Clause 26 - Claims arising out of water abstraction

Water Bill [Lords] – in a Public Bill Committee at 4:00 pm on 18 September 2003.

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Photo of Norman Baker Norman Baker Liberal Democrat, Lewes 4:00, 18 September 2003

I beg to move amendment No. 201, in

clause 26, page 31, line 29, at end insert

'or to their property or to both'.

First, I want to check that ''damage to another person'' includes, by definition legally, damage to his or her property. I am sure that the Minister can assure me that that is covered, but I just wanted clarification. Secondly, do the rights included in the clause also apply to public bodies? In other words, will the definition of a person include a public body?

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

The clause introduces the right to sue an abstractor who has caused damage, whoever that abstractor is. Abstractors will therefore need to remain alert to the possibility that they are causing harm to others—other abstractors or the environment—if they are to avoid being subject to claims for damages. That ensures that the law relating to water abstraction is consistent with long-established rules in other areas requiring property owners and other occupiers or users of land to respect the interests of neighbours in terms of their water abstraction and the impact on the land. Subsidence could be covered by this, too. That is the intention. The amendment is unnecessary, as legally loss or damage to a person includes that person's property.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

That has answered one point. Just for clarification, could damage to another person be damage to a public body?

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I think that damage to a public body would be covered. According to the definition and the way in which the Bill is applied, a ''person'' relates to property and can also relate to a public body.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

That is helpful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I beg to move amendment No. 41, in

clause 26, page 31, line 31, at end insert 'and the Environment Agency'.

The amendment is not particularly complicated. It would include the Environment Agency as someone who could be pursued by someone who had suffered loss or damage. The Minister is unlikely to welcome it, but it would give abstractors extra recourse.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

In granting a licence, the agency will not have considered the effect of an abstraction on property of third parties, only on water resources. That is its responsibility and all it can do, in a sense. It is charged with considering water resources and the environment. It is also important to bear it in mind that it is the abstraction of water that can cause damage, irrespective of whether it is under licence. The agency does not have a duty to have regard to any potential third party damage caused by abstractors, and that would be inappropriate. It would be inappropriate for the agency to regulate relationships between property owners or to assume the liability that abstractors should bear. It is not appropriate that the agency should be liable for any such damage, because it is the abstraction that causes the damage. The agency considers the water resources, the environment and the impact on other abstractors, but it cannot be expected to judge other potential damage. That is a matter for the abstractor, and that is where the liability should rest.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

The Minister is right, but there is a problem, which is that when one applies for a licence, the understanding is that if a licence is granted, the licence grantor has taken some responsibility for checking what they are allowing to take place. That means that if an abstractor obeys all the criteria of his licence and does what he is supposed to do and there is subsequently a claim, the licence grantor has some responsibility to have ensured that it was safe to carry on abstracting.

I recognise that an abstractor will be responsible for any damage caused, but at the same time there is a duty on the Environment Agency to take some responsibility when granting a licence. I do not expect that the Environment Agency would be sued, but it is important that it has responsibility. That is why I tabled the amendment.

Amendment negatived.

Photo of Robert Key Robert Key Conservative, Salisbury

I beg to move amendment No. 224, in

clause 26, page 31, line 40, at end insert—

'( ) For the purposes of this section ''loss or damage'' shall not mean any diminution in the value of land'.

The watercress beds of Hampshire and Wiltshire were developed more than 100 years ago. As a result of the construction of the railways and access to new markets, there was new pressure on watercress growers. They needed more watercress, and the production had to be more consistent throughout the year. It was not just a question of gathering it conveniently in bunches and using it locally. The whole operation became more professional.

The watercress growers chose their location because of the natural springs, on which they could rely for particularly clean water to grow their watercress. When they needed to expand, they stayed put and used more water. Someone who is running a watercress business will not want to grow watercress in the river, where everything gets washed away, but in very broad, shallow growth ponds through which water trickles.

An example is Chalke Valley Watercress Ltd. in my constituency, which has been in the Hitchings

family for at least four generations. It currently has a licence to abstract 1.128 million gallons of water a day—5,127 cu m. However, water levels vary hugely. When high flows come out of the spring, it can get 4 million gallons a day, which is four times the abstraction licence. On the other hand, at dry times of the year, the flow drops right down to a mere 200,000 gallons, which is mostly lifted by pumps. There is a huge variation in the amount of water being lifted.

If watercress growers on chalk landscapes in the middle of a tourist area get very low flows and start pumping, the winter bourne—the stream—dries up completely. There have been cases of bed and breakfasts, pubs and hotels trying to sue for loss of amenity. The stream in front of the B and B suddenly is not there any more, and its guests are, naturally, aggrieved. That is the catch.

Clause 26 provides a new means for persons who suffer loss or damage arising from the abstraction of water to bring a claim against the abstractor. Previously, the grant of any licence by the Environment Agency was a defence that was accepted in law. Any action had to be taken against the Environment Agency for issuing the licence in the first place, not the owner of the abstraction licence, as will be the case now.

The watercress growers are concerned that they might be exposed to claims to which previously they would not have been exposed, from people who perceive that their business or property may have been adversely affected by variations in the flow of watercourses and winter bournes; hence, the wording of the amendment. This is a probing amendment. The watercress growers and I would be very grateful if the Minister would set out the reasons why they will no longer be covered and why they may now be exposed to a new legal liability.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

The principal reason is consistency of approach in legislation. The amendment, as the hon. Gentleman rightly stated, would ensure that third parties could not sue abstractors for damage that results in the diminution of the value of the land. That would nullify the current purpose of the clause. It is intended to provide a remedy for third parties who suffer loss or damage as a result of any abstraction. Many relevant losses may well relate directly or indirectly to the value of land, such as harm caused by subsidence. It would not be fair to the owner who had suffered damage to limit losses in this way. We are trying to look at all eventualities. I know that the hon. Gentleman was concentrating specifically on watercress.

Currently an abstractor has a defence against legal action if the abstraction was made in accordance with the provisions of the licence. That is what we are trying to change. In no other similar licensing system does a licence provide a defence against legal action between individuals.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs) 4:15, 18 September 2003

If I painted my house a colour that my neighbours considered repulsive, it would affect the

value of their properties, but I would be allowed to do it because I do not require planning permission to paint my house. The Minister has missed the point about this amendment, which is very valid. Diminution in the value of the land is not the same as loss or damage. If the stream in front of someone's house dries up, there is no damage. Their only claim against the abstractor would be for a loss of value in the land. That is the difference.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I understand that point, but one would be pushed to prove that there is loss or damage to the land if a small stream dries up. Again, I am not a lawyer. That is a matter in the end for the courts to decide.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I am listening to this with care. I am slightly concerned. The licence regime to date has been rather looser than the licence regime that the Minister wants to put in place. He wants to tighten it up with time-limited licences and more consideration. One might argue from a legal perspective that a new licence should give more protection than an old licence. The abstractor who has gone through the process of getting the new licence would have reason to conclude that there would be no external damage because the Environment Agency had expressly authorised it.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

We are back to the problem raised by the hon. Member for Leominster. The Environment Agency is not equipped to make those assessments. Its responsibility is limited to the environment, water management and the effect on abstractors. Unless streams dry up seasonally, which many do, draining a stream is not desirable. I do not see how one could blame an abstractor for affecting such a stream if it is a normal seasonal flow.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

The Minister said earlier that he was not aware of a situation where a licence granted is a defence in law. I am not sure that that is true. If an ice cream vendor is granted a licence to sell ice creams from a van outside someone's house, the owner of the house has no comeback, because the vendor has been given permission by the council to stop there. That is one example. In my constituency, someone will probably get a theatre licence to hold an open-air performance very close to some houses. I am not aware that people in those houses will have any comeback, because the organisers have gone through the process and gained a theatre licence from the local council. I believe that licences can be a defence. People cite them when they are subject to legal challenge.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

After saying that there were cases of exemptions, the hon. Gentleman then convinced himself that there were not. The examples he gave were not very good. A better example is planning permission. Planning permission does not allow a developer to cause damage to other property owners, such as by digging foundations. Other owners would have recourse in law for the damage caused by that. A licence to discharge pollution does not allow licensed polluters to cause damage to other people by that pollution. There is still a liability on them. The clause simply brings the licence within the same remit as that which applies to other licences. That is not a particularly sinister suggestion, but again it requires

a focus on those people who hold abstraction licences, to ensure that their activities are not damaging. That is one of the functions of the Bill in relation to sustainable management. Therefore, in the interests of sustainability and preventing damage, I hope that hon. Members will support the clause and not the amendment.

Photo of Robert Key Robert Key Conservative, Salisbury

I am grateful to the Minister. There is no doubt that a threat to rural industry that has been around for a long time has been exposed. As I said, the amendment is a probing one. I shall go away to seek advice, and there will obviously be considerable discussion about what has been raised. If the winter bourne dries out naturally, there is no recourse, but if it dries out because someone is pumping to the limit allowed by the licence, they can now suddenly be sued. That is quite new. I feel uncomfortable when Parliament seeks to create such new situations, however logical it might be, which expose people to such danger. There is something not quite right, so I suspect that we shall have to return to the matter. Despite that, however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I beg to move amendment No. 52, in

clause 26, page 32, line 15, at end insert—

'(8) It shall be a defence to proceedings brought under this section that the abstractor was abstracting the water in accordance with the provisions of a licence granted under this Chapter.''.'.

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

With this it will be convenient to discuss clause stand part.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

My hon. Friend said that we would return to the issue, and I think that we are doing so immediately with this amendment. The argument that he presented so well is that loss or damage has nothing to do with diminution in the value of land. We have moved on now. The hon. Member for Lewes (Norman Baker) said that as we have tightened up the difficultly of getting a licence, so the licence issuer should carry more responsibility.

The amendment would ensure that the fact that the abstractor was abstracting the water in accordance with the provisions of the licence granted would be a defence to proceedings brought under the clause. Our argument has covered the issue well. However, the Government have a duty to protect people who do what they are supposed to do and comply with the rules. The agency currently employs about 11,500 people.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

Indeed—they are fine people. The agency is better equipped to decide whether damage is likely to be caused than the single abstractor who might be doing nothing more bizarre or illegal than something that has been done for hundreds of years. The amendment would therefore be useful.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I do not want to go into the arguments, because the same ones apply. However, I should like to throw in another point that the hon. Gentleman might like to consider. If he had his way in relation to the Environment Agency having some liability, it would inevitably apply the strictest

conditions to any licence to minimise any risk to itself. That would be undesirable and make the whole system unworkable. I come back to the point that if you have a licence, it does not exempt you from damages if you cause damage yourself—

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

Order. I must draw the Minister's attention, as I did with that of the hon. Member for Leominster, to the fact that I am not the one who is requesting the licence.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I do apologise for drifting off into that, Mr. O'Brien. I was discussing whether holding a licence creates an exemption from damages. An example might be that a driving licence does not give anyone any exemptions from any damages that they might cause as a result of holding that licence. They are still liable.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

If I may say so, that is a ridiculous comparison to make. A driving licence is a demonstration that a person has passed a necessary test and is equipped to drive on the road. The Environment Agency would not grant a licence by issuing a piece of paper and saying that you could go away and do what you wanted. When I say ''you'', I do not mean you, Mr. O'Brien, I mean ''one''. Rather, a licence will come with conditions: the Environment Agency is bound to say, ''Thou shalt not this,'' and, ''You must do this in a particular way.'' The Environment Agency does not hedge round the conditions on how people operate, because it is protecting the environment and trying to make it better—that is what it is there for. So, it seems unfair to use the analogy of driving licences.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

On a point of order, Mr. O'Brien. I wanted to include the Environment Agency as liable through amendment No. 41. This amendment would not do that, but it would protect people so that once they have applied for a licence they have complied. I refer the Minister back to the clause in question.

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

That is not a point of order; it is part of the debate.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

The example of the ice-cream van, which I came up with off the top of my head, was not that bad. It was a better comparison than that with driving licences.

I understand the Minister's points, and no one would pretend that they are not logical and do not have some justification, but does he feel uncomfortable, as I do, about an arrangement whereby somebody acts appropriately, goes through the proper procedures, obtains a licence, sticks to its conditions and yet can still be exposed to legal action? Apparently, the fact that they have done everything asked of them is not a defence.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I repeat that I think that the clause brings this form of licensing in line with existing forms and makes it consistent.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

The Minister mentioned driving licences, but, if they are in accidents, those who choose to drive without licences are punished much more severely than those who hold licences. That is the system that the amendment would create. If someone

plays by the rules, they should be protected by them, but that is not the case at the moment. Unless the Minister will reconsider the intention of the amendment, I will press for a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 11.

Division number 7 Adults Abused in Childhood — Clause 26 - Claims arising out of water abstraction

Aye: 7 MPs

No: 11 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Clause 26 ordered to stand part of the Bill.