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Flood and Water Management Bill

My Lords, I have five amendments in this group. I very much welcome the amendments that the Conservatives have tabled as, as the noble Lord, Lord Taylor said, probing amendments to establish how the SUDS will work. Of my amendments, Amendment 77 is consequential on Amendment 70. The other three are perhaps of lesser consequence, so I will deal with them first. Amendment 74 would change the definition of construction work with drainage implications. That is fundamental to the subsystem, because Paragraph 7(1) states: ""Construction work which has drainage implications may not be commenced unless a drainage system for the work has been approved by the approving body"." That is the definition of which work requires a SUDS. Paragraph 7(2)(b) states: ""the construction work has drainage implications if the building or structure will affect the ability of land to absorb rainwater"." I have spent quite a lot of time thinking about that. The ability to absorb rainwater is one thing, but the practical consequences of the development are slightly different. I therefore want to add at the end the words, ""or increase, decrease or divert the surface water leaving the site"," which are clearly the practical changes to the drainage system. My second amendment is to probe the exceptions to those types of development or project that will require a drainage approval—in other words, a SUDS. Paragraph 7(4) states: ""The Minister may by order"," provide exceptions to subsection (1), which, ""provide that a specified class of work is to be or is not to be treated as construction work"." I want to add to the end of that the words, ""including provisions for the application of de minimis rules"." That is a means of probing the Minister on just how big developments will have to be before they require a SUDS. Will there be a gradation where larger developments need a SUDS but smaller developments do not? In particular, during the transitional period, is it intended to start with the big ones and gradually move down? If so, where is the floor as to how low it will move? Will there be a permanent system under which small developments that require planning permission—perhaps the building of one house or of a garden shed—do not require a SUDS, or is it intended that, eventually, all development will require a SUDS? Finally, under Amendment 76 I want to change Paragraph 8(3). At the moment, it states: ""If the construction work requires planning permission, the application for approval under paragraph 7 may be … made in accordance with paragraph 9"—" which is a free-standing application to the SUDS authority. Clearly, here I am especially concerned with two-tier authorities, where the SUDS authority will be the county council and the planning authority will be the district council. Or, under Paragraph 8(3), it may be, ""combined with the application for planning permission in accordance with paragraph 10"." In other words, it may be made along with the planning application to the district council, the planning authority. If there are two applications, one for a SUDS application and one for a planning application, referring to the same development, they should always be made together to the planning authority, which will pass the SUDS part to the county council. That would be sensible. The documentation we have had from the Government as to how the process will work in practice suggests that that is exactly what should happen. Freestanding applications will come if they are made separately from a planning application and the process does not require planning permission. If it already has planning permission but needs a SUDS in the future, that would go straight to the county council. But where it is being made at the same time as a planning application in relation to the same development as the planning application, they should be made together. That is what the Government are saying about how the system will work. Therefore, I do not understand why the legislation says something different. I hope that that is clear. The substantive, important amendment in this group is Amendment 70, which is linked to Amendment 77. This provision would make the SUDS approval body, which will determine the SUDS application, the local planning authority, as defined in Section 11B of the Town and Country Planning Act 1990 and not the county council for the area. Clearly, a choice has to be made. The lead authority for flooding and flood risk management is the county council in a two-tier area. The planning authority is the district council. Whatever system there is, the county council and the district council will have to work together, just they do at the moment, for example, on planning applications that have highways implications, where the county council is the highways authority but the district council is the planning authority. The Local Government Association does not have a vested interest in this. Sometimes when some of us put forward Local Government Association amendments, it is because it is saying that the cost will be too great or that it wants more resources or more powers for local government. This is not a vested interest argument in favour of local government by the LGA. It is the LGA, knowing how local government works and representing all kinds of local government—unitaries, counties and districts—saying that in two-tier areas the Government have got it wrong. I agree with that. My amendment would mean that the approval process for SUDS sits at the district level in two-tier areas ensuring that no unnecessary bureaucratic burdens are added to the planning system. By placing the approvals process for SUDS at the county level in two-tier areas the Government will create an unnecessary level of bureaucracy, complexity, higher costs, because two separate applications will have to be dealt with and processed, and delays. As far as I can see there is no doubt about that. In many areas it will work because local authorities are very good at coping with the systems foisted on them by central government, quangos and all sorts of people. You have to get around them and you have to make them work as best you can. But that is not a sensible argument for doing this. The SUDS approval system should work in the same way as issues related to highways. In Committee in the House of Commons, the Minister said that placing the SUDS approval and adoption responsibilities on the county local authorities level fits well alongside their existing responsibilities for highways maintenance. But that is not how the system works at the moment. In two-tier areas, the district planning authority makes the planning decisions, including highways, but consults with the county to ensure that highways issues are properly addressed. The same system should be used for the approval of SUDS. Local knowledge and a detailed understanding of the planning process are vital if the system is to be successful in practice. When I look at SUDS, and the regulations that will be produced to tell local authorities how to deal with them, I see that many regulations will not be a matter of policy, but will be like building regulations, so the question will be whether the application fits the rules and regulations. There will be some scope for flexibility, but nothing like the scope in ordinary planning regulations. The application that comes in will either fit the criteria that the Government are putting forward or will not. When I met some of the Bill team on Monday, it was clear to me from what they said that the SUDS regulations will come in a pretty thick document. The question in each case will be whether or not they apply. That is the reason for making the bureaucracy involved with the application as simple as possible. The Government's proposal will complicate the system. In some areas, it will cause real problems. People do not understand how much complexity there will be. Certainly many people who will have to apply for SUDS do not understand the complexity that this will introduce to the regulatory system dealing with development. The simpler this can be kept, the better. The obvious thing to do is to make the planning authorities also the approval authorities for sustainable drainage systems; and to make absolutely certain that the rules and regulations that they apply are the right ones, laid down by central government, and that the proper consultations take place with the lead flood and risk management authority. I hope that the Government will look at this again. It is an issue that we would have wanted to come back to on Report. We will not be able to, and unfortunately I am certain that the Government will not accept my amendment. However, when the legislation comes in, this matter will have to be looked at closely, and may require amendment and change.