Reservoirs

I beg to move Amendment 34, in schedule 4, page 57, line 15, leave out ‘10,000’ and insert ‘15,000’.

With this it will be convenient to discuss Amendment 130, in schedule 4, page 71, line 27, at end add—

‘43 One year after this Act coming into force the Minister shall carry out a review of the regulatory impact of this Schedule on undertakers.’.

I am most grateful for the opportunity to set out our concerns, which are dealt with in Amendment 34, regarding the provisions in schedule 4 on the safety of reservoirs and dams. I am sure that the Minister was in his place during Prime Minister’s questions yesterday afternoon and that he will have heard—or  read, or his Department will have informed him about—the question asked by my hon. Friend the Member for Lichfield. A reservoir is leaking in his Constituency, which raises the issues of maintenance and who pays if there is a specific leak.

The Select Committee mentioned in its report that smaller reservoirs should be examined to see whether they can be excluded from the system of inspections and procedures in an effort to reduce the costs. The regulations that deal with that cover those points. The National Farmers Union is, among others, particularly concerned about the potential impact of the proposals on small farm reservoirs. I am not suggesting that the NFU is asking to be exempt but, taking at face value what the Environment Agency is saying, we understand that the reason for the reservoir safety provisions is to reduce the threat to life and limb. I argue that the smaller—10,000 cubic metres or under—reservoirs do not pose a threat to life and limb.

Looking at the regulatory impact assessment, my understanding is that the costs associated with the provisions are, in fact, high, so the regulatory burden on those responsible for the smaller reservoirs would be great. The NFU has raised its concerns about the potential impact of the proposals in the Bill on small farm reservoirs, particularly regarding the increased bureaucracy associated with the Bill, which will lead to an increase in the registration and risk assessment work of farmers. I am sure that, as a matter of course, farmers would wish to investigate and would not want to have dams or reservoirs that were inherently unsafe. However, we believe that the provisions go too far and we want them to be reduced.

The NFU is also concerned about the proposal to make the failure to register a reservoir a criminal liability. Is the Minister prepared to concede that point? As he is aware, there are a number of reservoirs whose location and ownership is unclear. There is a concern that a previously unknown reservoir might be discovered and a criminal liability might attach to a farm or a small business.

The NFU has asked for there to be safeguards to ensure that the Bill does not become an enabling piece of legislation to be used at a future date to put additional costs and bureaucracy on to the farming sector. The Environment Agency supports the introduction of a risk-based approach to reservoir safety control, with more rigorous measures applying to reservoirs if failure would pose a risk to life. I simply argue that the amendment addresses that point by increasing capacity to 15,000 cubic metres.

The Association of Drainage Authorities states that the Bill makes a change to reservoir safety and checks to include all reservoirs of more than 10,000 cubic metres, instead of 25,000 cubic metres. Will the Minister explain the reason for the change? The Bill would give regard only to those that may have potential flood risk problems, and that would exclude quite a few from the regulations.

The association also raises the technical debate about rivers whose embankments are above ground. If they flooded, would they be treated in the same way as reservoirs that leaked or flooded? For clarification, it  would welcome the reservoir Clause being taken out of the Bill and put into a wider Bill that would become unifying legislation covering all major water issues. I am sympathetic to that view, but we have not concluded our thinking. We may want to remove the provision from the Bill on Report, but I welcome this opportunity to debate the matter.

Thames Water has said that it is important that communities next to reservoirs feel safe, and its position will depend on exactly how the changes under the Bill are made. The Country Land and Business Association is pleased with the introduction of a risk-based approach, but it is concerned about the 10,000 cubic metre threshold and the requirement to register. That will require several thousand low-risk reservoirs to sit on a register, because the threshold is too low. We are sympathetic to its view, and we want to know the reason for that threshold. The Minister may say that the limit was selected because incidents have been recorded of the public being at risk from a reservoir below the current threshold of 25,000 cubic metres. I hope that we have addressed that by suggesting an interim capacity of 15,000 cubic metres.

The CLA suggests that the Government have not given a strong enough reason to justify the regulations’ potential impact on businesses such as farmers and landowners who depend on reservoirs to do their work. The Government may feel obliged to adopt a risk-averse approach, and the CLA suggests a review of the impact of the threshold in, perhaps, a year. Is the Minister minded to agree to such a review?

The safety and maintenance of reservoirs is an important aspect of flood defence, and we should ensure that we are protected, but that should not be done in a way that adds administrative burdens and costs to farmers, landowners and small businesses. We have concerns, which we have addressed in the amendment. We believe that the Bill’s aims can be reached more efficiently and effectively, and impose fewer regulatory burdens, and it may be best to accept the amendment, or to remove the provision from the schedule.

The Minister will be aware that the Committee has received representations from the English Golf Union and, perhaps more importantly for him, the Golf Union of Wales.

What?

I hope that the Minister has seen the representations about Clause 33 and schedule 4. The organisations state that that the proposal to lower the above-ground volume, which is covered by the Reservoirs Act 1975, from the current threshold causes them real concern, and that the lowering of the qualifying volume will have a negative, unintended consequence. In recent years, wherever possible, golf clubs have worked towards responsible storage of excess winter water. I declare an interest; there are many golf courses in my Constituency. The organisations believe that they are being unfairly caught by the memorandum because they store excess water in winter storage reservoirs within non-impounding offline reservoirs, for subsequent reuse as irrigation during summer drought.

The City of London Corporation would like to share its concerns over the change to criminal liability:

“The Bill would move from the current position where an actionable failure has to result from ‘the wilful default of the  undertaker’ to one where criminal liability results from a failure. This major change for those managing reservoirs is likely to result in additional expense.”

It does not have the means to meet that expense. Finally, this is also a key issue for the London councils. They have great concerns over the reservoir aspect, the regulatory impact and the criminal liability aspect.

We urge the Minister to review this matter. I have put everybody’s concerns to him. I hope that he will be minded to reach a coalition on Amendment 34.

I will be very brief. The hon. Lady has trespassed, albeit with the best of intentions, on to the next Amendment. The Bill would reduce the figure of 25,000 to 10,000, and we are discussing an amendment to take it up to 15,000. Those are arbitrary figures that are not supported by good arguments. There must be a balance because we want to safeguard the public while not discouraging the use of reservoirs to trap surplus water when there is surplus rainfall, to minimise abstracting water from aquifers or rivers. I believe that the following amendment is best placed to address this matter, but I will listen to the Minister’s reply.

Welcome to the Committee, Lady Winterton.

I will make a couple of quick points. There is a danger in the last afternoon of the Committee that we will all get a bit fatigued. Understandably, we want to get through the Bill. As was said by the hon. Member for Vale of York, who is a member of the Environment, Food and Rural Affairs Committee, the situation with reservoirs—let alone the way in which we look at flooding and water management—is probably one of the most important parts of the Bill. It behoves us not to just nod this through and hope that it will be all right.

We all remember the problems between Sheffield and Doncaster when there was the potential for a reservoir to break its back, although I cannot remember the name of the reservoir. There are organisations that wish to be statutory organisations. It is fair to say that we will table some amendments on behalf of the Fire Brigades Union on Report, when it will be more appropriate. If there is an incident around a reservoir, it must be absolutely clear who is responsible and who will work together to deal with that responsibility. That is not as easy as it sounds because one water company could own a reservoir in the area of another water company. It would therefore not have manpower that it could suddenly put into the area. We need co-ordinating activities, which I hope is what we are creating with this schedule.

I hope we have all the emergency powers we need to deal with a contingency if we see another situation like the 2007 floods. As we have said in other debates on the Bill, the critical infrastructure is not ideally located. We have not looked much at reservoirs, but many of them are in areas at risk of flooding. Of course, it is no good just putting flood water into a reservoir because that has immense implications for people’s drinking water.

I will use just one example to finish. During the problems in Gloucestershire in 2007, we were looking at bringing in water from Bristol Water, which takes it from the Gloucester-Sharpness canal—that could have  been done. However, one of the measures to take flood water away that the Environment Agency has in place—it took me several years to get this from the agency—is by using the Gloucester-Sharpness canal. We have a flood alleviation measure that goes into the drinking water, which we would now need if we had a wider flooding problem.

We cannot just wish away such problems. The issues are really serious and I hope and pray that we are getting them right in the Bill.

I know that the hon. Member for Vale of York was accused of a criminal activity—trespassing on another Amendment. I will be interested when we reach that amendment because, heaven knows, I might be open to some persuasion, depending on the strength of the argument.

However, I shall refer to amendment 34. To make clear what we are trying to do, which I think has been welcomed by all hon. Members, we are moving to a system of risk-based assessment of reservoir safety. That is what we have to do. The Reservoirs Act 1975 is not risk-based and we need to look at those reservoirs that pose a risk to people if they are breached—not just those that are large, but those that pose a risk. I do not think that anyone would expect me, as a Minister, to apologise for regulating to protect the public, but the aim is to make the regulation not only risk-based but proportionate. Where regulation needs to be light touch, it will be light touch. The regulatory burden will be kept to the absolute minimum required on those reservoirs that pose little threat, including some reservoirs currently regulated and some on the properties of individual landowners, who will see a reduction in burdens if the risk assessment shows that to be appropriate. However, there is not a non-regulatory alternative.

Let me say why we have come to the figures that we have and what we might be able to do. The amendment would make the meaning of “large raised reservoir” in the Reservoirs Act apply to reservoirs with a volume capacity of 15,000 cubic metres or more, in place of the 10,000 cubic metres in the Bill. We have considered in some detail what the minimum figure should be, balancing it against advice from professionals and the existing records. That is what we have gone on. We have records that are not complete, because many reservoirs are not recorded, as they are not of that scale. However, we know that we have had incidents involving water holdings between 10,000 and 12,000 cubic metres, or between 10,000 and 15,000 cubic metres. We know they have occurred, and I shall come back to that in a moment.

We reached the figures on the advice of professionals and on records of actual incidents involving potential breaches of reservoirs. First, the profession considers that the 10,000 cubic metres is a realistic minimum for risk assessment purposes, which—let me make it clear—was supported by the vast Majority of experienced engineers who responded to the consultation. By the way, to say who else has rallied behind the proposal, the Institute of Civil Engineers, the British Dam Society and the Environment Agency have coalesced alongside independent, professional engineers. The mode is bang on 10,000 cubic metres, rather than 15,000 cubic metres. This is  not a matter of a Minister plucking a sum out of thin air; there is not an exact science, but that is where the figure is at the moment.

We can give further assurance of where we go with the figure now and in the future. First, the extension to 10,000 cubic metres does not mean that all reservoirs with that capacity will be regulated beyond the need simply to register and comply with certain requirements on new builds and major alterations. As part of the risk-based approach that we are introducing, reservoirs not designated as high risk will not have to meet the needs for more routine supervision and inspection requirements. That aspect is getting the burden right—doing the risk assessment and matching it to the appropriate requirements.

One of the issues highlighted by Pitt for high-risk reservoirs—he quoted the terrible example of the Ulley reservoir in Rotherham, from where 1,000 people had to be evacuated at very short notice in the middle of the night—was not only evaluating the risk but communicating it to local communities and first-level responders. Will such reservoirs be part of the critical national infrastructure we discussed in earlier sittings, which the Cabinet Office is supposed to deal with, and what measures may be put in place to communicate that risk and inclusion on the register to local communities?

Yes, some of them will be, based on the inundation maps we are generating to see where the impact of those reservoirs will be, but I will return to that point in a moment.

In the impact assessment we published, we included a summary of a known incident in which lives are at risk from the potential breach of a reservoir with a capacity of about 12,000 cubic metres. A more recent example in the midlands involves a reservoir of between 10,000 and 12,000 cubic metres. We have taken the view, alongside that of the professionals, which has coalesced around the 12,000 figure, that risk assessment should start at that level.

Many organisations and groups have raised concerns about whether the figure is correct and what can be done if it is wrong. One point is that farmers and landowners might benefit from deregulation, as some of the reservoirs will be not only low risk, but remote, so they would not be caught as part of risk assessment. They would not pose a risk to people because they are on farmland far away from built-up areas. Any release of water in those remote locations, away from houses and building, would not be catastrophic.

We recognise that several small reservoirs on farms might come within the 10,000 to 25,000 cubic metre range. I can give an assurance that we will not launch the measures pre-emptively and will consult with farmers and landowners when we come to frame the detailed rules for regulating the reservoirs that pose a risk. We want to ensure that, where those rules can be light touch, they are. We will also look at how we can provide farmers with advice, both on that and on new reservoirs.

With regard to criminal liability, the Reservoirs Act 1975 is concerned with public safety, so that is the focus. That is consistent with the paramount important of public safety, but failure to register—we are talking about a  risk to individuals as well as to homes and businesses—is a criminal offence. However, Clause 37 of the Bill also provides for civil sanctions, on which we will consult before they are produced, so there is an ability not only to go for criminal sanctions, but to deal with such matters appropriately. The change of criminality from wilful default to strict liability is the same as the need for criminal liability in relation to registration. Strict liability offences are appropriate for public safety legislation. We also intend to introduce civil sanctions as an alternative.

My hon. Friend the Member for Stroud mentioned emergency powers. Schedule 4 includes updated provisions on emergency response plans and extends them to reservoirs larger than 10,000 cubic metres, but based on the risk analysis. Emergency services will therefore also have to provide their plans for handling flood impacts, and we have agreed to give £1.2 million to support their work towards that. We have made the outline inundation maps I mentioned earlier, which show the potential extent of flooding, available to the public because we believe that they have a right to see them. We will make more detailed maps available to emergency planners, who need to drill down to a more detailed level.

I am surprised by that, because my clear understanding was that the inundation maps were not currently available to the public. They are available to first-level responders and local authorities, but making them public will have great implications.

They are indeed available, but from the agency, so a member of the public can go and get them if they want. The more detailed information into which emergency planners might need to drill down will be provided directly to them. Those maps for the emergency planners might contain secure information on assets at risk, for example, so we would not make them generally available. There will be arrangements, however, to inform the public of risks and provide warnings, and plans to do that in 2010 are now being developed by the Environment Agency and the local resilience forums.

Under the Bill, there is the ability to revise the cubic capacity upwards or downwards as time goes by, as the evidence shows. Perhaps that is a good point on which to lead before we move to the next Amendment, and with that clarification, I ask the hon. Lady to consider withdrawing her amendment.

I welcome the debate. In Scotland, we do not recognise the law of trespass and, as the hon. Member for Cheltenham knows, our names are also on that Amendment.

We would like to consider further the Minister’s remarks in connection with the next amendment, and perhaps come back at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move Amendment 130, in schedule 4, page 71, line 27, at end add—

‘43 One year after this Act coming into force the Minister shall carry out a review of the regulatory impact of this Schedule on undertakers.’.

As an MP who represents a Constituency with a number of large dams—probably nine really large ones and certainly some small ones—I know that a failure of  those dams and the release of water is a catastrophic event that can be damaging to human life. This part of the Bill deals with smaller reservoirs, but it is still important. Human safety is an important issue that the legislation should deal with.

There is some concern that the Bill has perhaps got things wrong in terms of the size and scale of reservoirs whose owners who will now have to register them. I am pleased with the introduction of a risk-based approach, as for some reservoir owners that will lead to a reduction in requirements, but I am concerned about the 10,000 cubic metre threshold, and the requirement to register.

Based on the hon. Gentleman’s argument and the previous discussion, and having read and analysed his Amendment in detail, I will need to take this away and look at the drafting. However, I am inclined to support the thrust of the amendment, and it is right for us to bring it back within 12 months to see whether the amount is right. On that basis, I suggest that the hon. Gentleman considers withdrawing the amendment, and we will bring back something to the same effect on Report.

I thank the Minister for his generous offer, which the easiest offer I have ever won, and without even trying. I am pleased to beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Clause 34 ordered to stand part of the Bill.

Schedule 5 agreed to.