Housing and Planning Bill

Lord Krebs Excerpts

Wednesday 23rd March 2016 Lords Chamber

[Baroness Parminter (LD)]

My Lords, I am grateful that we have the opportunity to discuss these amendments this evening. While my name is to both of them, I shall speak only to Amendment 119.

The Government have rightly launched a national flood resilience review, which is due to report in the summer, but that review will come too late if the Bill paves the way for 1 million new homes without due regard for their flood resilience. New homes increase flood risks for developments and for surrounding communities. Concreting over a catchment speeds up run-off, increasing the likelihood of flooding. After the 2007 floods, the flooding review by Sir Michael Pitt recommended sustainable drainage as a way forward, which moved the Government to bring forward the Flood and Water Management Act. It was suggested in the Act that there should be further use of SuDS, with soakaways such as swales, ponds and other natural means to ensure that sewer networks were not overwhelmed during periods of heavy rainfall. We all know that well-designed SuDS can contribute to water quality, to coping with overheating and to biodiversity. But this Government delayed implementation and then abandoned that approach altogether, in favour of an “expectation” that major planning applications would include SuDS.

This was not because of the costs. Defra recognised, in its own consultation document, that,

“sustainable drainage systems are generally cheaper to build; and maintaining them will be cheaper (or need be no more expensive), than the … cost … required”,

in conventional drainage. The result of this expectation that the SuDS approach would work is that last year Barratt Homes, the UK’s leading housebuilder, included no provision whatever for sustainable drainage in a third of its developments. The Committee on Climate Change has analysed 100 planning applications in areas of flood risks and found that fewer than 15% proposed SuDS. If the Government wish to challenge that evidence, what monitoring are they doing at a national level of the uptake of SuDS?

The National Policy for the Built Environment Committee of the House of Lords, on which I and other noble Lords sat, has looked at this issue. In its report last month, it argued that the Government should take a more proactive approach to the provision of SuDS. In legislating to provide for new homes, we must seek to contain the time to plan for them—absolutely. But we need a process ensuring that new homes are built to a standard that will protect them from flood risks and not exacerbate risks for established communities. I shall not list the many organisations which have written to the Minister in support of this amendment, because we do not have time. I will merely beg to move and hope that other Members might pick up some of the points that I know need to be raised.

[Lord Krebs (CB)]

My Lords, I shall speak briefly to this because the noble Baroness, Lady Parminter, has made most of the points that I would want to make. My name is also on Amendment 119 and I would like to go on to refer to Amendment 120, on which my name comes first. But to add briefly to what the noble Baroness has said, the real problem is that developers still have the automatic right to connect to the existing sewerage system. We know from estimates that more than half the existing sewers are already overloaded. While developers have the automatic right to connect, they are not incentivised to look at other ways of managing surface water flooding. Furthermore, when SuDS are installed, there is no clarity in the current regime about who should pay for the maintenance once they have been built. In any case, the current guidance applies only to developments of 10 homes or more, so small urban infill developments which could be creating some of the biggest long-term problems are not covered. Around 100,000 minor planning applications are approved each year which are not subject to the new safeguards.

So the aim of this amendment is to ensure that SuDS are the default option in new developments and to help achieve this by removing the automatic right to connect to existing sewerage systems. Connecting new developments to existing sewers should be the absolute exception, once other options have been exhausted.

I turn to Amendment 120 on developer liability. This amendment focuses on the long-term costs for society arising from continuing development in the flood plain and presents a simple, workable proposal to address the current lack of incentive for developers to make new properties safe and resilient to flooding. We know that, at the moment, more than 100,000 homes have been built in the flood plain since 2008—28,000 of these in areas at a greater than one-in-100 annual chance of flooding, taking into account the protection provided by any flood defences. The consequences are that, in the long run, owners of new homes are being exposed to unnecessary flooding risk.

A one-in-100-year chance sounds very small. We have to remember that this is the chance of flooding in a particular place. If there are 100 such places, then there is the likelihood that someone will get flooded every single year. In fact, in this century, we have already had 12 significant flood events in 15 years. If we carry on as at present, we can more or less guarantee that someone, somewhere, is going to suffer the trauma of flood damage each year.

Data are not collected on whether or not new homes that are built in flood plains are made resilient. I declare an interest as the chairman of the adaptation sub-committee of the Committee on Climate Change As has already been mentioned by the noble Baroness, Lady Parminter, our data suggest that fewer than 15% of new homes have been built with sustainable urban drainage systems.

Are we putting too much faith in flood defences to protect new developments, when they are typically built to a one-in-100-year standard? There is evidence that developers and planners are taking what might be called a compliance approach to flood risk— following the process but putting too much faith in limited protection from flood defences and not taking into account the uncertainty in even the best flood models.

A recent example, of which I am sure noble Lords are well aware, is Bridge End Court, a residential care home and sheltered development in Cockermouth. It was built in the meander of the River Derwent, on land that had flooded badly in 2009, on the very edge of a flood zone 3, where it would not have been deemed appropriate development. After the 2009 flood, the local authority had the chance to require the development to go elsewhere but it allowed it to go ahead in the same place. In spite of the ground floor supposedly being set above the height of even a one-in-1,000-year flood, the care home was flooded in December and the residents had to be rescued.

What constitutes a one-in-1,000 standard is highly uncertain. This is where developers come in. Developers are required to produce a flood risk assessment for a site, but they bear no liability if they take risks or simply get it wrong. The assumptions in the flood models that underpin a flood risk assessment can be selected either to increase the assessment of flood risk or to make it appear lower than reality. I should emphasise that I have seen no evidence that developers are manipulating flood risk assessments but, in principle, they could.

It is worth noting some Environment Agency figures. The Environment Agency has to be consulted on developments and it objects to about 3,000 applications per year on grounds of flood risk. In a sample of nearly 1,700 objections between 2009 and 2013, 20% of those objections were because the developer had produced no flood risk assessment whatever and 54% of them were objected to because the flood risk assessment was unsatisfactory. Among the reasons they were unsatisfactory were that they did not take into account future sea level rise, future increases in river flows or future increases in surface water flooding.

--- Later in debate ---

[Lord Porter of Spalding]

My Lords, I do not know how to add this new interest into the debate, but at some point, I will have another company set up that will put me back into doing small-scale development with my son-in-law. The accountants are working on it now, and I am going to put this in the register as soon as it is done, but noble Lords need to know it now, because I am going to speak specifically from a developer’s point of view—even though, technically, I am not yet a developer. I am also going to speak as the leader of South Holland District Council, which covers an area that, if we were not allowed to build on flood plains, would become a ghost town, because we are on a flood plain. We would build nothing anywhere in my patch if we followed the idea that, notionally, the designation of a flood plain by the Environment Agency was true and accurate.

We have not flooded since 1947; adequate flood management schemes can deal with it. Amendment 120 would create companies set up to build one development that would then go bankrupt—and, as the noble Lord, Lord Campbell-Savours, said, on that basis we would have to insure against that, so that would add more expense in some areas disproportionately to others.

If I remember rightly, where we are sitting now is also on a flood plain, so all of the people around this area would also be moved out of town if we applied that. We cannot be frightened by water; we have to manage it properly. We cannot retreat from it. We are people and we can deal with it, and we cannot deal with it just by saying, “You can’t build anything anywhere”, which Amendment 120 would have us do; or create perverse incentives to get people to set up businesses that are going to go out of business every time they earn some money.

[Lord Krebs]

My Lords, perhaps I may respond briefly to that last comment. I do not think that Amendment 120 in any sense precludes building on a flood plain. It simply asks—and provides a possible answer—to the question of who should bear the liability if somebody buys a house that has just been built in a flood-risk area and that house floods. While it might be true that, in the noble Lord’s particular area, there has not been a flood since 1947, that does not mean to say that there will not be a flood next year. The people who bought homes that were built recently in those areas should have some form of protection. That is what the amendment is trying to provide.

[Baroness Williams of Trafford]

My Lords, I shall deal first with some of the latter remarks. Following December’s floods, it was clear that the rules that we thought applied did not apply, and that what we thought were blip events were becoming trend events. Therefore, there were lessons to be learned from both last year’s floods and the previous one-off-event floods. Following the December events, we established the National Flood Resilience Review, led by Oliver Letwin, to assess how the country could be better protected from future flooding and increasingly extreme weather events. This review will identify any gaps in our approach and pinpoint where our defences and modelling need strengthening, allowing us to take prompt action.

I understand the intention behind Amendments 119 and 120, but Amendment 119 seeks to place unnecessary provisions into the Bill, as national planning policy has already been strengthened to deliver sustainable drainage systems, and there would be problems with implementing the second proposal.

On Amendment 119, following enactment of the Flood and Water Management Act 2010, proposals to implement the provisions under Section 32 and Schedule 3 were put out to public consultation. The response to that consultation gave rise to a number of issues. These included the potential impact on the delivery of new development under a system that required the approval of sustainable drainage systems under a consenting regime separate from that for approving planning applications. There were concerns that this could add undue delay to the consenting process and impact on the speed of planning decisions.

The coalition Government listened to that response and in the autumn of 2014 put forward for consultation a new proposal to make better use of the existing planning system to deliver sustainable drainage systems, otherwise known as SuDS. In the light of the response to that consultation and a subsequent government announcement in December 2014, national planning policy was strengthened with effect from April 2015. The strengthened policy makes clear the expectation that SuDS will be provided in all major new developments, such as developments of 10 dwellings or more, unless demonstrated to be inappropriate, and it ensures that clear arrangements are in place for ongoing maintenance over the lifetime of the development.

This strengthened policy applies alongside the existing policy expectation that SuDS will be given priority in new developments in flood-risk areas, as well as the drainage requirements of building regulations. Despite the strengthened planning policy, the amendment would require provisions for a new consenting regime for sustainable drainage systems to be brought into effect before important provisions in the Bill could come into force.

We need to give these new arrangements time to show that they can work effectively. We are meeting key stakeholders to gauge their views on how the changes are bedding in, and we will undertake similar reviews at intervals in the future. The noble Baroness, Lady Young, asked where the reviewing process had got to. As I said, we have taken the views of key stakeholders and we intend to have a more in-depth review in a year’s time, which will be two years post change.