Levelling-up and Regeneration Bill

Baroness McIntosh of Pickering Excerpts

Report stage
Wednesday 13th September 2023 Lords Chamber

[Baroness Willis of Summertown (CB)]

My Lords, I will speak very briefly, just to say a huge thanks to the noble Lord, Lord Randall, and the noble Baroness, Lady Whitchurch, for the three of us working together, and most of all to the noble Lord, Lord Benyon, for taking note and working this through. We have come to the point where we will have a good outcome for nature, but also a good outcome for the local economies and the people who work in these areas. I believe it is a win-win for national parks and areas of outstanding natural beauty in the UK.

[Baroness McIntosh of Pickering]

My Lords, I hate to dampen the overall enthusiasm, but I would just like to put in a word for the countryside and those who live and work in national parks and areas of outstanding natural beauty. They sometimes feel that their interests are overlooked. I am grateful to my noble friend the Minister in being mindful of their interests when he comes to draft his amendment, if he would do so.

[Baroness Pinnock (LD)]

My Lords, this is a good day. I thank all noble Lords who have worked hard with the Government to get to a place where there is landscape protection for those areas of outstanding natural beauty and national parks. I am fortunate to live in a place where I can easily get to three great national parks—the Yorkshire Dales, the North York Moors and the Peak District—so I particularly welcome, from a selfish point of view, what has been achieved here.

Turning to government Amendment 230A, I am pleased that the Government have closed a loophole here in the way that biodiversity net gain is measured. That is very positive. I applaud the whole biodiversity net gain approach.

I will make one comment about an issue which constantly concerns me when dealing with local planning applications: applicants trying to wriggle out of their responsibilities in biodiversity net gain. As the Minister will know, there is a hierarchy of how applicants can achieve biodiversity net gain—on site, close to, by, or as near as possible. If you live in a built-up area like me, “as near as possible” can be a big distance away. The town where I live—I guess this happens to small towns all across the place—will often see its biodiversity further depleted because the hierarchy allows applicants to put their biodiversity net gain at some distance away. I wonder whether the Minister could perhaps address that and enhance what I believe is a very positive approach adopted by the Government.

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Moved by

[Baroness McIntosh of Pickering]

231: After Clause 128, insert the following new Clause—
“Sustainable drainageThe Secretary of State must make provision under section 49 of the Flood and Water Management Act 2010 so as to bring Schedule 3 to that Act (sustainable drainage) into force in relation to England before the end of 31 December 2023, insofar as it is not already in force.”

[Baroness McIntosh of Pickering]

My Lords, in moving this amendment I will speak to it and to other amendments in this group. At the outset, I would like to declare my interests on the register, and also that I am co-chair of the All-Party Parliamentary Group on Water, and that I chaired a study into bioresources and was co-author, with Westminster Sustainable Business Forum, of Bricks and Water: Managing Flood Risk and Accelerating Adaptation in a Climate Emergency. Many of its recommendations lie behind these amendments.

I would like to speak to each of the amendments in turn. I thank my noble friend Lord Wigley for co-signing and supporting Amendment 231. This amendment, together with Amendments 232 and 245, are probably the key amendments in the group. I find it staggering that, whereas Wales implemented Schedule 3 to the Flood and Water Management Act 2010 as far back as January 2019, and in July published the first post-implementation review into Schedule 3, on SUDS, and how it had been implemented in Wales, we have still not implemented Schedule 3 in England. The reason why this amendment is required is that, since 2013, more than 10% of all new homes in England have consistently been built on land at risk of flooding, in particular flood zones 2 and 3.

I will quote briefly from page 47 of the revised National Planning Policy Framework, which was published this month. Paragraph 159 says:

“Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk (whether existing or future). Where development is necessary in such areas, the development should be made safe for its lifetime without increasing flood risk elsewhere”.


That simply does not go far enough. In essence, we have encapsulated in Amendment 232 a prohibition on building on residential flood plains. It is just not appropriate to continue to build on areas prone to flooding, displacing the water retained there into existing developments.

The reason why Amendment 231 is important is encapsulated by the work of CIWEM, the Chartered Institution of Water and Environmental Management, which came out with a report earlier this year, the findings of which are that

“Surface water flood risk is commonly managed by small teams frustrated by unclear duties and remit, complicated funding processes, fragmented data and a lack of capacity and skills”.


CIWEM has asked that the Government

“show greater leadership on surface water management … ensure that sufficient funding is provided to surface water management schemes … clarify and consolidate surface water management regulations, standards and plans”

and

“improve approaches to the collection and sharing of data and development of asset registers”.

Those conclusions chime with many of the amendments and recommendations set out therein.

As far back as 2007, Sir Michael Pitt said that there should be an end to the automatic right to connect: that you cannot have developments which are in inappropriate places but also try to connect to inappropriate piping. That is why Amendment 245 is crucial. It calls on water undertakers—in effect, water companies—to become statutory consultees. I am mindful of what my noble friend Lord Howe said in summing up a previous debate about the number of statutory consultees to date, but I believe it is appropriate for water companies to become statutory consultees so that they will have the power in the same way as the Environment Agency, which can recommend against a particular development being built in an appropriate place to make sure that it connects only where the infrastructure is appropriate. It is not appropriate to connect new developments to antiquated pipes that simply cannot take them.

In fact, Amendment 245 would help the Government, who were criticised as recently as yesterday by the Office for Environmental Protection for falling short in their understanding of its review of sewage spills over recent years. As well as Defra, the OEP has criticised Ofwat and the Environment Agency. Amendment 245 would assist the Government by ensuring an end to an automatic right to connect, which was called for as far back as 2007, following the floods, by Sir Michael Pitt.

Sustainable drains are part of this. Any new development should be built only if there are sustainable drains. They could be natural or physical, but they should ensure that the water is kept out of the combined sewers at all costs. This has to be front ended. We have to stop building three, four or five-bedroom houses, which multiply by three, four or five the amount of wastewater—let us call it what it is: sewage—which so often spills into the combined sewers, causing a health hazard, or on to public highways. Let us note that no highway authority is contributing in any shape or form financially to keeping the water out of those combined sewers. That is why Amendment 231 is required.

Amendment 232 would ban residential building on flood plains for the reasons I rehearsed a moment ago. That is a key amendment, along with Amendments 231 and 235.

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[Baroness McIntosh of Pickering (Con)]

I am slightly concerned because the legal position is very clear: any new development built after 2009 on a flood plain, whether functional or not, simply does not qualify for insurance. That is the purpose of the amendment. Unfortunately, if a house purchaser does not require a mortgage, they will not realise that they are not covered by insurance until such time as they are flooded, hence the need for the amendment.

[Earl Howe (Con)]

I am in some difficulty because the advice that I have received is different. I shall need to take advice and write to my noble friend on that point. I come back to what I said earlier: properties built since 2009 should be insurable at affordable prices because of the changes made to planning policy back in 2006. That is the position as we understand it.

With regard to small and medium-sized enterprise premises, Flood Re was designed to provide available and affordable insurance for households, but that does not include businesses. There is no evidence of a systematic problem for businesses at high flood risk accessing insurance.

Amendments 240 and 241 would require, first, the Government to establish a certification scheme for improvements to domestic and commercial properties in England made for flood prevention or flood mitigation purposes and, secondly, the Financial Conduct Authority to make rules requiring insurance companies to consider flood prevention or mitigation improvements that are either certified or planning permission requirements in setting insurance premiums.

We are committed to promoting the uptake of property flood resilience and are working closely with Flood Re, the property flood resilience round table and the insurance industry to determine how best to develop the mechanisms needed for insurers to take account of property flood resilience when setting premiums. Additionally, the industry is exploring how to improve standards and skills. For example, as part of the joint Defra and industry round table, the Chartered Institution of Water and Environmental Management is developing a certified competent PFR practitioner scheme to help grow the pool of trained professionals and improve the standards for the design, installation and maintenance of PFR projects.

Amendment 245 in the name of my noble friend Lady McIntosh seeks to make water undertakers—that is, water and sewage companies—statutory consultees on planning applications for major development that is likely to affect water supply. I am grateful to my noble friend for this amendment. Like her, I appreciate the important role of water undertakers in maintaining public health and ensuring access to clean water for communities. This is why in the other place the Government committed to consult after Royal Assent on whether we should make water companies statutory consultees, how that would work in practice and any implications flowing from that. As the DLUHC Secretary of State can make changes to the list of statutory consultees through secondary legislation, we do not need to use the Bill to do that. With that in mind, I hope my noble friend will not feel the need to move her amendment when we reach it.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful to all noble Lords who have spoken, particularly the noble Lord, Lord Wigley, for supporting Amendment 231 and the noble Baronesses, Lady Pinnock and Lady Hayman of Ullock, for their support. I will not go through each and every amendment.

Amendment 245 is a direct consequence of the Pitt recommendation to end the automatic right to connect. We are placing the Government, the department, Ofwat and the Environment Agency, but in particular the water companies, in a difficult position by forcing them to connect when the pipes simply cannot take the sewage. It goes into the watercourses right at the beginning of the process, then into the rivers and to the coast, and we know that everyone gets upset about that.

To correct my noble friend, the ABI briefing for today’s debate says: “It is important to note that Flood Re does not provide cover for properties built after 1 January 2009. The 2009 exemption is an extension from previous amendments between the insurance industry and the UK Government, which jointly agreed to purposely exclude these properties from the scheme to ensure that inappropriate building in high flood risk areas was not incentivised”. That is why I shall be pressing Amendment 232 to a vote.

[Earl Howe (Con)]

If my noble friend would be kind enough to give way, I will repeat that my advice is that properties built since 2009, as she said, are not eligible for Flood Re. However, they should be insurable via the commercial market.

[Baroness McIntosh of Pickering (Con)]

Hand on heart, I do not know of any commercial insurance company—I know others are better versed on that, including the noble Lord, Lord Hunt—that would offer that.

I will respond briefly to the comments of the noble Earl, Lord Devon, which raise wider issues. I believe we are fixated on new build, which is forcing people to build on flood plains. One measure would be to remove VAT on the renovation of houses and put VAT on new build. But I believe it is the responsibility of local authorities to rule out building on flood plains where the direct consequence of that will force floodwater and displaced water into existing developments. I do not think the National Planning Policy Framework adequately addresses that. I will not go on any further, except to beg leave to withdraw Amendment 231.

Amendment 231 withdrawn.

Moved by

[Baroness McIntosh of Pickering]

232: After Clause 128, insert the following new Clause—
“Residential buildings on floodplains(1) Local planning authorities must not grant permission for residential properties to be built on functional floodplains or areas at high risk of flooding.(2) An area is a functional floodplain or at high risk of flooding for the purposes of subsection (1) if the Environment Agency assesses it as a Zone 3a or 3b flood zone.”

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[Baroness McIntosh of Pickering (Con)]

My Lords, I would like to test the opinion of the House.