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
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as having withdrawn its objection subject to conditions.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 refusalwithin 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
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 12Development 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
The five contrary cases were:
1. demolition of an existing workshop and
replacement with two dwellingsloss of flood storage and
obstruction to flowsInspector 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 dwellingsrisk 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 housereduction 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
sitepremature 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 polytunnelsobstruction
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:
|East of England||11
||Yorkshire & Humberside
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
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 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.
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
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
|Yorkshire & Humberside||16
|East of England||15
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
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
|Yorkshire & Humberside||11
|East of England||9
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.
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
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;
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.
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