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Flood and Water Management Bill

My Lords, I should declare an interest as an ex-chief executive of the Environment Agency, before I speak against the proposition that Clause 38 disappear from this Bill. It seems slightly strange that the Environment Agency, as a flood authority, wants to flood things but often needs to take account of where water is best placed. As the noble Lord, Lord Taylor, outlined, it also has other responsibilities under the framework directive and nature conservation legislation, including the habitats directive. Much of the work that the Environment Agency will be trying to undertake under this clause is to take account of the effects of the reduction in flood risk on habitats and to replace that habitat elsewhere in a way that takes account of the fact that damage had been caused by flood defence activities. However, on occasion, it might simply also be in the process of improving the environment for wildlife and people. I am somewhat bemused that Clause 39 has gained favour while Clause 38, which, as the noble Lord, Lord Taylor, said, is its mirror image, has not. Several times during our deliberations on the Bill we have discussed the roles of the Environment Agency and local authorities. The Environment Agency’s role is to have responsibility for riverine and coastal flooding and to take account of national and local issues in dealing with those two sources of flooding. The role of local authorities is to deal with flooding from ordinary water courses and surface and ground water. Therefore, if this clause were to disappear, the Environment Agency’s role, which, as set out throughout the Bill, is to work on a basis bigger than that of a single local authority and to deal with issues relating to main river and coastal flooding and erosion on a scale bigger than that of an individual local authority, would be severely compromised. The Environment Agency, as the lead water management agency, has responsibility to improve the water environment for the benefit of local communities and wildlife, and it has legal obligations under the water framework directive and nature conservation legislation. However, that will not cut much ice if the real concern is not whether those objectives are pressed forward. Clause 39 is aimed at pressing forward those objectives but has not gained opprobrium from the noble Lord, Lord Taylor, so what is the difference between Clauses 38 and 39? The noble Lord mentioned democratic accountability but we have to recognise that, like it or not, the Environment Agency is a government agency and, with all the responsibilities placed on it by this Flood and Water Management Bill, it will never be a democratic organisation. However, in exercising its duties under this clause, it is so hedged around by controls, checks and balances that I hope I can persuade the noble Lord that it will be unable to act other than responsibly—not that it would act irresponsibly—and therefore I hope that he is reassured. Is this clause anti-landowner? I do not think that it is. In many cases in the past, the Environment Agency has supported environmentally friendly land management. It has worked with landowners and other partners to improve local environments and has helped farmers and landowners to qualify for agri-environmental subsidies in their ongoing management of the land. Often, this has been poorer-quality land which, frankly, would not be of benefit for mainstream, high-profit farming activities and where getting some agri-environmental, higher-tier payments has been quite beneficial. In the past, the Environment Agency has worked with local landowners to ensure that that has happened. The Somerset levels are a key example of where, over many years, the agency has worked with local farmers to gain subsidies for them. The management of the broader levels for farming, wildlife and flood control has been an example of such partnership, and this clause allows the Environment Agency a bit more flexibility to get these things to happen in the right place—often, as I said, in areas of low agricultural productivity. If the Environment Agency can create habitats only in very close association with, and as a slightly clandestine part of, flood-risk management schemes, which is basically what it does at the moment, then it is looking at land close to a flood-risk management scheme which may not be best either for the landowner or for wildlife or flood control. Therefore, this clause gives the agency much more flexibility. The other worry is that the Environment Agency would come in with hobnailed wellies or waders and act unilaterally in this matter. However, I think that the safeguards surrounding the use of the powers under this clause involve not just belts and braces but string and Velcro as well. The Clause 38 powers are exercisable only under strict conditions and following full consultation. Most of the habitat creation schemes already delivered by the Environment Agency are, and in the future would be, subject to planning permission from local authorities, under which communities and stakeholders are consulted and there is a formal appeals process. Therefore, the planning legislation would lock in and control the thuggish nature of the Environment Agency if it were ever to get to that point, which under the leadership of the noble Lord, Lord Smith, would be unthinkable. In primary legislation, the Environment Agency is under a duty of sustainable development and is required to consider socio-economic as well as environmental factors before it can move forward with any schemes. Under the Bill, it is required to consult with all the flood risk management committees in an area, both regional and local. The government guidance that applies to this part of the legislation requires that decisions have to take account of the views of landowners and local communities and, in general terms, the Environment Agency can also be the subject of complaint to the ombudsman and to judicial review. So the safeguards are not only belt-and-braces, string and Velcro, there is a bit of chewing of gum as well. There are severe constraints before the Environment Agency can go ahead with such schemes. I hope that there is not a concern that there will be a kind of wholesale annexation of agricultural land. The extent of the land involved is very tiny. I asked some of the folks involved in this for a calculation; they came up with the wonderful figure that 0.0034 per cent of agricultural land per annum has been identified as being necessary to meet the habitats directive requirements. That is three-thousandths of 1 per cent per annum, which is less than we lose per annum in urban development and in pony paddocks—I declare an interest as a horse owner—and it is certainly less than the 2,500 hectares per annum in the current tree planting policy. This will not happen wholesale; it will not threaten food security or the beneficiaries of farmers and landowners. Compulsory purchase has never been used in this; it has always been done entirely by negotiation. I hope the noble Lord, Lord Taylor, is persuaded. Clause 38 is very important because, in a way, it enshrines and codifies what the Environment Agency has done on a bit of a wing and a prayer in the past but would now be prevented from doing in that way. The Bill defines flood risk in a different way and refers to harmful things, and the clause would allow the Environment Agency to do beneficial things in a responsible way. If the clause is omitted from the Bill—I hope it will not go during the wash-up— the Environment Agency will have a more limited and inflexible approach to flood risk management and habitat improvement, and would have to be less supportive of farmers and less effective in its use of public money. That would be a thoroughly bad deal for everyone.