Incidental flooding or coastal erosion: Environment Agency

I beg to move Amendment 123, in Clause 38, page 22, line 42, at end insert—

‘(d) dwellings,

(e) the protection of agricultural or other commercial interests.’.

With this it will be convenient to discuss Amendment 124, in Clause 38, page 23, line 16, at end insert—

‘(e) the views of owners and occupiers of land likely, in the opinion of the Agency, to be directly affected by the carrying out of the work.’.

I will not detain the Committee for long, but Clause 38 is important. It gives considerable powers to the agency to carry out work for the purposes of natural and cultural conservation and amenity. However, the power does not extend to the protection of commercial interests—including agriculture or the protection of people’s homes, all of which could be put at significant risk by flooding. Moreover, it suggests that we put the agency in the position of having to tell someone who lives on the coast and whose home is at imminent risk of destruction by flooding, that, while it can intervene to carry out works to protect biodiversity, it cannot intervene to protect the dwelling.

As such, the proposed power needs to be extended. We are not saying that it should be exercised as a matter of course, but it will probably be needed only in exceptional circumstances. Where it should be needed, it should be available. On that basis, I am prepared to listen to the Minister’s explanation.

I hope that I can give reassurance and work with the hon. Gentleman in the spirit of his amendments.

Amendment 123 will allow the agency to cause flooding in the interests of dwellings or the protection of agricultural or other commercial interests. It sounds like a wholly reasonable suggestion and I appreciate the intentions behind it. However, it is not necessary.

The agency already has the power to reduce the potential harmful impacts of flood erosion under the Coast Protection Act 1949, the Land Drainage Act 1991 and the Water Resources Act 1991. All amendments to those Acts will be made under schedule 2, when the Bill is enacted. It might be helpful to explain that clauses 38 and 39 are necessary to enable authorities to carry out works that cause flooding, an increase in the amount of water below ground or coastal erosion for the beneficial effects of the environment, as opposed to reducing the risks from those processes. That is necessary because certain important aspects of the environment depend on those processes to sustain their interest.

However, it is just not clear how causing flooding or erosion could benefit dwellings or the protection of agricultural or commercial interests, other than for the purposes of general flood or coastal erosion risk management, so the capacity to do what the hon. Gentleman is proposing already exists within our legislation. His amendment is not necessary and is a wee bit confusing.

Let me move on to amendment 124. It would require the agency to have regard to the views of owners and occupiers of land likely to be directly affected by works carried out under its powers in the Clause. I could wax lyrical about why that is not necessary, but I understand the spirit in which it is intended. Unlike the previous amendment, it would not affect the Bill materially, but  signal what we are intending to do. If we can take the proposal away and have a look at it, we are pretty confident that, with a bit of redrafting, we can bring something back that would do exactly what the hon. Gentleman wants. I hope that he will accept my assurance and, hopefully, when we debate the Bill on Report, we shall table an amendment that will have the same effect.

I thank the Minister for taking away the proposal and perhaps coming back with something that will make it a duty of the Environment Agency to consult and inform landowners of what it is about to undertake. On that basis, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

I beg to move Amendment 38, in Clause 38, page 23, leave out lines 1 and 2 and insert—

‘(3) Condition 2 is that in carrying out the work the Agency—

(a) has regard to the national flood and coastal erosion risk management strategy under section 7, and

(b) does not create or increase potential harmful consequences of a kind listed in section 2(4)(a) to (d).’.

Clause 38 raises serious concerns about the role of the Environment Agency, and we tabled the amendment to find out whether the Minister would consider that other agencies are better placed to work more closely with the local authority. It is a probing amendment, aimed at eliciting why such a reduced role is envisaged for local authorities. Will the hon. Gentleman explain why he prefers his drafting to ours? We want to know whether the best placed authority is the local authority or the EA.

I thank the hon. Lady for the way in which she explained the probing Amendment. It is worth my saying at the outset that I recognise and support the need to have regard to the national strategy and to avoid any potentially adverse effects of projects carried out under the provisions. The amendment is not necessary because the Bill already takes account of such issues. I accept that she is probing at something, and it might be useful to clarify the role of local authorities and others. There are similar powers for local authorities under Clause 39 as well. I hope that that has helped the hon. Lady. We do not regard the provision as exclusive because local authorities have a role to play.

I am most grateful for the hon. Gentleman’s explanation. Having had the debate, it gives me great pleasure not to have to press the Amendment further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move Amendment 125, in Clause 38, page 23, line 39, at end insert—

‘(16) The Minister must by regulation provide a right of appeal against a decision by the Agency to exercise the powers in this section.

(17) The regulations must—

(a) confer jurisdiction on the Minister a court or a tribunal and

(b) make provision about procedure.’.

With this it will be convenient to discuss Amendment 128, in Clause 39, page 25, line 10, at end insert—

‘(16) The Minister must by regulation provide a right of appeal against a decision by the Agency to exercise the powers in this section.

(17) The regulations must—

(a) confer jurisdiction on the Minister a court or a tribunal and

(b) make provision about procedure.’.

The Committee will note that Amendment 125 stands in our name and amendment 128 stands in the names of both official Opposition and Liberal Democrat Members.

These two important amendments go to the heart of the debate we had on day one or two of the Committee, regarding the far-reaching powers of the Environment Agency, particularly under Clause 38. The Bill has no appeals mechanism against the Agency by any who run foul of its decisions taken under clause 38. We would like to see among the duties that the Environment Agency is asked to carry out in this regard, reducing, by regular maintenance, the incidence of flooding.

Amendment 125 insists:

“(16) The Minister must by regulation provide a right of appeal against a decision by the Agency to exercise the powers in this section.

(17) The regulations must—

(a) confer jurisdiction on the Minister a court or a tribunal and

(b) make provision about procedure.”

We are slightly alarmed by clause 38. We support the role of the Environment Agency in this regard and believe it is best placed to act, but it is important, as in other clauses earlier in the Bill, to have a right of appeal. We ask the Minister to share our concern and express his view as to why no right of appeal has been given.

There must be a difference between amendments 128 and 125 but I do not immediately see what it is. We hope that amendment 125 will meet with the support of the Committee.

We have been making good progress and I hope we can here. The amendments seek to place the additional safeguard of a right of appeal against the Environment Agency’s decisions under the powers of Clause 38; and, in the case of clause 39, a right of appeal against local authorities and internal drainage boards.

It is right for people’s rights to be protected and I believe the Bill provides adequate safeguards, through the rights of appeal for property owners, through provisions in respect of compulsory purchase and compensation, which are based on those in the Water Resources Act 1991. Projects implemented under the powers in clauses 38 and 39 will be subject to the same regime of consents and safeguards as any other project carried out under different powers by public bodies, developers or individuals. For works that go beyond minor improvement or routine maintenance, planning permission will generally be needed under the Town and Country Planning Act 1990. The local authority planning process ensures that interested parties are consulted and the opinions of the community are heard and taken into account. Well-established safeguards are associated with the process and the  planning authority is, of course, accountable for its decisions, which can be judicially reviewed. It would not make sense to establish a new process that duplicated the checks and balances of the existing planning process.

For work of a more routine and minor nature that would not require planning permission, a wide range of consents and permissions is required in different circumstances. To add a further appeals regime specifically for works carried out under these clauses would be disproportionate, inappropriately bureaucratic and highly burdensome for the Environment Agency, local authorities and internal drainage boards.

Furthermore any change of agricultural land use that does not need planning permission, but is nevertheless likely to have a significant effect on the environment, will require an environmental assessment and consent from Natural England under the Environment Impact Assessment (Agriculture) (England) (No. 2) Regulations 2006. This assessment must include consultation with the public, thus providing an opportunity for interested parties to make their views known to the decision makers.

Finally, any person wishing to challenge the exercise of the Environment Agency powers under clause 38 would have the option of judicially reviewing a decision. I therefore believe that there are already adequate safeguards in the system to ensure that these powers cannot be used to promote inappropriate projects, so the amendments, while well intentioned, are not needed.

Amendment 128 refers to a right of appeal against a decision by the agency in the exercise its powers under clause 39. However, clause 39 gives powers to local authorities and internal drainage boards—the point that the hon. Lady was pushing towards there—not to the Environment Agency. I assume therefore that the amendment was intended to refer to right of appeal against the decisions of local authorities and internal drainage boards. If this is the case, the argument against amendment 128 is the same as that against 125 and, again, I do not agree that it is necessary. I therefore ask the hon. Lady to withdraw the amendment.

I am most grateful to the Minister for summing up so generously. I hope that he will take our concerns on board, particularly as regards Amendment 125. We will keep this under review. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 ordered to stand part of the Bill.