 4, page 75, line 18, at end insert—

“( ) section 3(1) or (3),( ) section 4(9),( ) section 11(1),”

94: Schedule 4, page 75, line 19, at end insert—

“( ) section 19(5),”

95: Schedule 4, page 75, line 20, at end insert—

“( ) section 20(1),”

96: Schedule 4, page 75, line 21, at end insert—

“( ) section 21(1),”

97: Schedule 4, page 75, line 36, at end insert—

“( ) The first sets of regulations under section 2E or 19A may not be made unless a draft has been laid before and approved by resolution of—

(a) each House of Parliament, in the case of the first regulations made by the Secretary of State under either section, and(b) the National Assembly for Wales, in the case of the first regulations made by the Welsh Ministers under either section.”

Amendments 89 to 97 agreed.

Schedule 4, as amended, agreed.

Clause 34 agreed.

Schedule 5 agreed.

My Lords, I think that this would be an appropriate moment for the Committee to adjourn to a date to be agreed shortly.

Committee adjourned at 8.11 pm.