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Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2016

Volume 769: debated on Tuesday 22 March 2016

Motion to Consider

Moved by

That the Grand Committee do consider the Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2016.

My Lords, I am pleased to introduce these regulations, which replace the existing flood defence consents scheme with a new scheme under the environmental permitting framework. This debate follows one in the other place and one in the Welsh Assembly earlier this month.

Certain activities in or near watercourses or sea defences can increase flood risk. The Water Resources Act 1991 requires people to seek prior consent before they start such activities on main rivers, to make sure that they are not undertaken in a way that increases flood risk. Main rivers are designated as such due to their higher flood risk, and about 20% of watercourses in England and Wales are designated as main rivers.

The devastating floods we saw this winter demonstrate how important it is that people do not unwittingly increase flood risk to themselves or to others. With no regulation, activities might block or restrict watercourses or the effective operation of the flood plain, leading to flooding of other property that might not have happened otherwise. Equally, flood defence structures might be damaged with the same effect.

Under the current scheme, everyone must submit an individual, detailed application for a bespoke consent whether their proposed activity on a main river has a high or low risk of increasing the risk of flooding. The new flood risk activity permitting scheme introduced by these regulations uses the framework of the environmental permitting regulations to reduce the administrative burdens of applying for a permit. A public consultation on these proposals was held from December 2014 to February 2015, and the proposals were broadly supported. We made a number of improvements as a result of comments made: for example, to include conditions to protect priority river habitats.

The new scheme uses a risk-based and proportionate approach to permitting activities. We will, of course, continue to ensure that flood risk is not increased. High-risk activities will continue to be closely controlled, but activities that cause no increased flood risk to others can be removed from superfluous close scrutiny. As a result, half of all permits that are issued under the current scheme will be eligible for a simpler permit or could be exempt from the need for an application. Under the new scheme the Environment Agency and Natural Resources Wales have used their experience under the current scheme to categorise activities on main rivers into four bands.

Bespoke permits will be written specifically for activities which are unique or of higher risk. Half the current consents will need a bespoke permit under the new scheme. For example, building a new weir for a hydropower scheme or changing the course of a river will require a bespoke permit. Activities needing bespoke permits will be subject to the same close assessment of potential impacts as under the current scheme.

Some 20% of applications will qualify for standard rules permits. These permits are for low-risk activities. Standard requirements and conditions are set out so that applicants can see in advance whether the permit is applicable to their proposals. Standard rules permits are quickly applied for and issued. They are available, for example, for repairing and protecting up to 20 metres of riverbank or for up to 20 metres of temporary scaffolding.

Lower-risk activities are exempt from needing a permit. For these activities the person needs only to register and then follow the conditions set out in these regulations. Some 27 activities have been defined for exemptions; including, for example, putting electric cables under the watercourse and dredging up to 1.5 kilometres. The dredging exemption allows land managers to remove silt from just under a mile of man-made ditches, land drains, agricultural drains and previously straightened watercourses in England. This exemption will make it easier for landowners and others to drain their land and to maintain the flow of water in low-lying areas—an important contribution to lowering local flood risk. We have been engaged with the National Farmers’ Union throughout this process, and have been alerting both national and local stakeholder groups to the new scheme.

The lowest-risk activities are identified as exclusions. So long as people are able to follow the conditions laid down in these regulations, they are able to undertake the activity without any permit or registration. An example of an exclusion is the laying of electrical cables under an existing structure, such as a bridge. Some 30% of current applications will be eligible for an exemption or exclusion. In many situations people will be able to change the way in which they do the work so that they will be able to move from needing a bespoke permit to a standard rules permit or even an exemption or exclusion.

Regulators will be able to issue a single permit for ongoing activities that could typically last up to five years: for example, maintenance of flood defences or other structures. Currently, a separate consent is required each time work is proposed or for a series of structures on a watercourse. People will also be able to apply for a single permit that covers multiple activities on one site, such as a farm.

Another key benefit of using the environmental permitting framework is that applicants will need to make only one application to cover a number of different schemes. They will save the time and cost of putting together the necessary information for an application.

The Government intend to review these regulations in 2019 as part of a more general review into the environmental permitting regulations. In the mean time, we will keep the activities permitted under exemptions, exclusions and standard rules permits under review to make sure that we have the right balance between removing red tape and protecting people and property from flooding.

These are proportionate and important regulations and I commend them to your Lordships.

My Lords, I thank the Minister very much for his introduction. He will know, and has just described, how particularly sensitive the issue of activities on or near watercourses is at the current time, given our recent history of flooding disasters. In particular, we are becoming much more aware of how seemingly small changes upstream can have a cumulative effect further downstream. There is a danger that the impact of relatively small activities is not necessarily contained within a localised area. This has been acknowledged in our trend and that of the department of talking about river flows within a whole catchment area, but we also still have a great deal more to learn about how water flows and the detail of flood management. I think that we are all on a steep learning curve with regard to that. Similarly, I think that it has been acknowledged by the Environment Agency that it has to rethink where its interventions can be most effective.

I can of course see the sense in simplifying the environmental permitting framework, in terms of its paperwork and in the way that the Minister described of not having to make multiple applications for what is effectively one task. But can we be assured that the new emphasis on permits concentrating on larger projects—we have talked about larger risks on or near rivers—will not curtail the Environment Agency’s scope for having a more holistic approach to river management? I am taking into account particularly how a number of small interventions might interact as the river flows on.

As has been said, the proposals claim to put greater focus on risk-based management of watercourses. Do we have the scientific understanding to know what the risks really are, and therefore what practices should be acceptable or unacceptable? It seems that we are in the middle of a rethink on all these issues, so what will be the process of deciding what is high or low risk? Will that judgment be made ultimately by an individual at the Environment Agency?

Can the Minister also reassure me that these proposals are not driven simply by the need for the Environment Agency to make efficiency savings? The truth is that many communities are reassured by seeing that agency’s officers on the ground, working alongside them and often actively anticipating and responding to problems large and small. Can we be reassured that the new risk assessment process that he described will not leave some smaller communities having to face localised problems on their own? Where will the ongoing support be for those small communities?

I also want to ask about the communication process because, while I fully acknowledge that the current permit system is probably far too complex, it seems to have the advantage of alerting a wider group of people that river activity is planned in their area. If there is to be a simplified application process, can we be assured that all those bodies that have been notified in the past and will have an interest in the planned activity will still be made aware of it before the actual activity commences? I am thinking in particular of local authorities and highways authorities, which might have a view on what is proposed.

On the issue of communication, can the Minister clarify how individual householders who may be affected by localised river activity—for example, dredging or bank clearing—will be made aware of this? Such activity could have an impact on their property even if there is no wider flood risk. How will the new permit regime be publicised? How will individuals find out what is being proposed?

Finally, it feels as though we are making changes—the Minister has referred to this—to what might prove to be a rather outdated approach to the whole environmental permit regime. The Cabinet Office review of the flood defence strategy is taking place at the moment and, as I said, the Environment Agency is also looking again at its strategy. The Minister said that there would be a review in 2019. I very much welcome that because it seems to me that, somewhere down the line, we need to look again at taking a more holistic approach to this and at whether the environmental permit scheme that we have is the right way to go about it. Obviously I realise that the review will take some time to be reflected on and worked through, and it may be that the reviews that are taking place are looking at that anyway. It is important that local communities have faith that their interests will be protected in the most effective ways. I look forward to hearing the Minister’s response.

My Lords, I thank my noble friend for introducing these regulations this afternoon, which will, I think, make life easier for those having to cope with flooding. I have just a couple of issues. First, in the recent flooding of this past year—for example, up in Pickering in Yorkshire—temporary logs were put in to stem the rapid flow of water down the river. Presumably, that did not need any approval—but, if it did, how quickly was that gained? These things can happen very quickly and I am not quite sure how immediate the response to something like that would be. It was a very good initiative and it worked wonders for them. That is just one practical query.

Secondly, of the 53 responses that the Minister had, 74% supported the proposals and, as a result, further discussions took place, for which I am very grateful. He mentioned that they had discussions with the NFU —here I should declare that I am a member. But are there any outstanding issues that could not be included but that the Government wish to think about further? Was there just a small handful of queries or have they managed to resolve all those that were raised?

From my point of view, I welcome anything that eases regulation, providing that the regulations that are in place work. I gather that this will be cost-effective as well, so I welcome the regulations. It is just a matter of making sure that whatever we do is an improvement on the river flow as well as protecting the wildlife and habitats that surround the river. One of the examples given was the whole question of having to put up fencing to keep cattle off at certain times.

I thank the Minister for introducing the regulations, and my query was only a very small one. But sometimes things happen very quickly, and I am not sure whether that is covered by these regulations or where that authority would have to go to get permission to do what it did.

My Lords, following on from the excellent questions from my colleagues in the Room, I want to ask the Minister for a little more clarification on the point mentioned by the noble Baroness, Lady Jones of Whitchurch, about review. Like my colleagues, I am not opposed to these regulations, but we need to make sure that they work.

The Minister referred to a general review of the environmental permitting regulations in 2019. Is he prepared at this stage to say a little more about what the purpose of that general review at that time is? I think it is quite important, given that there has been a lot of discussion over recent years about cutting back on red tape, that we see not only what the purpose of that is but how reviewing these regulations fits into that.

As a supplementary to that, the Minister mentioned that, in the mean time, before that 2019 review takes place, these regulations will be kept under review. I wonder if he would be prepared to say what exactly that review’s form will be—what monitoring would be undertaken, and what resources would be available—given that, as mentioned by the noble Baroness, Lady Jones, there have been some issues relating to funding for both the Environment Agency and Defra in recent years. So the Liberal Democrats are not unhappy with this approach, but it is a new approach and it needs to be reviewed—and we need the resources to ensure that that will happen.

My Lords, I am most grateful for those remarks, and I am also grateful that there is a general understanding of the purpose of what we want to do. We feel that there are a variety of activities, so it would not be proportionate to have the same sort of approach to permitting for everything; it would be much better if we could direct resources in a more targeted way.

I do not think that anyone can quite comprehend—I certainly cannot—what it was like to have withstood the sort of flooding that we saw in Cumbria, Yorkshire, parts of Durham and Lancashire over the winter. The level of rainfall and the conditions were devastating. Nothing involved in this work here is in any way seeking to shortcut anything that we must do to ensure that we are as well prepared as we can possibly be in this country for those sorts of extreme weather events—or the change in weather patterns or climate change, whatever we want to call it. I assure the noble Baroness, Lady Jones of Whitchurch, who referred to the reports and ongoing work, that nothing in this piece of work is intended to do anything other than work through sensible permitting arrangements for a range of activities, which I hope are utterly common-sensical and could not possibly increase flood risk. None of us is in the business of doing anything other than reducing and managing flood risk for people. That is absolutely right, because we are all thinking about the holistic basis on which river flow is managed in the whole catchment area of rivers.

The noble Baroness, Lady Jones, asked how the two regulators will be able to manage river flows on a holistic basis. For instance, the dredging exemption, which has been designed to be used in specific areas, is not about suddenly enabling dredging everywhere: it is about specific areas and for specific purposes. It is framed to deal with any cumulative effects, so it is certainly not, in any way, going to help increase flood risk downstream: quite the reverse. The exemption is limited to the removal of accumulated silt and sand, and expressly prevents the removal of natural gravel or the deepening or widening of the watercourse. Those of us who understand a bit about ditches and drainage know that there are low-lying areas where ditches in good heart prevent flooding, rather than accumulate it further down the river course. It is specifically designed for that sort of work.

Indeed, the noble Baroness rightly asked about how best these matters could be assessed. It is fair to say, and it is the truth, that the public service often gets brickbats and you have to have the hide of a rhinoceros. But the truth is that the people who work for the Environment Agency and Natural Resources Wales have around four decades of technical and practical experience of assessing the risks of proposed activities in or near watercourses. Their cumulative knowledge is very considerable indeed.

I am very conscious of the way that we look at river courses in the whole catchment area but, having met many Environment Agency staff, I know that they have a very strong local knowledge and interest in how best to manage those watercourses. Over this time, they have advised applicants on how to undertake activities to reduce or remove the risks. I shall say more about resources, but I am confident that on the technical side of those parts of the public service, there are people with immense knowledge.

As I set out in my opening remarks, the Environment Agency and Natural Resources Wales have used this experience to categorise activities on main rivers into higher and lower risk, and thus into the four bands. Removing the lowest-risk activities from the need for a permit enables the two regulators to concentrate their efforts on considering applications for standard rules permits and bespoke permits. They will publish guidance setting out clearly which activities need consent and when standard rules permits, exemptions and exclusions apply, as well as other aspects of the scheme. It is obviously very important in communications to local householders, businesses or farmers that the new scheme is understood.

In response to a point raised by the noble Baroness, Lady Jones—I think that the noble Baroness, Lady Parminter, also referred to this—I reassure your Lordships that there will be no reduction in the number of Environment Agency staff that will be seen on the ground as a result of this scheme. Indeed, in last week’s Budget the Government announced an increase in maintenance expenditure in England of £40 million a year. As a result, I believe that their presence on the riverbank will increase as they undertake more maintenance activities around the country.

I am also very happy to reassure the noble Baroness, Lady Jones of Whitchurch, that these regulations have not been motivated by any question of efficiency savings by the two agencies—far from it. These regulations were drawn up in recognition of the fact that we could safely reduce oversight of the many low-risk activities that are undertaken and thereby reduce red tape for applicants. The new scheme will also reduce administrative burdens for the regulators. These savings mean that their costs will be lower, and thus fees under the new scheme will also be lower than they would otherwise have been.

I was asked a number of questions, which I hope to be able to answer, but if I do not provide the fullest detail I will write to noble Lords. My noble friend Lady Byford was absolutely right to mention the issue of slowing the flow. We know that the Pickering scheme has been deemed to be very successful and I am sure that we will hear much more about it, but I must not pre-empt any reports that come out. The response from my guardians behind me is that, if people need to take action to avoid flooding in any sort of emergency, they do not need to apply for a permit; this sort of activity is covered by an exclusion. In that case, we would want the capability to deal with an emergency as promptly as possible.

My noble friend Lady Byford also asked about the consultation and whether the Government were considering any other proposals. Of course, we would be open to any suggestions for further exclusions, exemptions and standard rules permits, but we would need to examine any proposals very carefully to ensure that the conditions of use could be applied across the country. Clearly, with the exemptions and exclusions, we have sought to take what I would call the common-sense approach about what is sensible to have in an exemption or exclusion so that we can concentrate on the large proportion of work that will need bespoke permits, because that is where we need to ensure that we get everything absolutely right.

The noble Baroness, Lady Jones of Whitchurch, asked about the notification of local authorities in particular. Although the environmental permitting framework does not require prior consultation on the take-up of standard rules permits, exemptions or exclusions—these are low-risk activities and a consultation on the conditions for them was undertaken in 2014-15—when we move to bespoke permits, clearly we need to be working extremely effectively to ensure that there is notification. For instance, local authorities will be notified of any bespoke permits that have the potential for a significant effect on the environment, which is very important indeed.

The noble Baronesses, Lady Parminter and Lady Jones of Whitchurch, asked about the review, and again I hope that I can provide some reassurance on this matter. As I said in my opening remarks, we will review the new flood risk activity scheme in 2019 as part of the general review into the environmental permitting regulations. Clearly, in the mean time, we will keep the activities permitted under exemptions, exclusions and standard rules permits, and their conditions, under review, and will introduce new exemptions or revising conditions if it is necessary or appropriate.

As to the purpose of the 2019 review, it must assess the extent to which the objectives of the review have been achieved, whether the objectives remain appropriate and whether they could be achieved in a less burdensome way. That is the basis of the review. But clearly, as experience of this new scheme comes along, I am sure the Environment Agency and others in Wales will reflect on this, as I said. The important thing is that there will be this opportunity for a general review in 2019.

Clearly, it is absolutely essential that no one unwittingly increases the flood risk, either for themselves or for others. The intention of this permitting scheme is to ensure that all activities are properly assessed and that action is taken if people act outside the conditions of a permit. These regulations remove the requirement to fill out unnecessary forms prior to carrying out low-risk activities and enable the Environment Agency and Natural Resources Wales to focus their resources on evaluating higher-risk activities.

I will reflect on all the points that have been made. I hope that I have covered them to your Lordships’ satisfaction, but this is a proportionate move in terms of seeking to direct our resources to where people and their property can derive the most benefit. For those reasons, I commend the regulations to your Lordships.

Motion agreed.