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

Alex Cunningham Excerpts

Tuesday 8th March 2016 General Committees

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship this afternoon, Sir Edward. I am pleased to have the opportunity to share my thoughts on the regulations and to follow up with the Minister on several points that I have already raised in the House through other means.

The issue of flooding and the need for better water management that comes hand-in-hand with it have regularly been in the headlines since the beginning of December last year. Rightly, much consideration has been given to the issues, including how best to minimise flood risk. It is therefore timely that the regulations have finally come before us today, with the relevant consultation having concluded some 12 months ago. The explanatory memorandum published alongside the regulations is helpful in setting out their objectives—the Minister has outlined them—which are

“to reduce administrative burdens on applicants undertaking activities which require prior approval because they may impact on flood risk or flood risk management.”

It is important to set the issues we face today in the context of what has gone before, so that we can examine the regulations and seek assurances that they do not compromise the effects of positive past measures.

By way of background, prior consent has been required before certain activities are undertaken on main rivers since the passage of the Water Resources Act 1991, with various byelaws having since been passed by the Environment Agency and Natural Resources Wales. It is perhaps appropriate to highlight up front that one of the core functions of the Environment Agency is to

“operate at the place where environmental change has its greatest impact on people’s lives”,

including undertaking work to

“reduce the risks to people and properties from flooding”.

Currently, the dredging of silt, sand or other material from main watercourses is regulated under the Environmental Permitting (England and Wales) Regulations 2010, as amended. We need to be assured that the proposed changes will not compromise what those existing regulations achieve.

The regulations before the Committee—made under powers in sections 61 and 90 of, and schedule 8 to, the Water Act 2014—will establish a new scheme under the environmental permitting framework to regulate activities on or near watercourses in England and Wales. More specifically, the regulations provide for the regulation of “flood risk activities”, replacing the current flood defence consent scheme. Managing such risks is a vital role of both the Environment Agency and Natural Resources Wales respectively. Without such regulation, a host of activities, when carried out on or near main rivers and streams, can significantly affect flood risk. It is a well established principle that, in an effort to avert that possibility, flood defence consent must be sought. Without such regulation, watercourses and flood plains could become blocked or constrained by works, leading to flooding and damage to other property that might otherwise not have occurred. In a similar vein, flood defence structures might also be damaged with the same effect, or maintenance activities could cause environmental harm.

In short, such construction works and maintenance activities, when poorly executed, can increase flood risk, directly cause and/or exacerbate flooding, and cause damage to the surrounding natural environment. It is for precisely those reasons that prior permission, in the shape of flood defence consent, is required before works can legitimately be carried out. Consents are issued with precise conditions to ensure that the prescribed activities are carried out in such a way that increased flood risk or the likelihood of damage to the environment are minimised.

The Environment Agency and Natural Resources Wales issue some 5,000 flood defence consents each year, which is clearly no small feat, and it is logical that both bodies would seek to streamline their processes to lessen the administrative burden not only on themselves but on applicants, too. Indeed, the Environmental Permitting (England and Wales) Regulations 2010 did precisely that, rationalising various permitting regimes into a common platform that is easier to understand and use. Measures to progress that further and better harmonise the consent process are uncontentious. There is an element of common sense in allowing applicants who would otherwise require several permits for activities falling under various regulations on a single site to complete a single application and to be issued with one permit. The Minister has covered that.

With further Government cuts to the Department and to the Environment Agency, and with the huge strain that the organisation is under as a result, it is hardly surprising that further efficiencies are required. Fewer boots on the ground or, as my researcher suggests, wellies in the mud, inevitably mean that the organisation’s capacity will be stretched to its limits—some would suggest beyond them.

The regulations will allow the Environment Agency and Natural Resources Wales to concentrate their resources, as the Minister said, on what are deemed to be higher-risk activities. However, I would welcome it if the Minister explained risk a little more. How, for example, is risk calculated and modelled in these instances? What factors are accounted for when producing such calculations, and who will have responsibility for making the final judgment on whether an activity is high or low risk?

If streamlining processes is the key aim, surely such assessments cannot be conducted on a case-by-case basis, as doing so would require a greater time commitment than the current regime. Going one step further, how will the conduct of low-risk activities be monitored to ensure conformity with the prescribed conditions? What retrospective assessment is being considered to ensure that risk was properly assessed prior to works being carried out?

I will not need to remind the Minister that, in answer to one of my written parliamentary questions last month, he stipulated that:

“The Government believes that flood risk management…should be carried out by those best placed to do it.”

Who is best placed to carry out such flood risk management work? I am sure he will agree that risk, whether determined as being high or low, should be mitigated to the highest possible degree wherever it is identified, yet the role of the regulators is being restricted on that front.

It is also important that the Minister clarifies how his Department will develop and maintain effective national strategies and approaches to flooding and flood defences when activities such as these are being signed off without consent. Building on that point, I would be grateful if he could outline what thought he has given to granting further powers to expert groups, such as internal drainage boards and local authorities, to maintain watercourses.

The Minister knows that he would not be in a debate with me standing opposite him if I did not raise the issue of resources. Yesterday, he spoke of his hopes that the new regulations relating to waste management and the circular economy would save money for local authorities. Today’s regulations also appear to aim to reduce burdens in different parts of the system, but can he give a categorical assurance that organisations such as local authorities, drainage boards and others required to deliver more will have the resources to carry out the role he will require of them?

Finally, what plans does the Minister have to review the impact of the changes in the regulations on our communities and environment, so that Parliament can assess whether they are working or whether greater controls will be required in the future? I look forward to hearing his response.

--- Later in debate ---

[Rory Stewart]

My hon. Friend asks a very good question. The answer is that we began the communication process through a highly publicised speech given by the Secretary of State at the Oxford farming conference, which got a lot of coverage in the agricultural press. There is increasing awareness now among the farming community of this future exclusion, but clearly we can do more. We will do our best to work with my hon. Friend, with the Chair of the Environment, Food and Rural Affairs Committee, and particularly with the trade press, to make sure that farmers are now aware of the new procedures. In my experience, farmers generally cotton on very quickly to these kinds of legislative changes, but I am happy to take up the challenge if they want.

I will move forward to address the questions put by the hon. Member for Stockton North. Regarding the question of the calculation of risk and who calculates it, essentially that process has been led by water engineers within the Environment Agency. Some of the exclusions and exemptions are genuinely very low risk indeed. If we look through the list of the exclusions, it was necessary in the past to obtain a bespoke permit, in theory even if someone was just putting a floodgate over their house. Ambiguities within the legal drafting meant that anything that could possibly affect the flow of water, such as someone not letting water into their front door, could have required a bespoke permit.

In the past, putting a sign into a river required an entire bespoke permit. Now, there is absolutely no engineering evidence whatsoever that sticking a small pole into a river will have a significant impact on flooding downstream. However, to reassure the hon. Gentleman, I will point out that the process is very much driven by a cautionary principle—people are being very risk-averse. We have made sure that we have excluded only the very lowest risk activities. Again, registered exemptions are very carefully controlled. In fact, we have had some complaints from people who would like to see us go much further.

The reason we have had to be quite careful is that the measure has to apply to all rivers across the country; it is not possible for us to come up with a single set of rules without being very cautious. For example, there is a standard exemption for scaffolding to extend across 10% of a river. People come back to us and say, “Well, that doesn’t make much sense. If my river is only eight miles wide, you are allowing me to put only 0.8 meters of scaffolding into the river.” The reason for that is that we have to make sure we are very, very cautious, which is why nearly half of these cases will still require bespoke permits. We have to deal with the fact that every river is different, every condition is different and the hydrology of these different river systems is very testing. However, in straightforward cases—a noticeboard or a ladder going into a river, or a simple piece of work on banks, as mentioned by the hon. Member for Bassetlaw—we have taken the view that a calculated risk makes sense.

Finally, on the question of who is best placed to make such decisions, whether on IDBs or the action of local councils, the draft regulations apply primarily to main rivers, which is to say the rivers and streams that we believe have a significant impact on a large degree of flooding. Most of the local authority responsibility will relate to flood risk in general and include a lot of rivers that are not classified under the regulations as a “main river”.

In terms of the resources to be brought to bear, we believe that rather than imposing more costs on individuals, the Environment Agency should be saved about half a million pounds a year—a significant saving—and businesses about £14 million over 10 years. Those financial savings are only the beginning, from my point of view; the real saving is getting rid of the forms. Nothing is more eroding to trust in Government in the general sense of energy and common sense in action than having to fill out forms to put a ladder or a simple signpost into a river.

[Alex Cunningham]

I thank the Minister for his explanation. None of us doubts the wise measures in place as far as the smaller things are concerned, but I am concerned about monitoring some of the more extensive work that will not require the same level of permit as in the past.

[Rory Stewart]

In order to deal with the serious stuff, which is to do with major works on bridges, culverts, banks, utility crossings and outflows—water coming in—a full, bespoke Environment Agency permitting system is in place and covers nearly 50% of the applications. Officers in such cases will require full plans, drawings and impact assessments, will have to inspect the individual rivers and will look in detail at the proposed works case by case.

[Alex Cunningham]

I am sorry—I think I just invited the Minister to repeat what he said earlier—but I am talking about what will not require a permit under the regulations. He started to talk about the more extensive work, but he has addressed that; I am asking about the marginal stuff, where there will be changes. For example, 1.5 km of river is a fairly extensive piece of river, so I am interested in what monitoring of that will be like in future, so that we know the new regulations are working.

[Rory Stewart]

Dredging and the 1.5 km are perhaps a misleading example. That is about maintenance of silt levels in existing agricultural drainage ditches in areas that are not of environmental importance. The rest of the things that are excluded are, genuinely, very minor works indeed. We are literally getting down to the level of a ladder or a sign board being put daily into the river; a service crossing with an existing structure, or, in other words, someone putting an electric wire through a pipe that already exists in a bridge; a 48-hour temporary trial pit; an investigation borehole; or clearance of sediment traps. For anything above that, such as exposed gravel removal, a large outfall or headwall, or a large habitat structure, the full regulatory system remains in place. I hope that reassures the hon. Gentleman and the rest of the Committee. I commend the draft regulations to the Committee.

Question put and agreed to.