Select Committee on Environment, Transport and Regional Affairs Appendices to the Minutes of Evidence


Supplementary memorandum by the Minister for Housing, Planning and Construction, Department of the Environment, Transport and the Regions (FP 10A)

  At its hearing on 22 November I agreed to provide the Committee with further information on two matters:

    —  the number of appeals that our records show have been upheld following refusal by local authorities to allow development to take place on flood plains;

    —  how accurate information about flood risk at a particular site can be made available to prospective buyers of property, as part of the wider process of property searches.

1.  APPEALS AND FLOOD RISK

Planning Appeals Information

  The Planning Inspectorate has identified 1032 appeals in the last 10 years where flood risk was an issue. Of these 299 were allowed and 653 dismissed (a refusal rate of 69 per cent). 33 enforcement notices were upheld, 19 varied and upheld and 19 quashed and there were nine split decisions (some parts upheld, some parts quashed).

  The appeal information held by the Inspectorate does not show whether the Environment Agency or its predecessors sustained objections. This would require careful examination of all the decision letters in individual cases. However, the overall success rate in terms of accepting the need to avoid adding to flood risk is about 2:1, on the assumption that flood risk was actually a reason for refusal in the first place. In some, if not many, cases it will not have been the primary one. In addition, the final decision to grant permission may have taken on board conditions suggested by the Agency to mitigate the flood risk, so even the cases actually allowed may not all represent a damaging outcome in flooding policy terms.

  A smaller exercise conducted after the floods at Easter 1998 found only four appeals allowed despite Environment Agency objections, out of a sample of 20 in which drainage/flooding was a major issue. Examination of the decision letters revealed that they were:

    —  two applications for single storey rear extension (kitchen) to a house. The extensions and the house itself were set above flood level and had floodgates beneath to allow floodwater to pass through;

    —  an outline application for residential development. The sole reason for refusal was that it was shown on flood maps. The decision letter records the Environment Agency as having withdrawn its objection subject to conditions.

    —  an enforcement appeal against a notice to remove double gates and fence posts from land at a rugby club and an appeal against refusal—within a washland where development would result in increased risk of flooding or loss of natural flood plain. Following submission of a revised plan, the Environment Agency withdrew its objection.

MAFF's High-Level Targets for Flood and Coastal Defence

  It is clear that systematic information linking sustained objections to development proposals on flood-risk grounds by the Environment Agency is very difficult to extract from the appeal data held by the Planning Inspectorate. However, a recently developed and potentially more useable source of information is the High-Level Targets for flood and coastal defence published by MAFF in November 1999.

  These Targets were a response to the Agriculture Select Committee report on Flood and Coastal Defence HC 707-I Session 1997-98. They provide the framework for ensuring and demonstrating delivery of the Government's stated policy aims and objectives for flood and coastal defence, as set out in the 1993 Strategy for flood and coastal defence in England and Wales.

High-Level Target 12—Development in Areas at Risk of Flooding

  This requires the Environment Agency (in partnership with local planning authorities) to report to MAFF and DETR annually from June 2000 on the Agency's response to planning applications, identifying cases where:

    (i)  the Agency sustained objections on flood risk grounds; and

    (ii)  final decisions, either by the local planning authority or on appeal, were in line with, or contrary to, Agency advice.

  The June 2000 report covering the period from October 1999 to March 2000 reported 22 appeals, of which 12 were determined in line with Agency advice on flooding (55 per cent of decisions), five were contrary to their advice and five were pending.

  The five contrary cases were:

    1.  demolition of an existing workshop and replacement with two dwellings—loss of flood storage and obstruction to flows—Inspector acknowledged this but considered there was only minor addition to the existing footprint, and that floor levels could be raised to overcome Agency objections;

    2.  six new dwellings—risk to life and loss of flood storage area. The Inspector did not agree that the flood risk element was significant enough to justify refusal and that it could be mitigated, but refused the appeal on other grounds;

    3.  extension to house—reduction of flood plain storage area. The Inspector considered the effect of one house extension was not significant;

    4.  50 sheltered houses on a former cinema site—premature until flood alleviation scheme constructed. The Inspector considered the risk of flooding was acceptable and saw no need to raise floor levels;

    5.  erection of polytunnels—obstruction to flood flows. The Inspector accepted flood mitigation measures proposed by the applicant.

  Of the 22 appeals reported, 13 (59 per cent) were minor in scale. There were eight house extensions or garages, and five were for a single house (including conversion of a garage to living accommodation).

  The Environment Agency also referred in their Memorandum to the Committee in November (para 6.2) to planning permissions being granted contrary to their advice in around 21 per cent of the 1,000 or so cases to which they sustained objections in 1999-2000. This data set includes the October 1999-March 2000 data referred to above (in the case of appeals) and below (in the case of all applications). We have analysed the details provided by the Environment Agency on 213 permissions granted by 105 planning authorities between April 1999 and March 2000 against its advice. The predominant reason for objection was variously described as "development in flood plain" or "at risk of flooding" (121 cases). Other reasons were "impedance of flood flows" and/or "reduction of flood storage" (28), "access" (38), "run-off considerations" (6) "culverting" (5) and "insufficient details as required by Circular 30/92" (15)—the current planning guidance that PPG 25 will replace.

  There were 130 applications for residential developments (including mixed-use development) of which 70 (54 per cent) comprised two dwellings or less. There were 47 applications for industrial, office or retail uses. The remainder included applications for recreational and agricultural uses, caravan sites, two hotels, one hospital extension and one school.

  The breakdown of "approved against advice" cases by GO-Region was:

South West
68
South East
40
North West
50
West Midlands
16
East Midlands
12
North East
5
East of England
11
Yorkshire & Humberside
11
London
0


  The June 2000 report on High-Level Target 12, to which I have referred, provides greater detail of 403 applications in 66 planning authorities to which the Agency had sustained objections. Of these 212 were still awaiting decision. Of those decided, 108 (51 per cent) were decided in line with the Agency advice, and 83 were contrary to Agency advice (included in the full-year analysis above). But in 11 of those cases the planning authority did not receive the Agency advice before taking its decision.

  The 72 relevant applications that were permitted contrary to Agency advice, after it had been received, included 48 relatively minor cases (67 per cent) as follows:

    —  12 for change of use, largely to residential from existing use (eg barn, stables, office);

    —  13 for extensions to existing buildings, of which three were non-residential;

    —  eight for conservatories; and

    —  15 for single dwellings, of which two were replacement dwellings.

  There were only 12 (17 per cent) applications approved for significant developments, of which three were for approval of reserved matters on the same site (up to 91 dwellings in one case) and one for 72 dwellings with a long-standing allocation in the development plan. The other 12 cases were for utility or industrial purposes (sewage treatment works, recycling centre, vehicle repair and maintenance building, warehouse development), a retail unit with car parking, agricultural buildings, a health, sports and conference centre and an extension to a nursing home.

  The reasons for decisions being taken contrary to Agency advice were not stated in all cases. Where the reasons were stated, the predominant reason for the minor developments was that the authority did not consider the impacts to be significant. In many cases, however, it had then imposed conditions that had been suggested by the Agency should the authority be minded to permit the development, which suggests that its objection was a technical one to secure mitigation, rather than outright opposition. In other cases, there were already existing permissions for development on the site. In only two cases was there no reference to flooding having been taken into account in the balance of considerations leading to the decision.

  The 108 decisions taken in line with Agency advice included refusals due to flood risk, loss of flood storage areas or obstruction to flood flows and increased run-off, as well as developments permitted subject to conditions proposed by the Agency. Over 30 of these were for developments of two dwellings or less.

  Of the 212 applications not yet determined, about 50 are for two dwellings or less, though there is a wide range including developments of up to 242 dwellings.

Conclusions

  Our experience in looking at this issue over the past three years shows that there was only a limited amount of readily accessible planning data on development in flood plains, whether permitted by local planning authorities or on appeal. We recognised this in the evaluation of the 1998 floods, and measures were put in hand to enable the data to be collected. As I hope my commentary indicates, we believe the new MAFF High-Level Targets will provide a valuable new source of information.

  In addition, the recently developed National Land Use Database provides information on the location of previously developed sites. The following estimates are based on the sites reported by local authorities in 1998. The estimates have not been adjusted to account for incomplete returns and so differ from the published statistics, but this limitation is not considered to affect the validity of the estimates.

  Based on sites reported by responding local authorities, the estimated total area of previously developed land suitable for housing in England, on 1 September 1998, was at least 22,210Ha, of which 2,960Ha (13 per cent) were within areas of flood risk identified on the 1999 Indicative Flood Plain (IFP) maps. The percentages within flood risk areas for each region were:

Government Office Region
per cent of all "NLUD" previously developed land judged suitable for housing that was within IFP areas
North East
2
North West
5
Yorkshire & Humberside
16
East Midlands
11
West Midlaands
7
East of England
15
London
36
South East
19
South West
10


  Sites with detailed and outline planning permission for housing were estimated to amount to at least 5,100Ha of which 455Ha (9 per cent) were within IFP flood-risk areas. Land allocated for housing in local plans (including some in draft plans) was estimated as 3,790Ha, of which 420Ha (11 per cent) were in IFP flood-risk areas.

  Finally, the Land Use Change Statistics provide information on the location of dwellings built in England. These show that, between 1995 and 1999, an estimated 11 per cent of new dwellings built were located within areas of flood risk identified on the 1999 Indicative Flood Plain (IFP) maps. The following table shows the regional variation.

Government Office Region
per cent of new dwellings within IFP areas
North East
2
North West
5
Yorkshire & Humberside
11
East Midlands
13
West Midlands
5
East of England
9
London
35
South East
9
South West
6


  This compares to a national average of 10 per cent (between four and five million people) of the population of England living in flood risk areas, in about 1.7 million homes, and about 12 per cent of the agricultural land being in such areas. Overall, the recent rate of housebuilding in the flood risk areas is broadly in line with the proportion of population already in such areas.

  Within these totals, the average density of housing constructed in flood-risk areas in England in the period 1995-1999 was 30/Ha, compared to 25/Ha for the country as a whole. This reflects the high percentage of dwellings built largely on previously developed sites in London (which accounts for 10 per cent of all dwellings but 33 per cent of those in the flood plain areas), where housing densities are likely to be higher.

  Combined with the bedding in of the MAFF High-Level Target I have described above, the data we have now arranged to collect through the National Land Use Database, and the Land Use Change Statistics, will give us a much firmer base for monitoring the effectiveness of planning policies on development in flood risk areas, following the final publication of PPG 25, than we have had in the past.

2.  SEARCHES

  Land searches carried out as part of the conveyancing process for prospective purchasers of property are not statutory. They rely on voluntary arrangements agreed between the Local Government Association and the Law Society. These use a standard form, which does not currently include flood-risk information. I understand, however, that the Environment Agency currently provides flood-risk information on request over the telephone on a post code basis free of charge. On 7 December, the Agency will also place the revised indicative flood plain maps on the Internet with a search facility by postcode, at its site www.environment-agency.gov.uk. I also understand that the Law Society is currently considering whether flood-risk information should be added as a question on the standard search form.

  Definitive flood-risk information is produced by the Agency. Most of the information on flooding held by local authorities is derived from the Agency, and local authorities cannot be held responsible for information provided by other parties. In this respect the position is similar to the subsidence/mine shaft information also referred to by the Committee. Mining searches are not addressed to local authorities but to the Coal Authority, as the holders of the information.

  I know there are similar concerns relating to mining information and its potential effects on the value and saleability of properties. Part of this arises because of the absence, in many cases, of definitive information as to whether a particular mineshaft might actually pose a risk to the property concerned (or even whether it is there at all). The same uncertainty would arise in respect of the accuracy of flood-risk maps at the level of detail of individual sites, particularly when they are not produced to a uniform standard. The 1999 indicative flood plain maps use the definition of flood plain in Circular 30/92.

    "All land adjacent to a watercourse over which water flows at time of flood or would flow but for the presence of flood defences where they exist. The limits of floodplain are defined by the peak water level of an appropriate return period event on the watercourse or at the coast. On rivers this will normally be the greater of the one in 100 year flood (with an annual probability of this flood limit being exceeded of 1 per cent) or the highest known water level. In coastal areas the one in 200 year flood (with an annual probability of the limit being exceeded of 0.5 per cent) or highest known flood will be used. In both instances, where a flood defence exists which protects to a greater standard than those defined, then the floodplain is the area defended to the design water level."

  Thus, if defences are to the 0.1 per cent standard, as in London, the flood plain shown is the limit of the flood with an annual probability of this limit being exceeded of 0.1 per cent, rather than the 0.5 per cent risk that would be expected in an undefended area subject to coastal/tidal flooding. This higher standard probably increases the total flood-risk area by less than 10 per cent.

  The general flood-risk information held, updated and periodically revised by the Environment Agency, will be sufficient for the purposes of preparing and revising development plans. However, in the case of purchases of individual properties there is no substitute for a site-specific enquiry directed to the Environment Agency if the general information indicates there is a flood risk issue to check.

  The Seller's Pack initiative we have already announced will require sellers of homes and their agents to assemble for prospective buyers a pack of documents and information about the property. The Seller's Pack, which will be available at the time the property is marketed, is likely to include the results of local search enquiries. The components of the Pack have not yet been determined. They will be prescribed by Statutory Instrument after the main legislation has been enacted. In working up the components of the Pack we will of course consult widely with all interested parties. Clearly, in the light of current concerns, we shall need to consider as part of this process what information might be included on flood risk, and what guidance or explanation might be required on how to interpret it.

  The April 2000 draft of PPG 25 recommended that areas of flood risk should be shown on local plans in sufficient detail for sites at risk to be identified, while recognising the inherent uncertainties in any delineation of such risk areas. While this did not meet with universal approval in responses to consultation, it would result in the planning search process indicating that a property was in an area identified as being at risk of flooding.

  Paragraph 40 in the consultation draft of PPG 25 also made reference to local authorities considering making flood risk information part of their land-search procedures. The Law Society did not comment on this in its response. However, the City of London Law Society welcomed this proposal as it had understood that there had been some doubts in the Environment Agency as to whether such information should be made available to members of the public. It said it would be useful for the Agency to confirm that information relating to flood risk should be publicly available, which it has done in announcing the forthcoming Internet publication of the indicative flood plain maps. More detailed site-specific information would also be available on request possibly subject to an appropriate charge.

  The Local Government Association supported this idea in principle and said that incorporation of flood-risk information in local plans would make it available in any case, as I have indicated above. However, it expressed similar concerns to those that have already been voiced in relation to mining searches. It would be essential to ensure that the information was accurate and clearly explained and that there was a campaign of public information to back the system up. Several authorities had observed that the public might not understand the difference between differing degrees of flood risk and that:

    —  the information may cause anxiety and distress:

    —  there would be a risk of damage to property values; and

    —  it could have potential for causing planning blight in areas identified as at risk.

  It is these concerns that lay behind my comments to the Committee about the dangers of providing raw information without the means for prospective purchasers and their advisors to evaluate it and reach a properly informed conclusion.

  A number of local planning authorities said in their responses that, since this was Environment Agency information, they would refer enquiries to the Agency.

  The House Builders' Federation did not mention the issue in its response but it did express concern about the indicative nature of flood plain maps. In their opinion, flood plain maps should be definitive with a minimum guaranteed level of confidence in their accuracy and prepared to a consistent national standard. They should be based on the best possible prediction available at the time. Only then would they be fit for planning purposes (and presumably for search purposes too).

  This illustrates a critical difference between the information needs of prospective developers of land and prospective purchasers of homes. It applies equally to mining and flood-risk information. A developer when seeking information seeks to determine what constraints would need to be overcome to enable his development to proceed economically. If a particular constraint is identified, it can be investigated and dealt with as part of the development if costs are not prohibitive. Planning guidance on both mining and flooding emphasises the desirability of pre-application discussions to determine such constraints and how they might be overcome. It also stresses that developers should consult the relevant expert bodies (the Coal Authority and the Environment Agency, respectively) and obtain their own expert advice on the extent and nature of the constraints and means of mitigation.

  In contrast, prospective homebuyers when faced with an unqualified statement that there is a mineshaft in the vicinity of the property, or that it is in an area of flood risk, will tend to reconsider urgently whether they wish to go ahead. They will often not go to the trouble of seeking further information, which may require the purchase of further professional advice and possibly a site investigation, particularly if there are other properties on the market that are not similarly constrained.

Conclusions

  All these considerations lead me to conclude that we must proceed with caution and that the present approach in draft PPG 25 is fundamentally sound. This is that flood-risk areas based on the latest Environment Agency information should be identified as a consideration in the planning search process. Beyond that, I think it is for the Local Government Association and the Law Society to take forward their consideration of whether flood-risk information should become part of the voluntary land-search arrangements. In doing so they would need to consider, in consultation with the Environment Agency, how information was made available to purchasers and advisors that provided not only all the facts but also the means of interpreting those facts. And the Sellers' Pack provides an opportunity to build on this developing approach.

  We shall, however, look again at this issue in finalising PPG 25, and may expressly seek views on it if we issue a revised draft for further rapid consultation. In doing this, we would, of course, take into account any views the Committee may wish to express on the matter.

Nick Raynsford MP

6 December 2000


 
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