Designation of Features (Appeals) (England) Regulations 2012

Lord Greaves Excerpts

Tuesday 17th July 2012 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach)]

My Lords, the regulations are required to be made prior to the commencement of the substantive designation provisions under Section 30 of, and Schedule 1 to, the Flood and Water Management Act 2010.

The purpose of the appeal regulations is twofold. First, they will provide a safeguard for individuals whose property is affected by designation decisions and, secondly, they will ensure that risk management authorities are accountable for their decisions and will be open to transparent, legitimate challenge from individuals about their actions. These appeal regulations provide the owners of designated assets with the right of appeal to the First-tier Tribunal against the initial designation of a structure or feature, as well as against subsequent decisions relating to applications to alter, remove or replace a designated feature or to cancel a designation. A right of appeal is also provided against the issue of an enforcement notice for contravening a designation.

The appeal regulations provide that the First-tier Tribunal will hear all appeals under Schedule 1. In order to maintain the credibility of the 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.

Perhaps I can explain the nature of the provisions. Physical defences, such as walls, embankments and natural features, are relied upon to deliver much of our flood and coastal erosion risk management. Whole communities often rely on these features and base their flood protection strategies on the assumption that they will remain in place and divert water. However, in the 2007 floods it was discovered—too late—that there were alterations to some of these third party assets and flooding resulted, for example in Sheffield and Chesterfield.

In the Flood Water Management Act 2010, provision has been made in Section 30 and Schedule 1 to allow the Environment Agency, local authorities and internal drainage boards to designate third party structures or features which affect flood or coastal erosion risk. Designation requires the owner to seek consent from the appropriate risk management authority before altering, removing or replacing the structure or feature.

These provisions are required to prevent uncontrolled damage or removal of structures or natural or manmade features of the environment that perform a flood or coastal erosion risk management function. Further details on the designation process, including appeals, can be found in the public information leaflet and the guidance document produced by Defra and laid for information with these appeal regulations.

The requirement to provide a right of appeal by way of these regulations is contained in paragraph 15 of Schedule 1. Section 30 and Schedule 1 were commenced in April last year in so far as they provide the power to make the regulations. The substantive provisions relating to the regime for the designation of structures or features cannot be implemented without the appeals regulations. The designation regime provides protection for and restrictions on private assets in the public interest. The appeals regulations provide protection for private rights affected by designation and it is a necessary balance that they do so. These appeal regulations are a necessary and appropriate statutory obligation. I therefore commend the draft regulations to the Grand Committee.

[Lord Greaves]

I do not have a great deal to say about this on behalf of the Liberal Democrats. The regulations, which the Minister has explained very well, come from the Flood and Water Management Act. I suppose this little gathering today allows a certain amount of nostalgia from some of us who were involved in the passage of that Act, as often happens with these orders. These are sensible and welcome provisions. Does this mean that the designation of features can now go ahead or is there anything else standing in the way before this process takes place? As the Minister said, it is a process that was found lacking as a result of the experience in 2007. It is welcome that the recommendation from Sir Michael Pitt’s mammoth report is now filtering its way—if that is the right word to use in connection with water—down the system and that we are now on the point of approving these regulations, which we certainly support.

[Lord Knight of Weymouth]

My Lords, as I discovered to my cost 10 days ago, I am a property owner in an area that gets flooded and there may be something on my property that at some point might get designated, so I declare that from the outset. Clearly the instrument is associated with the Flood and Water Management Act 2010, which established a process where the Environment Agency, local authority or an internal drainage board could deem a structure part of the built environment if it was acting as a flood defence, even though it might not necessarily have been designated or constructed for that purpose. We have heard that from the Minister. This is a very positive and necessary step forward in protecting our flood defence assets across the country.

I certainly know from where I live down in Dorset, where the River Wey and its tributaries got deluged 10 days ago and we had extensive flooding, that the complex arrangements of culverts and of different parts of the built environment in the Weymouth and Upwey area are interfered with at our risk. I know that the Environment Agency has done various bits of work over the last 20 years to mitigate the risk and I do not think there is much it could have done about it given the quantity of rainfall. However, I am certainly supportive of wanting to protect those assets as long as property owners get some advice from the Environment Agency, local authority or internal drainage board as to what they are dealing with. I think that this designation process will certainly help.

The regulations aim to strengthen the existing standard of protection for flood defences for third-party assets and to allow local authorities and drainage boards to extend protection of those assets, so we welcome the instrument. It is an important part of establishing a more transparent and accountable way of protecting those defences. However, it will do little to recover the losses the community will suffer from the cuts to flood defence spending, which concern me. There have been cuts of 27% despite the fact that we know how valuable such an investment is—every pound spent on flood defences reaps £8 in investment. I am increasingly concerned about our resilience to flooding as we move into the winter. Certainly, in my area the Environment Agency tells me that it looks as if we might go into the winter with winter levels of groundwater. That makes us extremely vulnerable as we would normally expect much higher quantities of rainfall then. That is then set against a backdrop that I see in the Defra business plan for 2012-14 of a 7.5% reduction in staffing costs across the Defra family.

I do not want to see the Environment Agency losing any more of its staff around flood resilience. I already know from the flooding incidents 10 days ago that it was wrong-footed by a Met Office forecast, which meant that the south-west people were flown up to Newcastle because they thought the flooding was going to be in the north-east and not in the south-west. The people we needed on the ground to provide proper warnings and safeguards to us were, by and large, not there. That suggests that we are already at the most extreme end of our resilience in terms of staffing, and I will be interested in the Minister’s comments on that.

I welcome progress on the implementation of Sir Michael Pitt’s recommendations, however slowly they may come into force, and I welcome the establishment of the First-tier Tribunal for the appeals. I do not oppose the structure, which seems sensible. I understand that the designation process will be risk-based as well as targeted and that the designation decisions will be based on what the designation authority considers to be appropriate. Can the Minister therefore explain to us on what information and guidance provided to local authorities and internal drainage boards those designation determinations will be made? If there is to be a means to appeal such designations, there must be an assumption that sometimes those authorities will get the decisions wrong, so it is of the utmost importance that the Government make it absolutely clear how these bodies should make these decisions.

In conclusion, we do not oppose the instrument establishing an appeals process but we would like the Minister to explain briefly the guidance that will be provided to authorities to ensure that decisions to delegate flood defences as such are made according to clear guidance to ensure the number of appeals to the tribunal is kept to a minimum.