Incidental Flooding and Coastal Erosion (England) Order 2011

Lord Taylor of Holbeach Excerpts

Monday 17th October 2011 Grand Committee

Moved by

[Lord Taylor of Holbeach]

That the Grand Committee do report to the House that it has considered the Incidental Flooding and Coastal Erosion (England) Order 2011.

Relevant document: 28th Report from the Joint Committee on Statutory Instruments.

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

My Lords, Sections 38 and 39 of the Flood and Water Management Act 2010 allow the Environment Agency, local authorities and internal drainage boards to carry out works to manage flooding; coastal erosion or water levels for the benefit of nature conservation, including the conservation of the landscape); and the preservation of cultural heritage or peoples’ enjoyment of the environment or cultural heritage.

These powers were required because the definition of flood and coastal erosion risk management in Part 1 of the Act empowers authorities only to undertake measures to reduce the harmful effects of flooding or erosion; whereas some of the work that is required for environmental and recreational purposes involves the management of flooding, water levels and erosion to gain the beneficial effects of those processes.

Sections 38(8) and 39(12), commenced on 18 January this year, require the Minister to make an order applying the provisions of compensation, powers of entry and compulsory purchase in the Water Resources Act 1991 to Sections 38 and 39 of the Flood and Water Management Act, with or without modifications.

The purpose of the order is twofold: first, to protect the rights of occupiers and property owners who could be affected; and, secondly, to ensure that authorities have the necessary ancillary provisions. The order works by applying relevant provisions in the Water Resources Act 1991 with appropriate textual modifications to Sections 38 and 39 of the Flood and Water Management Act. However, it is important to understand that the provisions of the Water Resources Act are not amended by this order. I will now outline how each of the provisions will work and why they are necessary.

First, the order applies the compensation provisions in the Water Resources Act so that if any loss is suffered as a result of the use of powers under Sections 38 or 39, the relevant authority would be liable fully to compensate the injured party. This is necessary to protect the interests of landowners and occupiers. Before any work was undertaken, all necessary permissions and consents, such as planning permission, would need to be secured. Compensation would then be paid for any loss caused in the course of carrying out the work. Sums would be calculated on a case-by-case basis. If the person affected was not satisfied with the compensation offered, they could appeal to the Upper Tribunal.

Secondly, powers of entry are necessary to provide safeguards for landowners and occupier as well as for the authority, when an operator needs to undertake work on a third party’s land. The local authority or Environment Agency would write to the landowner or occupier notifying him of its intention to enter land. The notification would explain the nature and timing of the works and the entitlement to compensation in the event that any loss is suffered. The order requires a minimum notice period of seven days before entering agricultural land. This is a modification of how provisions in the Water Resources Act apply to Sections 38 and 39 of the Flood and Water Management Act. It makes the minimum notice period for agricultural land the same as that required for residential premises.

Compulsory purchase powers are needed so that an authority can, when necessary, obtain proprietary interests in land in order to protect its investment and ensure that works can be maintained. Powers of compulsory purchase can be exercised only with the express authority of the Minister. In all cases, the authority or agency would try to purchase by agreement before seeking ministerial authority to exercise its powers. The Environment Agency’s powers of compulsory purchase are limited in this order to purchases necessary for the purpose of enabling the United Kingdom to comply with its obligations under specified European directives—the water framework directive, the habitats directive or the wild birds directive.

Landowners and occupiers have rights under the Acquisition of Land Act 1981 to oppose the compulsory purchase. This includes provision for a public local inquiry, which may decide whether or not to allow the purchase or modify any particulars. If a landowner is still not satisfied, he may challenge the decision in the High Court.

I commend the draft regulations to the Grand Committee.

[Lord Teverson]

My Lords, I congratulate the Minister on his appointment. I know that that has been done on the Floor of the House by the various Benches, but I wanted to add my personal congratulations. It was an excellent appointment. I am sure that the good work that the noble Lord, Lord Taylor, has done will continue.

The Explanatory Memorandum refers to the Pitt review. Given that this is a short session, it would be useful to hear just of couple of headlines on how the Government view the Pitt review and whether they foresee any primary legislation coming forward in that area in due course.

The order makes a lot of sense, because it is clear that certain flooding is good for the environment. If flooding was prevented, there would be environmental and ecological degradation. Given that Sections 38 and 39 of the Flood and Water Management Act 2010 can be implemented only in relation to the powers of compensation, access and compulsory purchase, is the Minister satisfied that the right balance has been struck between there being a heavy responsibility on the authorities to undertake this work and the power of the landowner?

[Lord Knight of Weymouth]

My Lords, I thank the noble Lord, Lord Taylor of Holbeach, for the clarity with which he set out the order. That was most helpful given that it is very difficult to get any clarity from reading it. That is why we have an Explanatory Memorandum—I thank the Minister’s officials for the clarity with which that has been set out. I also congratulate the Government on listening to the concerns expressed by the National Farmers Union and the Country Landowners Association in bringing forward the order, which I certainly support.

Like the noble Lord, Lord Teverson, I was interested in paragraph 7.6, on consolidation, in the Explanatory Memorandum. I would be interested in any news on when that consolidation of the Act might happen in response to the Pitt review.

I tried to work out the taxpayer liability from the impact assessment. I understand that a notional 100 hectares is being discussed in the Explanatory Memorandum because it is difficult to predict how much land will be affected by erosion. Am I right in calculating that 100 hectares—the equivalent of one square kilometre—would generate a cost of £2,000 per annum, or have I misread the way the sums work? With that question, I am very happy for the order to go forward.

[Lord Taylor of Holbeach]

I thank noble Lords for their comments. I thank in particular the noble Lord, Lord Teverson, for his pleasant greetings. He asked how the legislation related to the Pitt review. He and I were both around when the Act on which the statutory instrument is based went through this House. He will know that it was a foreshortened Bill; the water provisions were relatively limited within it. The Government, however, have made it quite clear that there will be a water White Paper shortly—it is likely to be published within the next six months. We will bring forward a Bill, probably within this Parliament, to legislate in the whole area of water and water management. It is important not just for issues raised by Pitt but also for the consumer interest in water.

The noble Lord, Lord Knight, asked me about the cost of the provision. I can assure him that his estimate of £2,500 per annum is about right. He also asked whether the whole business of consolidation might be considered. The Government are still committed to this, but he will know how difficult it is to get legislative time. However, this is something the Government will seek to do, if at all possible, within this Parliament.

The noble Lord, Lord Teverson, asked me if the balance was about right. He would expect me to say, and I do, that I think the balance is about right. This is a question of a balance of differing interests, and the statutory instrument has got it about right. It does contain the necessary provisions to protect the interests of those who would be affected, and the minimum required to allow local authorities, internal drainage boards and the Environment Agency to use, where appropriate, the powers provided by Sections 38 and 39 of the Water Management Act.

I hope that I have managed to cover all the points raised. I am particularly happy to present this order. I beg to move.

Motion agreed.