Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Reservoirs Act 1975 (Exemptions, Appeals and Inspections) (England) Regulations 2013.
Relevant document: 23rd Report from the Joint Committee on Statutory Instruments, Session 2012-13.
The amendments to the Reservoirs Act 1975 by Schedule 4 to the Flood and Water Management Act 2010 introduce a more risk-based approach to the management of large raised reservoirs, and these regulations are a key component of this process. The regulations are required to be brought into force as soon as the substantive provisions amending the 1975 Act are commenced.
By way of background to the Reservoirs Act 1975, while it is rare for a large raised reservoir to fail, the impact of such failure on life and property could be considerable. During the 2007 summer floods, there was a near-miss incident at Ulley reservoir where a complete reservoir failure was averted only by emergency action. In his review of the 2007 floods, Sir Michael Pitt made recommendations for improvements to reservoir safety. These recommendations were addressed through amendments to the 1975 Act made by Schedule 4 to the Flood and Water Management Act 2010.
Regulation-making powers inserted into the 1975 Act by the 2010 Act include the allowance of specific exemptions from the 1975 Act, the introduction of appeal rights and clarity on the timing of inspections. The regulations relating to exemptions specify what are not to be treated as large raised reservoirs for the purposes of the 1975 Act. Exemptions from the 1975 Act include tips that are covered by mines and quarries legislation and canals and inland navigations, and these exemptions are maintained. Due to the new definition of a large raised reservoir as a result of the 2010 Act, other bodies of water potentially fall within the scope of the 1975 Act. This has led to a new exemption for road and rail embankments with drains that have not been artificially blocked, such as with gates. Where a road or rail embankment effectively acts as a flood storage reservoir, it should be recognised as such and managed accordingly.
The regulations also provide undertakers of large raised reservoirs with the right to an appeal. An undertaker may appeal against the designation of a large raised reservoir as high risk and against notices given by the Environment Agency either to appoint an engineer or to carry out a recommendation of an engineer in the interests of safety. The regulations provide that the First-tier Tribunal will hear all appeals under the amended 1975 Act. To maintain the credibility of the 1975 Act and the efficacy of the designation regime, it is important that the appeals mechanism is independent, efficient and comprehensive and is a fair and cost-effective way of adjudicating any disputes. The process for bringing an appeal is governed both by these regulations and by the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.
The regulations also set out the timings of inspections. Previously, under the 1975 Act, all large raised reservoirs had to be supervised and inspected, whereas the 2010 Act amends this to include only those large raised reservoirs designated as high risk. Transitional arrangements will be in place to ensure the smooth introduction of these requirements. The regulations also require the Secretary of State to review the operation and effect of these regulations and to publish a report within five years after they come into force. The powers to make these regulations are contained in the amendments made by Schedule 4, which were commenced in October 2011. The substantive provisions introducing a more risk-based approach to reservoir management cannot be implemented without these regulations.
The amendments to the Reservoirs Act 1975 introduce a more risk-based approach to the management of large raised reservoirs and these regulations are a key component of that process. They are a necessary and appropriate statutory obligation and I therefore commend them to the Committee.
My Lords, anyone observing this debate might think that, based on attendance, there is little interest in these regulations. However, I think that this is one of those circumstances where attendance signifies consent, and lack of attendance signifies positive consent. I think the fact that more noble Lords have not attended the debate simply demonstrates the extent to which the regulations are not contentious.
I remember well the floods of 2007 and how perilously close we came to real disaster when emergency action averted the failure of Ulley reservoir. That was why the previous Government, of whom I was a member, asked Sir Michael Pitt to carry out the review, and the Pitt report recommended these improvements to reservoir safety legislation and, in particular, this risk-based approach. It would be extremely churlish of me to be anything but supportive of these regulations given that they reflect the work that was done following the Pitt review. It merely remains for me to ask two or three questions that arise from the regulations.
The first, which might sound slightly oppositional, is straightforward. Why has it taken so long to bring forward the regulations given that Sir Michael Pitt carried out his review some time ago? They are dealing with significant matters of risk in respect of flooding and we have had a lot of flooding activity in the past 12 months. Everyone has noticed the nature of the weather during that time and the flooding that goes with it, so it would be helpful to know whether more could have been done to bring these forward sooner.
The second question is on Regulation 3 and those items not treated as being large raised reservoirs. As the Minister said in his opening comments, certain items such as tips, which have been exempted as large raised reservoirs, and other items are being added here. Assuming that some of those items might have some high risk attached to them on a risk-based approach, how is that risk being assessed? Who is inspecting them and how is the risk then being raised and dealt with by the owners of those bodies of water? If none is of high risk because of its very nature—such as its embankments or drains—then to ask whether the risk-based approach would not have dealt with it without this piece of legislation is perhaps rather a pedantic, subsequential question to that.
Finally, Regulation 4 deals with the right to appeal first against designation and Regulation 5 with the right to appeal against a notice. The basis of that appeal is to be able to go to a First-tier Tribunal. Can the Minister update us on how much capacity the Tribunals Service has to deal with these appeals? What is his expectation regarding the volume of appeals? As we refer more things to the Tribunals Service, there is a general concern that the service’s funding is not growing. I am quite confident in saying that. I suspect that it might be shrinking, and yet we are asking it to do more work. In these matters of public safety, which is what these regulations are dealing with, we would certainly not want appeals to be delayed because of a backlog at the Tribunals Service due to its lack of capacity.
That is probably my most significant question. The Minister has been assiduous in writing to me when things do not initially seem as forthcoming as they could be, and any information that he could give us about the Government’s assessment of the Tribunals Service’s capacity would be very helpful. Incidentally, if an appeal is unreasonably delayed in the Tribunals Service and an incident then occurred, where would the liability fall? Would it fall with the owner of the reservoir or with the Government because they did not have sufficient capacity in the Tribunals Service?
My final question also relates to the Tribunals Service. There was some mention either in the impact assessment or the Explanatory Notes of discussions that are still going on with the Tribunals Service about how it will deal with technical matters as opposed to legal matters when appeals are being heard. If the Minister has any update to put on the record about those discussions that would obviously be very helpful.
To summarise, we on this side are extremely happy to see the Government coming forward with these regulations, although we would have liked them to have happened a little quicker. There are one or two issues of concern in terms of the tribunal arrangements for appeals, but it is right that people should be able to appeal and it is right that it should be done in the context of the Tribunals Service. I therefore do not have any substantial argument with the way in which this is going forward. On that basis, I hope that I have given the Minister enough time, by talking a little longer, for him to give us some answers.
My Lords, I thank the noble Lord for his comments and questions: I will do my best to answer them. As he kindly said, if there is anything that I am unable to answer now I will of course write to him.
The noble Lord's first question was why in the broadest terms it has taken this long to get to where we are today. I acknowledge that phase 1 has taken longer than I would have liked. He was kind enough to acknowledge, and he is right, that resources have to be prioritised. It has been, as everyone knows, important to deal with ongoing, relatively widespread instances of flood emergency. That simply has to take priority and I think that everyone would acknowledge that life and property must take first place.
The noble Lord also asked about the prioritisation of reservoirs, and if reservoirs are excluded from this regulation then how the risk is encompassed. Tips and so forth are covered by the mines and quarries legislation, save for other extant arrangements there, and the Health and Safety Executive leads on that. I hope that that is adequately helpful to him. Canals are managed using risk-based management approaches.
The noble Lord asked about the right to appeal under Regulation 4 and he was specifically concerned about the capacity of the Tribunals Service. We are in discussion with the service about the likely workload and the resources needed at the moment and I cannot at this stage go further. However, he has pinpointed the right question. We agree with him and are investigating how we will deal with it.
On that basis, I hope that noble Lords will agree that the Grand Committee has considered the regulations.