---

Flood and Water Management Bill

I am grateful to all noble Lords who have spoken in this significant debate. I am grateful to the noble Lord, Lord Taylor, for indicating that we should all use the abbreviation SUDS. I, too, was wrestling with the problem of coping with that important concept. I will go through each amendment in turn because of their importance and, at the same time, I hope to answer the questions addressed to me. Amendment 68 would require the Minister to specify, by regulations, which body should take responsibility for the ownership and maintenance of SUDS. Adoption does not need to confer ownership, as the amendment seems to imply, but simply a responsibility for maintenance, which is different. Many SUDS features will be dual-function spaces; for example, ponds in parks, or permeable paving in the courtyards and car parks of blocks of flats. Therefore, conferring ownership is neither necessary nor appropriate. We are concerned about responsibility for maintenance of the system. I turn to the question of who should maintain SUDS. Subject to certain exemptions set out clearly in the Bill, primarily concerning roads, the responsibility will be that of the SUDS approving bodies, where the SUDS serve more than one property. The Bill is clear on this point. Schedule 3, paragraph 6 of the Bill already specifically places the responsibilities and duties of the SUDS approving body, the SAB, on unitary authorities and county councils. I shall come to the reservations that the noble Lord, Lord Greaves, has on that in a moment. Those responsibilities include both the approval of surface water drainage systems in new developments and redevelopments, and the duty to maintain them where they serve more than one property. We believe that a fragmented approach to the approval, adoption and maintenance of SUDS should be avoided—that is an important principle of the Bill—and we strongly believe that the ultimate responsibility for both approving SUDS and for adopting and maintaining them should reside with one body. This will ensure that the SUDS are well designed and constructed in the first place, and therefore will function effectively and can be maintained efficiently. The noble Lord, Lord Greaves, can see where the Government's thinking is going. As we said in the other place, there is nothing to prevent the SUDS approving body transferring its functions to another body by agreement, although the SUDS approving body will retain responsibility and liability. We already know that some two-tier local authorities are considering placing some SAB functions with districts where that is the best local arrangement for the area. Schedule 3(6) also allows a Minister by order to appoint a different body as an improvement body for a specified area. So there is a degree of flexibility, which I hope that noble Lords will appreciate. Amendment 68 brought to light for the Government an interesting technical point which we seek to address in the government amendments included in this group, to which I shall speak now and which I will move in due course. Schedule 3(6) appears to be somewhat less flexible than is desirable. The provision was intended to allow for both the national transfer of the approving body functions and the transfer of functions on an area-by-area basis. On review, we felt that that needed to be clarified. That is why we tabled Amendment 71, which allows a Minister to appoint a new approving body, ""in all areas or in one or more specified areas"." That introduces an element of flexibility which accords with some of the arguments presented this evening. In addition, we want to ensure that the power to transfer specific approving body functions is as flexible as similar powers in the Bill, such as the power to reallocate flood risk responsibility, which is covered under Clause 29. Taking that clause as an example, although flood risk responsibilities are clearly set out in the Bill, it nevertheless includes a power, subject to affirmative resolution, to reallocate them either singly or en bloc. We want to adopt an approach consistent with that in the case of SUDS. Paragraph (6)(3) of Schedule 3 allows both the approval and adoption functions of the SUDS approving body to be transferred to another organisation together in their entirety, but it does not allow the Minister to split their functions, for the reason that I identified earlier: we regard the integrated approach as essential. Amendments 72 and 73 would enable the splitting of those functions, but only if approved by both Houses of Parliament, because we consider that to be a significant change in policy. Our policy position is clearly set out in the Bill. Throughout, we have endeavoured to include the flexibility to ensure that the best arrangements can be put in place, should circumstances change over time. Noble Lords pressed me on one or two earlier amendments, on which the Government's defence is, quite properly, that we have regard to the future-proofing of legislation so that it is fit for purpose and that changes can be incorporated. That is why the noble Lord, Lord Greaves, will understand that we do not believe that Amendments 70, 76 and 77 are necessary. They provide for the planning authority to have a duty to approve drainage systems. During the Bill's progress, we have made it clear that we believe that giving the SUDS approving body role to county local authorities fits well with their highways responsibilities. We expect many SUDS to be located in or alongside roads, especially in urban areas, where the issue of surface water often becomes most acute. More importantly, county councils will have wider responsibilities under the lead local flood authority role in Part 1 of the Bill, and already have the responsibility for surface water management planning. These are issues that we covered earlier. Placing the SUDS approving body—the SAB—at county level will ensure that drainage systems are approved in the context of the wider management of local flood risk, and over a wider geographic area. To ensure this operates well, the Bill makes the SAB a statutory consultee to the planning process. It also sets out procedural arrangements, including provision for regulations to be made to ensure that timetables and processes for planning and SAB approval work effectively together. As I have said, the county already has the flexibility to transfer its functions to the local planning authority by agreement, if it decides that that is the best arrangement. I hope that the noble Lord, Lord Greaves, will recognise the flexibility here. We are giving responsibility primarily to the county authority, but if the case is established that it is more appropriate that it should go to the district, that can happen in the interests of local people. Furthermore, the Bill already enables the Minister to make an order transferring the SAB functions to the planning authority, and the Government amendments in this group would make that power even more flexible. I hope that it is appreciated that the Government have recognised that the original drafting of the Bill had an element of rigidity to it, which prompted these amendments, and that our amendments seek to improve flexibility. Amendment 69, tabled by the noble Lord, Lord Taylor, would insert into the Bill a reference to water efficiency. I agree that we should do more to reduce water use generally, especially in areas of water shortage. Clause 36 of the Bill addresses the issue of water shortages. However, when raised in the context of SUDS, it is the use of rainwater harvesting that comes to mind. That is one of many potential techniques for managing surface water run-off—an important issue—although in periods of heavy or prolonged rainfall, tanks can fill up quickly and thus have a limited capacity to reduce the volume of water going into sewers, or the risk of flooding. It is also important to understand the costs, benefits, practicalities and carbon impacts of harvesting systems. This issue will be addressed in the development of national standards for SUDS against which all proposed sustainable drainage systems must be judged. The Bill requires that Ministers consult on national standards before publishing them, and we will consult widely with all those who have an interest in the issue. Amendment 78 requires the Minister to consult those likely to be affected by the arrangements for sustainable drainage set out in paragraph 17 of Schedule 3, and to publish a report detailing how the adoption and maintenance of drainage systems is to be funded, before the schedule is commenced. The funding of SUDS maintenance has been fully debated. Noble Lords will have appreciated the keen interest taken in this issue in the other place. I will reiterate to the noble Lord, Lord Taylor, that we have undertaken to ensure that the duty to adopt and maintain SUDS will be funded in full, one way or another, and that we will publish the way forward in time for implementation of the legislation. That will ensure that measures are in place to enable local authorities to implement SUDS in full certainty that there will be no gap in funding. I accept entirely the noble Lord’s anxiety on that point. I would like to be more precise about funding, but the commitment is there. The Government appreciate that local authorities have the right to expect that this important duty will be adequately funded. We make that commitment. Having made a clear commitment to ensure that SUDS maintenance is funded, we will carefully consider the costs and benefits of the various funding options, and the impact on affected parties. If legislation is required to deliver a funding mechanism, we will consult appropriately. We have made it clear that we will keep under close review the costs and assumptions implied by the Bill and by the transfer of private sewers. A review panel is already established and has already met. It brings together the Local Government Association, Defra, the DCLG and the Environment Agency. The review panel is enormously important. At this stage I am bound to talk in fairly general terms, but the panel has been established to address itself to this matter. We understand and agree with the concerns underpinning the amendment, but I hope that it will be appreciated that without legislation we are moving ahead with the concept that the amendment seeks to press on the Government. Amendment 74, proposed by the noble Lord, Lord Greaves, seeks to broaden the definition of construction work with drainage implications. The noble Lord is right in wishing to ensure that a SUDS approval body will consider not just the drainage of the property or structure, but also its impact on neighbouring properties and others further downstream. I would accept this amendment if I did not think that the Bill already encompassed this very important concept. Any construction work that will increase, decrease or divert the water leaving a site will alter the way in which the water infiltrates the land. This will include structures on and in the land. Therefore, the effect of the noble Lord’s amendment is already covered. Should there be any need to clarify further the definition of construction work with drainage implications, there is an order-making power under paragraph 7(4) to do so. Finally, the order-making power in paragraph 7(4) enables the Minister to set exemptions from the requirement for approval, which will be used to deliver the effect of Amendment 75. Noble Lords raised an important point about the need to be proportionate and realistic about the types and sizes of development which will need to have their drainage plans approved by the SAB. I understand that point entirely. The noble Lord, Lord Greaves, was particularly emphatic in moving his amendment on this matter. We agree that de minimis thresholds are a sensible idea and we intend to introduce them. At the lowest level we will weigh up exemptions. In the other place, we have said that we expect to phase the implementation of the SIDS proposals in the Bill, starting with larger developments, and we should achieve that through using this power to concentrate on the larger developments. I think that the noble Lord, Lord Greaves, was indicating in his amendment and in his speech that we should not concern ourselves with smaller issues when there are very big ones that we need to address. I want to give him assurances on that. The noble Lord, Lord Taylor, asked about savings from private sewers and the need for update assessments of local authority costs. Any review of the costs of local authorities will reflect the fact that authorities are aware of transfer, and that their repairs will reflect this. Our estimates are somewhat conservative here. But, in the light of the data that we have, we excluded outlying high-cost returns in arriving at the figure. I appreciate that some vagueness is attached to these issues. There are bound to be aspects concerning estimates with regard to this, but I hope that the noble Lord will appreciate that the Government have addressed themselves to the issue of local authority costs. We recognise the importance of that. I think that I have mentioned also the former issue. I do not know of any reason why the savings for local authorities arising from the transfer of private sewers should run out after a limited period of time. I do not see why that obtains. Therefore, I do not have much comment to make on that. On the point made about transitional arrangements by the noble Baroness, Lady Knight, the schedule requires all construction work that affects drains to have its drainage system approved. The provision will be commenced by order, and such an order can make all the necessary transitional arrangements to ensure an orderly implementation. I take entirely the point made by the noble Baroness: we need to be reassured about all aspects of that issue. I want to end on a slightly more positive note. I thank my noble friend Lady Young for reflecting exactly what the Government think about the point raised by the noble Lord, Lord Greaves, on the appropriate authority. However, he did ask a specific question about whether it would be possible for combined applications to be made together. I am able to say "yes" to that. If there is a planning application and a SUDS application, the applicant can lodge a combined application to the planning authority. I refer to paragraph 8(3) of Schedule 3. The approving body is the statutory consultee to the planning process, which is a further safeguard to ensure that the process works satisfactorily. I apologise for the length of my reply, but noble Lords have raised some important issues on a significant part of the Bill.