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

Lord Gardiner of Kimble Excerpts

Tuesday 22nd March 2016 Grand Committee

Moved by

[Lord Gardiner of Kimble]

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

[Lord Gardiner of Kimble (Con)]

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.

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[Lord Gardiner of Kimble]

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.