Memorandum by Ian Sinclair Esq (FP 08)
INQUIRY INTO "DEVELOPMENT ON, OR AFFECTING,
1.1 I welcome the short inquiry which the
Environment, Transport and Regional Affairs Committee has decided
to undertake into Development on or affecting the Flood Plain.
1.2 I also welcome the initiative which
has resulted in the production of Planning Policy Guidance "Development
and Flood Risk" (PPG 25). However, as mentioned later, I
consider that the Planning Policy Guidance should be up-dated
and strengthened in the light of the considerable flooding which
has taken place through many parts of England and Wales in October
and November 2000. The concern of the public is such that it considers
that this opportunity should be taken to ensure that the appropriate
Government and legislative action is taken to protect the public
and put right some of the practical defects of the past.
1.3 It is hoped that the Committee will
look again at the Conclusions and Recommendations contained in
the Sixth Report "Flood and Coastal Defence" of the
Agriculture Committee of the House (Session 1997-98).
1.4 In particular, I draw attention to the
sentence in paragraph 116 of the Sixth Report:
"Some of our recommendations will require
substantial change in existing legislation; however such change
is imperative and, in our opinion, unavoidable if a truly sustainable
and coastal defence policy is to become a reality. Making room
for the sea at the coast and for rivers in flood plains, fulfilling
simultaneously environmental objectives, will only come about
if the correct institutional mechanisms are in place to direct
1.5 In the context of this Inquiry, I consider
that there is an urgent need for a radical overhaul of legislation
relating to development on or affecting the flood plain, and this
also requires a radical re-thinking of the traditional legislation
relating to flooding, flood defence and land drainage.
1.6 Thus, the recommendations contained
in the following paragraphs are very relevant:
117(k) ("rationalisation of legislative
base of flood and coastal defence policy")
117(l) ("improving the delivery of national
strategy for flood and coastal defence")
117(t) ("integrating flood defence requirements
within the planning system")
117(u) ("financial obligations on private
117(v) ("dissemination of information
to the public and acceptance of flood and erosion risk")
I hope that the Committee will recommend to
the Government that action should be taken soon to improve and
up-date the relevant legislation.
2. GENERAL PRINCIPLES
Being general comments on Planning Policy Guidance
(PPG No. 25) "Development and Flood Risk"
2.1 It is recommended that the draft PPG
should be made more specific and take an even more pro-active
position towards preventing future problems.
In particular, the draft PP5 should be amended
and should emphasise that positive action needs to be taken on
the following aspects:
2.1.1 The Government should make a positive
commitment to a radical overhaul of the legislation relating to
flooding and flood defence, and that such action should take place
within the period of this Parliament.
2.1.2 Such legislation should deal with
2.1.3 The illogical divided responsibilities
and legal powers relating to "main river" and "non-main
river" and flood defence between the DETR and the Ministry
of Agriculture, Fisheries & Food, and between the Environment
Agency and local authorities. The Environment Authority should
be given responsibility for flood defence and related activities
on non-main rivers now undertaken by local authorities and riparian
2.1.4 The role of the Environment Agency
as a statutory consultee on planning matters, and on Building
Regulation matters, where the proposed development is in a flood
plain or is potentially subject to flooding, should be strengthened.
The Environment Agency should not, in effect, become the planning
authority or have a power of veto, but the local authority should
be under an obligation to follow the recommendations of the Environment
Agency, unless the planning authority can establish a valid environmental
objection for not doing so. Environmental considerations should
be given a greater priority in relation to other Government priorities,
such as the need for more housing and the protection of the Green
2.1.5 The principle of total catchment management
should be incorporated in legislation, and, as an example, the
Environment Agency should be given a specific statutory responsibility
to manage whole river catchments as a whole, with a greater responsibility
of anticipating and preventing flooding, rather than re-acting
2.1.6 There should be a more pro-active
approach to flood safety and new development, and should state
that development should only be permitted, as a matter of priority,
in low flood risk areas first, and there should be a search and
effort to cause development to be created in areas that were not
subject to high risk of flooding.
2.1.7 The practical effects of this revised
policy should be clearly stated, laying emphasis on such matters
as prescribing minimum standards of flood defence for new developments,
and ensuring that development was made resistant to flooding through
new design criteria, which would be incorporated in Building Regulations,
and so ensure that all development was better designed to be safe
and able to withstand flooding.
2.1.8 New development should be more forward
thinking and should take into account the likely effects of climate
change and be designed on a "worse basis scenario".
Another aspect of this is that the emergency services, such as
the Police, Ambulance Service and Fire Services, as well as the
Environment Agency and the Water and Sewerage Companies, should
be more closely involved in consideration of design and construction
of new developments. We should learn and benefit from the lessons
of the past. These services must be able to respond effectively
and quickly to emergencies, especially flooding.
2.1.9 There should be a far stronger emphasis
on the prevention of flooding in the future, making allowance
for the past experiences of flooding and possible future climate
change. Thus, a precautionary approach to preventing flooding
in the future, rather than having to take flood precaution measure
after the event.
2.1.10 The consequences of new development
on existing development, especially downstream in the catchment
of that particular stream and river, and in the larger receiving
catchments should be appreciated, and responsibility stated. Ideally,
increased run-off should be contained on that particular development.
There should be a much greater emphasis and requirement for sustainable
drainage systems, which do not increase the risk of flooding downstream
of the new development. Reference should be made to the recent
good design manual (published earlier in 2000) and these practices
should be required in new development. Where new development may
produce increased flooding on development downstream, it should
be the responsibility of the developer, or if appropriate of the
planning and statutory authorities, to protect that downstream
development and undertake works of flood protection, including
the enlargement of downstream bridges, culverts and removal of
3. PUBLIC EXPECTATION
3.1 The six principles of the guidance set
out on the first page of the draft PPP 25 are welcomed. Every
effort should be made by the Government to bring about a change
in the attitude and practice of the public, and also those bodies
charged with responsibility in flood protection matters.
3.2 The public expect that, where planning
permission has been given for development, especially a new modern
housing development, those houses will be protected from all reasonably
foreseeable flooding. The confidence of the public in the planning
of new development has been badly shaken and expects the Government
to take active steps to protect their interests. It is certainly
reasonable to expect the developer to make a major contribution
towards flood prevention and protection in and in the immediate
vicinity of the development to be built.
3.3 However, the wider and cumulative effects
of small amounts of development over a larger area must be considered,
and there should be a commitment by the Government, planning authorities,
local authorities, the Environment Agencies, and the water and
sewerage authorities to take remedial action to deal with those
consequences. This should be a statutory responsibility and the
necessary finance should be provided to make it a reality.
3.4 It would appear that the allocation
of land for development by means of Development Plans pre-dated
the current experience in the past 10 years or so of flooding
and other natural disasters. Thus, these allocations do not appear
to take into account the flood risk mapping programme that is
being undertaken by the Environment Agency. There seems to be
an inadequate understanding of flood risk, both for land to be
developed and the consequences of recent and proposed development
on land in the catchment downstream of any such development. Local
authorities should be required to undertake a review of all sites
which might be available or have been identified in Development
Plans. It is also essential that such reviews should be undertaken,
not merely by planning authority areas, but also on a river and
stream catchment basis, so that there is a comprehensive understanding
of the factors which would flow from any proposed development.
3.5 The practical consequences of having
used areas which were previous flood plains, both upstream and
downstream of towns and cities, and of seeking to confine rivers
and streams within culverts, or restricted walls or banks, or
even buildings, needs radical reassessment. The beneficial effects
of retaining existing and restoring floodplains, where this is
desirable, should be considered as an important strategy, rather
than seeking to rely on flood defences, which were often constructed
in the past when there was a different regime and frequency of
flooding. In this connection, the powers of local authorities,
the Environment Agency and the sewerage and water companies should
be extended to allow them to use compulsory powers of acquisition
and demolition of obstructions in watercourses and in the flood
plain. This would include doing works of enlargement and reconstruction
of downstream culverts and bridges and improvement of flood prevention
3.6 It may be true in law (as stated in
PPP 25, paragraph 14) that the primary responsibility for safeguarding
land and other property against natural hazards, such as flooding,
remains with the owner. This concept needs reconsideration where
flooding and damage to property is caused by upstream development
which has occurred since the owner acquired the property and over
which he has no development.
3.7 The injustice of imposing considerable
expenditure on the owner which results from erosion of the banks
of watercourses or the consequences of flooding, or taking physical
construction precautions, should be considered. Why should the
owner have to bear the worry, expense and trouble of such matters
which result from development over which he has no control? If
the statutory authorities have caused such damage, or allowed
development which aggravates such flooding, there should be a
statutory responsibility for the statutory authorities to rectify
the problem at their expense, and not at the expense of the owner.
4. FUTURE DEVELOPMENT
4.1 It should be transparently clear that
flood risk has been taken into account in Development Plans. Where
land has been allocated for development which is in an area that
is potentially liable to flood, or is protected by flood defences
(which may be over-topped) or which is below the level of watercourses
in the area, special care should be taken and precautions implemented.
These principles should apply to redevelopment of existing sites.
4.2 The local authority should be required
to undertake a full and proper investigation into flood risk and
clearly state what effect the development will be likely to have,
especially on existing downstream development. All parties concerned
with development should be obliged to identify and minimise the
flood risk, both direct and indirect. This should include not
only flooding from watercourses but also from surface water and
foul water sewers. Building Regulations should be amended to ensure
that all surface water arising from a development (even in times
of storm or flood) can be safely contained on site without causing
flooding and other problems downstream (such as premature foul
and storm water overflows, and so causing pollution).
4.3 The necessary costs of adequate protection
should be borne by the developer and also in many cases, the cost
should fall on the local authorities and the Environment Authority.
Proper precautions and flood defence measures should be undertaken
at the time of the development, and not at some time afterwards
when flooding has taken place.
4.4 Where possible, the object should be
that all new developments should retain water falling on, or arising
from, such development and should be retained on such development.
Measures such as permeable pavements, parking areas and hard-standings
should be incorporated, with flood retention reservoirs on site
(as ornamental features) should be required in normal cases.
4.5 The principle should be that there was
no greater run-off from the new development than when it was green-field
site. That this is practical has been shown on a number of Motorway
Service Station sites and other Green Tec sites.
4.6 Buildings should be designed as to be
relevant to the situation in which they are and so relevant to
likely risks. Buildings should be designed and built so that they
may be re-occupied and used in a short period of time after flooding.
For example, if appropriate, buildings should be raised above
known or expected flood levels, with precautions incorporated
in the construction so as to prevent the ingress of flood water.
In addition, precautions such as solid floors and walls, electrical,
gas and telephone and other services coming from above rather
than the ground, and heating facilities not being placed in cellars
or at lower levels, should be incorporated.
4.7 Developments should be planned having
regard to dealing with emergencies, such as flooding. Measures
such as flood-free access, protection of electric and gas power
supplies, protected supplies of fresh water and sewerage and telephone
and communication facilities, should be taken into account when
planning or allowing development. Siting of sensitive public requirements,
such as hospitals, doctors' surgeries, fire, ambulance and police
services, should receive careful consideration in relation to
possible natural disasters, including flooding.
5.1 There is much to be commended in the
draft PPG 25. The extra emphasis on the threat and consequences
of flooding arising from development in the flood plain is welcomed.
It is essential that future development and re-development should
be carried out in a way that has more regard to the effect of
such development on the environment and having regard to the changes
in weather that can reasonably be expected. Any future development
must have greater regard to the improvement required for the benefit
of future generations, as well as immediate needs.
5.2 In the context of this Inquiry, the
draft PPG 25 should be strengthened to ensure that the risk and
consequences of flooding should receive detailed and practical
thought in the planning and development stages. It is also hoped
that this PPG 25 is only an interim stage and that a thorough
re-examination of the law and practice relating to flooding and
development will receive a high priority in the near future by
the Department of the Environment, Transport and Regional Affairs,
and then subsequently by this Committee, and then that it is transformed
into legislation by the Government and Parliament.
I C Sinclair, LLB, Solicitor
Sinclair Consultancy Services
Former Authority Secretary and Solicitor
Severn Trent Water Authority
17 November 2000