1.1 The Humber Strategy is a high level document directed towards dealing with ever increasing risk without any realistic increase in funding all in the face of vast swathes of mainly restrictive EEC regulations which appear to increase exponentially with time.

1.2 Defra and the EA have dealt with this by moving to change the remit of those bodies responsible and by ignoring the fundamental principles involved while concentrating on process rather than practice.

1.3 Flood Defence and Land Drainage, which are inseparable, have been removed from the language, being replaced by terms such as Flood Risk Management, Water Level Management and Environmental Enhancement.

1.4 The first law of drainage, as Newton would doubtless point out, has not changed. Water only runs downhill taking the least line of resistance except that is when it is pumped.

2. DRAINAGE EVOLUTION

2.1 Lets go back to the beginning. Today’s internal drainage districts are coterminous with the flooded washland, marsh and moor formed out of glacial valleys. The early settlers using practical common sense, something not very prevalent today, first pitched their camps on slightly raised areas of ground. They then built their settlements at the same localised high points and proceeded to work the land around them.

2.2 Settlers quickly realised that the land remained wet and set about constructing tidal defences and proceeded to warp the land to good advantage. Things really took off in the 1700’s when canalised main drainage channels were constructed to provide positive drainage to the generally wet land. Habitation followed, transport links were made, and industry, commerce and agriculture became established. The formation of the land drainage system was the foundation which made rural land use and habitation possible.

2.3 Drainage systems were, however, still relatively inefficient and during the post second world war period successive Governments sponsored main river and land drainage improvement schemes to protect property and increase agricultural productivity in order to secure the nations food supply. The rural economy grew as a consequence of this.

3. DRAINAGE PROBLEMS IN LOWLAND AREAS

3.1 The interconnected flood defence and land drainage system comprises embanked estuarial and main river defences, main river channel, IDB maintained main arterial watercourses, and riparian owner ditches. It can only operate effectively as a combined land drainage and flood defence system if all component parts connect together in an efficient manner and work in harmony with each other. A good standard of maintenance is essential throughout.

3.2 A large proportion of the natural floodplain lies at a level of up to 4 metres below spring tide level and is protected by Humber estuary floodbanks. These also provide protection to urban settlements and nature conservation sites.

3.3 Main drainage outfalls from such areas are tide locked and can only discharge for limited periods twice daily at low tide. Adequate storage capacity is necessary within the channel system to accommodate peak flow between tides. The main channel system, particularly through the lower reaches, must be maintained to a high standard to provide maximum flow rate in draining water towards the estuary outfall to achieve maximum discharge during the low tide period.

3.4 In upland areas where there is adequate gradient, main river channels tend to be reasonably self-cleaning. In the lower reaches, through the lowland plain, where gradients are relatively flat and flow is sluggish, rivers are much less self-cleaning and a high degree of siltation occurs. This is particularly so over the final 5 to 15 mile length immediately upstream of estuary sluices. This length is arguably the most critical length to maintain as all else depends on it.

4 LAND DRAINAGE IN RURAL AREAS

4.1 In the consultation paper there is the question that land drainage is mostly a rural issue (3.3), and calls for better main river maintenance (3.4) as discussed above. If you analyse the rural lowland plain something in excess of 95% of the land base consists of green belt, a large proportion of which is agricultural. It is not surprising then to find that the vast majority of maintained drainage channels pass through the rural green belt.

4.2 Equally, because rural developed areas are generally situated on slightly higher ground they tend to be located at the upper end of arterial systems. These developed areas all discharge water into the rural drainage system whereby it is carried away across the drainage district to estuary outfall and back into the sea.

4.3 This also applies to numerous developed areas located external to the IDB district where village communities and townships are situated on even higher ground beyond the IDD boundary. These settlements have the advantage of gravity drainage which sheds water into the lowland district through which it has to be effectively conveyed before reaching the estuary outfall.

5 FLOODING AND CONTRIBUTORY CAUSES

5.1 If you analyse recent flood events you will mainly find that the areas which coped best with flooding were internal drainage districts which cover lower lying areas of land. This may seem surprising where the risk is greater, but there are reasons for this.

5.2 The worst situations occurred in restricted upland river corridors or, in the case of Hull, a large city complex draining directly to estuary.

5.3 The reason that IDB districts achieve relatively successful outcomes to such flood events is because managed drainage systems are in place to serve all user requirements. These systems keep the land reasonably dry by control of the water table and therefore porous enough to soak up large volumes of floodwater in addition to the volumetric storage capacity of the drainage channels which are in place.

5.4 Where flooding has occurred within the IDB district it has mostly been as a consequence of main river overtopping or the inability of main river to convey and discharge water effectively to estuary due to channel flow being restricted. This is because main river channel sections have been compromised as a consequence of siltation and neglect of maintenance. It has also been due to the EA keeping retained water levels in main river relatively high for ecological reasons in the face of predicted heavy rainfall when sluice gates should be opened in advance of any flood event to create maximum storage capacity in the river channel.

6 CONSEQUENCES OF NEGLECT

6.1 I doubt whether there is a farmer anywhere who would argue that people’s homes and property should not be protected from the entry of floodwater as a first priority. What farmers will argue is that whereas some agricultural land may be vulnerable to flooding in the short term all drainage systems should be managed and maintained to a satisfactory standard to minimise such risk and to allow land to drain down effectively immediately after the flood event.

6.2 This can be reasonably achieved at relatively low cost by routinely carrying out essential channel maintenance work. IDBs do this whereas the EA does not do nearly enough. When challenged a senior Environment Agency spokesman has stated that the EA has a statutory duty to conserve the environment (including fishery), it has permissive powers to undertake flood defence (and therefore discretion to do or not do as it chooses), but it has no obligation whatsoever to carry out work for land drainage purposes. This may be a correct statement of fact under current legislation and policy but I would argue that it is wrong: -

6.3 Many of today’s composite land drainage systems in low lying areas, including main river, were originally constructed centuries ago under various acts of parliament essentially as drainage channels. This carries with it an obligation to forever maintain; therefore to neglect or withdraw from maintenance is contrary to the original enactment. If this is carried through to ultimate finality there will be gradual erosion of the rural land base. The rural economy will falter, the infrastructure will crumble, transport links will become severed and the populous will move out and where to? The entire lowland plain will revert to swamp.

7 CASE STUDIES

Critical Ordinary Watercourses (COWS) – Withdrawal of Maintenance

7.1 After the November 2000 flood event IDBs were asked to identify any locations where urban flooding had occurred. MWDB advised of problems in Market Weighton and North Cave. Both townships are external to the drainage district but water draining from these towns drains through upland watercourses running through the drainage district. Although the point of criticality was due to restricted local channels within the townships Defra required that the whole connecting length including the extensive length through the IDD should be enmained and classified as a COW.

7.2 The IDB had for centuries maintained these watercourses to a satisfactory standard for the benefit of drainage ratepayers whose lands drain into them. The Environment Agency took the view that maintenance of the connecting length of COW was not essential in protecting the critical urban area situated further upstream and standing several metres higher in the catchment. The EA then proceeded to neglect maintenance of these interconnecting channels. At the time of the 2007 flood event these channels had become weed infested and there were other obstructions to flow. Flooding to land and property occurred within the IDD. Watercourse embankments were eroded and these have not been repaired since. The Environment Agency has stated that “As this embankment is not a formal flood defence and there is no property at risk it is unlikely that the EA would carry out any remedial work”. This amounts to effective withdrawal of maintenance in rural areas. The IDB would have carried out all such works as a matter of routine and has dealt with extensive flood repair damage similar to this on its own adopted network of arterial drains.

7.3 When COWs were transferred to the EA there was an issue regarding the transfer of assets. The EA would not accept responsibility for any assets attaching to the watercourse which did not directly affect flood risk management. This included a fish pass constructed by the IDB at the request of the EA when carrying out improvement works some years earlier. The IDB had routinely maintained this asset. Since the watercourse became a COW the fish pass has become neglected. The EA view is that this ‘non critical’ asset should revert to the riparian owner which in this case is the highway authority who would have no interest in the matter.

Flood Storage

7.4 More recently articles have appeared in the local press indicating that the Environment Agency has identified various sites in East Yorkshire as possible locations for flood storage. This included a reference to the Market Weighton area. Ratepayers expressed concern to the Board. The IDB wrote to the EA’s Regional Director on 27 November 2008 expressing concern and seeking explanation of what was being reported. Also setting out the potential implications for the drainage district where several pumped catchments were in place. The AFRM responded to this by telephone explaining that there must be some mistake and that the EA did not propose to issue a written response to the Boards enquiry. The consultation paper at 2.12 clearly indicates that the EA is considering such possibilities. The IDB has not been made aware of any such proposals.

Flood Warning

7.5 During a brief respite from dealing with water level management issues at the height of the June 2007 flood event I decided to test the value of the EA Floodline service. At this time water had already overtopped main river defences within the drainage district causing localised flooding. Having dialled in I listened to all the introductory messages before being guided to the usual options menu i.e. press 1 for this or 2 for that etc. After spending 5 minutes working through several layers of options I eventually homed in to the nearest place I could find to the Market Weighton IDB. The recorded message said that that there were no flood alerts for this area!

8 FUNDING AND REPRESENTATION

8.1 There are questions raised regarding who should pay for land drainage. There is also ongoing diversion of funding away from rural areas to subsidise urban priorities. This comes back to the argument discussed earlier that urban drainage discharges into rural systems through which it is conveyed to estuary waters. Under the proposed ‘Flood and Water’ bill there is risk that funding from special levy paid to IDBs could also be diverted, also that upland water contributions might be stopped. This would make the rural situation considerably worse.

8.2 Drainage rates and special levies are equitably based but this is often overlooked. The agriculturalist pays a direct rate to the IDB for which he expects a reasonable standard of flood defence and land drainage to be provided. The IDB in turn pays a precept to the Environment Agency for which it expects a reasonable standard of main river maintenance on behalf of its ratepayers. The Special Levy paid to the IDB by local councils is subsidised by central government. This is based historically on the rateable value of all other non-agricultural, i.e. developed land within the drainage district. This value was already factored down to balance the proportionate benefit to the property owner etc, against the productive benefit to the farmer. The established rating and special levy system is a very equitable funding mechanism as it stands and should not be tampered with.

8.3 It is also reasonable that the agricultural landowner should have adequate representation on IDBs as the vast proportion of IDB watercourses and main river pass through agricultural land. The farmer not only derives benefit but also suffers most of the necessary disturbance from operating authorities in attending to drain maintenance carried out on behalf of the whole community.

9 CAPITAL FUNDING – OUTCOME MEASURES

9.1 It is stated that funding issues are central to this debate (1.4). I have explained issues relating to normal funding in IDB districts in the preceding paragraph. Funding of capital schemes has also become an issue particularly since Defra funding was passed to the Environment Agency to distribute to all operating authorities including the EA itself.

9.2 Out of this has come the ‘Outcome Measures’ prioritisation mechanism. When the many flood defence and land drainage improvement schemes were first put in place after the war they were justified on the basis that cost benefit ratios must be in excess of one. Whereas these original works, e.g. pumping stations, now require refurbishment, under ‘Outcome Measures’ the required cost benefit ratio has to be greater than five, and this only contributes to part of the points required for scheme approval. Additional points must also be scored for urban protection, social deprivation and environmental enhancement. This prioritisation system is so heavily biased against work in rural areas that it is proving impossible to gain approval for capital works such as pumping station renewal which projects attracted up to 70% grant when they were originally constructed. The requirement has not changed and this position is unsustainable.

9.3 The original need for pumping stations in the Market Weighton drainage district was not just to improve drainage but also because main river had been converted into an embanked upland water carrier by the River Authority. This rendered gravity drainage ineffective in the lower third of the district. It also comes back to the need for EA main river to work in harmony with IDB main arterial watercourses where essential maintenance standards must be upheld throughout the entire interconnected drainage system covering vast areas.

10 CLIMATE CHANGE IMPACT

10.1 If predictions are correct climate change will make all matters more critical. Sea level rise affecting estuary waters will incrementally reduce the time available on each low tide for discharging inland waters to estuary. Simultaneously increased precipitation (predicted at +20%) will significantly increase the volume of surplus water having to be stored within inland drainage channels prior to discharge to estuary. This is the ‘double whammy’ effect, i.e. more water to be stored and less time to dispose of it.

10.2 There are a number of ways of preparing for this but when these have been put to the Environment Agency all proposals have been dismissed on the grounds that under present government policy, where funds are limited, works in rural areas carry insufficient priority. The fundamental requirement is of course that all main drainage channels including main river must be maintained for maximum efficiency but this is not accepted by the EA as viable on priority funding and ecological grounds. The level of funding needs to be increased.

11 DRAFT FLOOD AND WATER MANAGEMENT BILL

11.1 The proposed Flood Bill carries serious implications for IDBs. The Defra consultation document expresses concerns that IDBs focus on farmers, land drainage, and agricultural efficiency to the detriment of nature conservation and wider government policy. This may appear so but as explained above it is because the bulk of the drainage system is situated in the rural green belt. The efficiency and effectiveness of this drainage system is fundamental to all user requirements. The IDB has for years worked in partnership with environmental organisations in promoting environmental stewardship and nature conservation.

11.2 There is criticism in the draft bill that IDBs are unaccountable and are unable to respond to emergencies. Nothing can be further from the truth. IDB actions and accounts are open to public scrutiny. IDB staff and Board members have been at the forefront of emergency response in taking positive action to deal with flood related issues as they occur. In reality the IDBs are not included in the emergency planning responder arrangements. When the IDB has raised issues with emergency planners they have not been listened to.

11.3 Under the proposed Flood Bill Defra seeks to reduce the number of IDBs to make them more regionally orientated. It is also proposed to change the title of IDBs to something reflecting Water Level Management more in line with Defra priorities which are focussed on urban areas. The Environment Agency is to be given an even more remote higher-level strategic role. Local Authorities, who have generally shown a political unwillingness to deal with drainage issues, are to be given the lead role locally. The IDBs, who are entirely focussed on the issue of land drainage and flood defence, are to be subjugated beneath these two levels of authority. This is in line with Pitt Review recommendations, but will do little to support the essential functions presently undertaken by IDBs.

11.4 There is a real risk under these proposals that upland water contributions to IDBs will be scrapped. Special levy payments may be changed to give Local Authorities greater powers to control expenditure in accordance with strategic prioritisation relating to overall flood risk management geared to urban areas. Effectively these draft proposals have potential to strip IDBs of their powers, significantly reduce their funding, and to place them under the direct control of the LAs working under EA strategic direction. This is most likely to result in a worsening of the rural situation and degradation of rural watercourses the consequence of which has been explained in preceding paragraphs.

12 SUSTAINABILITY AND FOOD SECURITY

12.1 As an island nation there are three main pillars of sustainability to be achieved if we are to secure our future. These are water, food, and energy supply. Government has only very recently begun to address the issues of water and energy; the latter coupled to climate change. As far as I am aware there is no coherent policy on food security which is dependant on domestic agricultural productivity. This in turn is dependent to a large extent on the standard of rural land drainage.

12.2 Henry Cator, ADA Chairman, has pointed out that there are more people alive today than there are dead. A profound statement if ever there was one! This demonstrates how many more mouths there are to feed and hence the need for sound policy on food security. It is relatively easy to walk away from maintenance of rural flood defence and land drainage infrastructure but a decade of neglect could undo what has taken centuries to achieve. It could take an equally long time, not to mention considerable expense, to restore what has suffered neglect over the relatively short term.

13 CONCLUSION

13.1 Internal Drainage Boards have been reasonably successful at maintaining rural land drainage infrastructure whereas the Environment Agency has been diverted away from its essential core function as main river authority. All indicators are that the rural funding position will continue to get worse. The proposed ‘Flood and Water’ bill is leading towards a situation whereby IDB funding is also at potential risk of being further diminished by diverting money into perceived higher priority urban areas. It should be possible for Central Government to calculate reasonably accurately how much food and bio produce needs to be produced annually to support the present and future population. This could be matched to the rural landbase coupled to productive capacity also allowing for some international trading of produce. Policy could then be drafted according to need. This should be based on the ultimate worst case position to support the retention of the rural agricultural land base in a state of potentially productive condition. All of this is dependent on the standard of land drainage and quality of flood defence in low-lying areas.

14 RECOMMENDATIONS

14.1 Return to the basic principles of Flood Defence and Land Drainage. This is fundamental to all sectors of the community

14.2 Recognise that Land Drainage is the very foundation upon which the rural community in lowland areas is established.

14.3 Recognise that all lowland flood defence and land drainage systems must operate effectively in a coordinated manner and that adequate support must be given to the operating authorities responsible.

14.4 Recognise that in lowland areas flood damage and waterlogging affects property, agriculture and sites of nature conservation in equal measures if adequate water level control is not in place.

14.5 Recognise that the vast proportion of the interconnected land drainage system is situated in the rural green belt and that this serves all land and communities.

14.6 Recognise that the abandonment of estuary flood defences could have irretrievable widespread consequences which would take a long time and considerable expense to recover.

14.7 Accept that whereas agricultural land may be subject to flooding it is essential to have drainage channels and infrastructure kept in a fit state of maintenance to provide for efficient drain down of land immediately after any flood event.

14.8 The Environment Agency should recognise that in lowland areas main rivers were provided or modified for drainage purposes and should be maintained as such.

14.9 The Environment Agency in its capacity as River Authority should concentrate on the fundamental requirement of main river maintenance for achieving efficient flow and conveyance of water.

14.10 The Environment Agency should consider all possible provisions for responding to the potential impact of climate change taking account of the collective needs of both rural and urban areas.

14.11 Control of Critical Ordinary Watercourses (COWS) should revert to IDBs.

14.12 The ‘Outcome Measures’ prioritisation system should be modified to support previously established projects in rural areas.

14.13 The productive importance and value of agricultural land should be calculated by reference to the head of population. The importance of land drainage in achieving high agricultural efficiency should be recognised and ‘Outcome Measures’ priority criteria should take account of this requirement.

14.14 Government should seek to reduce the amount of EEC legislation much of which is contradictory and which inhibits core objectives. Money saved in meeting extraneous regulatory requirements could be expended on constructive works and maintenance.

14.15 Recognise that established IDB funding mechanisms are equitably based and should not be tampered with without further risk to the rural community.

14.16 The Environment Agency should be made directly accountable to the wider base of ratepayers and taxpayers rather than being an instrument of central government.

14.17 The overall level of funding for flood defence and land drainage should be increased.

14.18 The three main pillars of sustainability i.e. food, water and energy supply should be adopted as the platform for government policy and that food security should be seen as an issue central to this.

14.19 Recognise that today’s neglect is tomorrow’s disaster waiting to happen.

P Clark C Eng

Chartered Civil Engineer

Clerk to the Board

June 2009

MARKET WEIGHTON DRAINAGE BOARD

DRAFT FLOOD AND WATER MANAGEMENT BILL

RESPONSE TO CONSULTATION PAPER QUESTIONS

(PART I SECTIONS 1, 2 & 3)

Qu. no	Question	Outline Response
1–7	Questions 1 – 7 refer to style, presentation, background and consultation process, also including introductory remarks.	The Board understands the background to the draft Bill but is concerned that many of the proposals being made arise out of the review of one very recent flood event where no two flood occurrences are rarely alike. The Board would wish to indicate that the consequences of flooding are better catered for in areas where an IDB is in place. This may seem strange where by definition an IDB serves a district where there is a special drainage need and where the risk and consequences of flooding would otherwise be greater. The reason for such successful outcome is because within IDB districts managed drainage systems are in place to adequately drain land. It is these drainage systems which have capacity to deal with flood flows on the rare occasions when flooding does occur. Land drainage is however not a reaction to crisis it is an ongoing function which takes place 24/7 52 weeks a year serving the whole community in the lowland plain. In introducing such radical change as is embodied within the draft Bill there is risk of losing essential threads of legislation which have evolved through various enactments based on centuries of experience. There is also risk that structural policy changes contained within the draft Bill could lead to funding and staff resources being further deflected from achieving essential maintenance and improvement works on the ground. It is indeed a mammoth task to attempt to produce a single unified Act with such wide remit in what would appear to be a very compressed timescale. Time for reflection and detailed consideration would seem appropriate. In terms of consultation the Board is acutely aware that the Consultation Paper including the questions raised for comment does not directly relate to the actual draft Bill as presented. Furthermore questions relating to the future role of IDBs in many instances seem to involve a possible second phase of legislation. This severely limits the ability of consultees to make coherent comment on the accuracy and effectiveness of the proposed legislation. This is further compromised by the exceedingly short period for consultation on what is undoubtedly a major piece of legislative change. Nevertheless the Board has tried to offer constructive comment which it hopes will be taken into account in arranging the final Bill and in formulating any additional legislation. In providing a response to Defra in the short timescale available the Board has concentrated on answering the questions raised in Part 1 Sections 1, 2 and 3 of the consultation paper. The Board has also contributed to the response being submitted by the Association of Drainage Authorities on behalf of its membership organisations and although there may be differences on some points of detail the Board generally supports the ADA response. Given the short timescale available the Board has been unable to give detailed consideration to the legal and technical implications of the draft Bill itself and is reliant on the detailed response to this being submitted by the ADA
8.	Are you content with the definitions of ‘risk’ and ‘risk management’ in the draft Bill?	The Board is content with the definition of ‘risk’. The definition of ‘risk management’ should be more inclusive of risk minimisation techniques through pro-active management of river and land drainage systems as a whole. For example essential work on drainage channels could be included at Cl. 7(3) as follows: - 7(3)(a) planning, erecting, excavating, maintaining, improving, altering or removing buildings or other structures or watercourses. 7(3)(d) carrying out work in respect of a river or other watercourse including maintaining or improving any existing watercourse It is felt that some definitions should be widened and others included as follows: - Cl.2 List of Definitions: Also include definitions for: - Watercourse: any open channel, pipe or conduit used for the conveyance and flow of water. Environment: The overall surrounds influencing human, plant and animal life and sustainable development. Sustainable Development: Define the meaning. Cl.3 Flood: The definition of ‘Flood’ should be widened to include ‘waterlogging’. The reason for this is that saturation of land up to a depth of 1 metre below ground level will cause extensive crop damage if not effectively drained (MAFF 1979). This should be taken into account when considering protection and in calculating damages. Similarly waterlogging may have adverse effect on building foundations with potential to cause structural damage. Cl. 220 Drainage Systems: This definition should be widened to include any open channel, pipe or conduit and any naturally formed watercourse which has been modified in any way to facilitate the conveyance and flow of water.
9.	Are you content that the draft Bill should enable a wider range of approaches to managing flood and coastal erosion risk than is currently allowed under existing legislation, such as resilience, and that it should be sufficiently flexible to accommodate new approaches which may be developed in future?	YES providing that this is not at the expense of withdrawing from or reducing maintenance of existing FRM assets including watercourses and flood defence embankments. While it may be useful to enable a wider range of approaches it is equally important to ensure that all relevant authorities use their powers effectively. For example IDBs use their powers pro-actively by maintaining watercourses in a condition fit for purpose thereby minimising flood risk. Conversely Local Authorities which lack funding and staff resources take little positive action in maintaining existing systems. The Environment Agency meanwhile is actively withdrawing from maintenance of watercourses in rural areas where the vast length of main watercourses are situated serving all user requirements. This is most critical in IDDs which are by definition areas where there is special drainage need.
10.	Does the approach in the draft Bill to flood and coastal erosion risk management adequately cover adaptation?	YES.
11.	Does the proposed approach to flood and erosion risk management: · Facilitate and encourage authorities to make effective links between land management and flooding and erosion? · Enable and encourage authorities to play an appropriate role in the delivery of wider multiple objective projects through the use of their flood and erosion management functions, including projects that are specifically required to achieve environmental cultural and social outcomes?	· NO. The proposed approach does not establish effective links between flooding and the essential need for provision of effective drainage systems comprising all watercourses in the control, storage, conveyance and disposal of surplus water. This is a fundamental essential requirement. · NO. Linking back to the definition of ‘environment’ the wider objectives should first and foremost include ‘humans’ which in turn are dependent on plant and animal life and sustainable economic activity.
12.	Are there any approaches to flood and coastal erosion risk management that should be adopted but which the draft Bill would not allow?	YES. In addition to the points made under question 11 above given a revised focus on ‘human’ need operating authorities should be empowered to pro-actively engage in works for minimisation of flood risk purposes without being overly restricted by environmental constraints. Flood risk management should take priority.
13.	Should all operating authorities be required to contribute to sustainable development objectives when carrying out flood and coastal erosion risk management?	YES. Most do already but the meaning of ‘Sustainable Development’ should be defined at Clause 2 and further consulted upon.
14.	Are the component parts of the EA strategic overview clear and correct and do they achieve the objectives?	NO The fundamental objective should be the minimisation of flood risk through a policy of routinely maintaining the existing main river and ordinary watercourse systems in a condition fit for purpose.
15.	If not, what further changes should be made?	The full strategic overview role should also include – ‘Taking steps to understand the interaction between the various forms of drainage systems including the complex network of watercourses managed by relevant operating authorities’.
16.	Do you have any comments on the proposal that the EA issues a National Strategy for FCERM with which all operating authorities will be required to act consistently when delivering their FCERM functions?	If the Environment Agency establish National Strategy for others to comply with it is imperative that it takes into account the functional importance of the complex network of managed watercourses in providing necessary storage capacity and efficient channel flow in accommodating and disposing of surplus water during and after a flood event and the essential need for maintaining such watercourse in a state fit for purpose. Also recognising the value of well-drained land in creating in ground ‘sponge’ capacity to soak up surplus water at times of heavy rainfall. If such recognition is not embedded within national strategy existing land drainage and flood defence systems will fall into disrepair and flood risk will be significantly increased affecting all land uses. A source to outfall policy should prevail.
17.	Do you have any comments on the proposal that other bodies would have to have regard to the EA’s National Strategy and guidance? Do you consider that any other bodies should be added to the list in clause 23? In particular, how should the sewerage industry be brought into the new framework?	Following from question 16 above if the Environment Agency establish national strategy which all other relevant authorities have a duty to follow and this does not take adequate account of the function of existing drainage channel systems then other operating authorities in particular IDBs will be prevented from carrying out their normal drain maintenance activities. This will result in significant increase in flood risk and consequential damage affecting all land uses.
18.	Do you think that the EA should be required to consult as part of preparing or publishing its strategy?	YES. The EA should be required to consult at all levels in preparing national strategy.
19.	Should the EA have a regulatory role in relation to coastal erosion risk management, in particular for consenting and enforcement as set out in paragraphs 103 – 105? What alternative arrangements might be preferable?	No comment.
20.	Should the Secretary of State have the power to direct the EA to undertake local flood risk management work in default of local authorities, and recover reasonable costs?	This could reasonably be expected to work both ways. For example will the SoS have power to instruct the LAs and IDBs to act and recover costs where the EA is in default on main river?
21.	Should the EA be able to undertake coastal erosion risk management works concurrently with local authorities where appropriate to support the delivery of the strategic overview role?	No comment.
22.	The EA is drawing up a coastal map showing which operating authority will exercise FCERM powers on each length of coast. Should the EA maintain this and should the procedure for amending the map be the same as for main river maps, or should it be a non-statutory process?	No comment.
23.	Do you have any comments on the proposed changes to main river maps as set out above?	There are concerns regarding the capability of the Environment Agency in making sensible judgements in relation to the designation of main river. Experience has shown that when the EA has, under COWS regulations, taken over responsibility for watercourses previously maintained by the IDB that maintenance standards have fallen and flood risk has increased.
24.	The Government’s response to Sir Michael Pitt’s Review accepted that county and unitary local authorities should have the ‘local leadership’ role described above. Does the draft Bill implement this effectively and support the development of effective local flood management partnerships?	YES but there are concerns regarding lack of resources within LAs. Also, that administrative areas may not necessarily fit comfortably with hydraulic catchments. There is further concern that LAs are multi functional organisations unlike IDBs which are solely focussed on WLM and FRM. In this situation there is risk that funding will be diverted into other departmental areas. The Bill should reinforce the role of IDBs as practitioner delivery authorities if flood risk is to be minimised.
25.	Do you have any comments on the proposal that the county and unitary local authorities will develop a strategy for local flood risk management and that district local authorities and IDBs would be required to act in a manner which is consistent with that strategy in delivering their FCERM functions?	Refer to the points made at question 16 and 17 above. It will be contrary to overall intentions if the EA in preparing national strategy does not fully comprehend and recognise the function of IDBs and indeed the EA itself in carrying out essential maintenance of the network of main arterial drainage channels which in IDDs provide for storage and disposal of surplus water at time of flood. At present, by its actions (or lack of action), the EA has demonstrated that it does not have this level of comprehension built within its existing prioritisation systems. This will result in significantly increased flood risk if prioritisation systems are not adjusted to recognise criticality in rural areas.
26.	Do you have any comments on the proposal that other bodies would have to have regard to the local flood risk management strategy and guidance? Do you consider that any other bodies should be added to the list?	No comment.
27.	Do you think that the county and unitary local authorities should be required to consult the public as part of preparing or publishing their strategy?	YES – it is essential to consult.
28.	Further to its duty to investigate flooding incidents, should the county or unitary local authority have powers to carry out works of an emergency nature? If so, what powers would be needed?	YES – appropriate powers exist under the LDA 1991 and similar powers need to be provided.
29.	Do you think that the EA and county and unitary local authorities should be able to gather information from private landowners and individuals about flood drainage assets related to their respective responsibilities? What if any sanction is needed to ensure information is provided?	YES asset data should be collated but this will require appropriate funding and resources.
30.	Should county and unitary local authorities be legally required to produce annual reports on the way that they are managing local flood risk? Should this requirement be annual?	No comment.
31.	Should the EA provide support and advice to the local overview and scrutiny functions as part of the exercise of its strategic overview role?	No comment.
32.	Should a list of bodies required to cooperate with overview and scrutiny committees be extended to encompass all relevant authorities and as a result pick up IDBs and water companies?	It is important to include IDBs in all discussions.
33.	Should Regional Flood and Coastal Committees (or other body) be involved in peer-reviewing any annual reports produced by local authorities?	YES.
34.	Should district local authorities and IDBs continue to manage flood risk from ordinary watercourses, taking account of Local and National Strategies?	YES. DLAs and IDBs should continue to manage ordinary watercourses. If they are required to do so in accordance with national strategy then this strategy should recognise the functional importance of drainage systems under management particularly in rural areas all as explained under questions 15, 16, 17 and 25 above.
35.	Should county and unitary local authorities have powers, concurrent with district local authorities and IDBs, to manage flood risk from ordinary watercourses in their areas? Or should they remain able to act only in default?	Unitary authorities should by definition have powers where there is no District LA in place. Where there is an IDB the LA/Unitary authority should only be empowered to act by local agreement with the IDB.
36.	Should any sea flooding works that a local authority wants to undertake require the consent of the EA?	No comment.
37.	Should all relevant organisations have the power to undertake any flood and coastal erosion risk management at the request of another body?	YES. Relevant bodies should be empowered to take on works on behalf of another authority but only where the relevant authority is willing to undertake such works. It should not be mandatory.
38.	Should the functions of consenting, and the production and coordination of the strategy (for both EA and county and unitary local authorities) remain as ones which cannot be carried out by another authority?	Consenting should be carried out by the proactive relevant authority e.g. IDB in an IDD. Production and coordination of the strategy should be carried out by the competent authority to suit local catchment conditions.
39.	Are these assumptions reasonable? Is further evidence available to improve the analysis? Are the measures detailed proportionate with the scale of benefits assumed?	The assumptions for FRM impact assessment appear to be of little relevance to flood minimisation. It is more important to maintain and improve existing assets including all main watercourses.
40.	As agreed in the Government response to Sir Michael Pitt’s Review, there will be a duty on relevant organisations to cooperate and share information. Do you think the list of relevant authorities to whom this applies is comprehensive?	The list is comprehensive.
41.	Should the EA and county and unitary local authorities be able to specify the format and standards for information to be shared between organisations?	In setting format and standards for information to be shared account needs to be taken of the resources available within often small relevant delivery authorities for production of such data or additional funding will need to be provided.
42.	Do you agree that national design, construction and performance standards for sustainable drainage of new developments and re-developments should be developed and approved by the Secretary of State and Welsh Ministers?	YES.
43.	Are there particular issues which must be addressed in the standards to make them effective, that have not been mentioned?	Proper arrangements should be put in place for the adoption of SUDS.
44.	Are there examples where this form of approval, for the surface water drainage system associated with a new development, is not appropriate?	No comment.
45.	Does the process for adoption and connection described here provide a clear and workable approach for developers, local authorities and water and sewerage companies? Do you have any suggestions which would make the process simpler, speedier or lower cost?	No comment.
46.	Are there examples where a communal SUDS should not be adopted by the SAB?	No comment.
47.	Do you agree with how the envisaged arrangements for replacing the automatic right to connect will work?	No comment.
48.	Can the use of National Standards as a material consideration for the purposes of s115(4) of the Water Industry Act 1991 provide sufficient legal certainty to prevent inappropriate agreements to drain highways to sewer?	No comment.
49.	What is the appropriate balance to enable good SUDS designs that work with the lie of the land, can discharge to watercourse, and can be accessed for maintenance and inspection, whilst protecting the rights of landowners?	SUDS should be designed to accommodate the required storage capacity and to provide slow release run off into any local watercourse. SUDS must remain accessible for maintenance throughout their design life and should not be allowed to vegetate to the extent that they translocate into becoming protected environmental habitat whereby maintenance is then prevented and function compromised.
50.	How wide should the SABs’ ability to delegate be?	No comment.
51.	Are additional enforcement powers needed – in particular, should the SAB have an independent power to enforce the approved SUDS? How would this work?	No comment.
52.	Views are welcomed on how best to ensure the maintenance of private SUDS, and ensure that they are not redeveloped.	SUDS should be protected by legal status with a requirement to seek SAB approval prior to any change or development.
53.	Is there any legal impediment to prevent a SAB from adopting an existing SUDS?	No comment.
54.	Do you agree that performance management of SUDS maintenance should be included within the local government performance framework, as part of their climate change adaptation function?	No comment.
55.	Do you agree that Regional Flood Defence Committees should be renamed as Regional Flood and Coastal Committees?	NO. RFDCs should retain the existing title and remain as such.
56.	Should RFCC status be predominantly advisory rather than executive?	NO. RFDCs should remain as the executive and should not be reduced to an advisory capacity. RFDCs provide the only local democratic input in controlling the activities of the EA to reflect local flood risk management need.
57.	Should the focus and roles of RFCCs be as described in above? If not, do you have any other proposals?	RFDCs should continue to make decisions and challenge EA policy and actions to ensure local accountability and best local outcomes (see also comments under question 56 above).
58.	Do you agree that the membership of RFCCs should be appointed as outlined above in future? If not, do you have any other proposals?	Having indicated at question 55 that RFDCs should remain it is preferred that membership should reflect a wide range of interests all connected to or dependent on flood risk management outcomes within the region which they represent.
59.	Should RFCCs’ levy-consenting powers be extended to coastal erosion issues?	No comment.
60.	Are there any other issues that you wish to raise in regard to RFCCs?	RFDCs should have more (not less) powers to make decisions on local issues and strategies.
61.	Should flooding from sewerage systems caused solely by system failure be excluded from transposition of the Floods Directive? If not, how might such flooding be integrated?	No comment.
62.	Should the EA and county and unitary local authorities assume responsibility for implementing the Floods Directive, with the EA focussing on national mapping and planning and local authorities having specific responsibilities in relation to local flood risk? If not, what other arrangements would you suggest?	YES but should take account of local FRM needs.
63.	Should county and unitary local authorities be responsible for delivering PFRAs for local flood risk as described above? If not, who should be responsible?	YES.
64.	Is this framework a suitable approach for determining ‘significant risk’ or are there alternative approaches to consider?	YES but in determining significant risk to agricultural land it must be recognised that the definition of flooding should include waterlogging of land to a depth of up to 1 metre below ground where this can cause serious damage to crops if adequate drainage is not provided (MAFF 1979). Loss of agricultural production should be measured against a coherent national policy for food security matched to the essential critical need for an isolated island nation to be potentially self-sufficient at time of crisis.
65.	Should county and unitary local authorities be responsible for determining significant local flood risk (ordinary watercourses, surface water and groundwater)? If not, who should be responsible?	YES. LAs should be responsible for determining significant local flood risk working in agreement with their local area partners. If there is to be external involvement in the final selection of significant risk then in addition to the LGA, EA and independent experts the panel should also include the ADA.
66.	Should the proposed selection of ‘significant risk’ areas by local authorities be moderated along the lines of the arrangements set out above?	YES but taking account of the issues discussed under question 64 and 65 above.
67.	Do you agree with the proposed mapping arrangements set out above? If not, what alternative arrangements do you suggest?	No comment.
68.	Should the EA and local authorities have the discretion to determine whether or not to produce flood maps, a described above? If not, what other arrangements should apply?	YES.
69.	Should the arrangements for FRMPs be as set out above? If not, what alternative arrangements do you suggest?	No further comment. Many of the comments made under preceding questions above all relate to this issue.
70.	Do you agree with the co-ordination arrangements set out above? If not, what alternative arrangements do you suggest?	Agree.
71.	Should the first cycle PFRA be brought forward one year, as proposed above, to enable mapping to take up to two years in common with the rest of the mapping and planning cycle?	No comment.
72.	Do you agree with the other proposals set out above for reporting and review? If not, what alternative arrangements do you suggest?	No comment.
73.	Do you agree that the duty to act in accordance with WFD requirements should apply equally to all FCERM authorities?	NO. FCERM requirements should take precedence over WFD.
74.	Do you think this approach provides a satisfactory mechanism for ensuring that the relevant bodies deliver the requirements of the WFD?	NO. FCERM authorities can take into account WFD requirements but FCERM requirements should take precedence.
75.	Should we introduce a system of third party asset identification and designation, as set out above?	YES.
76.	Is there a case for greater powers on third party assets than we have suggested?	NO.
77.	Are there assets that are not ‘structures or natural/man-made features’ that should also be designated?	Ordinary watercourses including natural watercourses which have been modified for flow and conveyance purposes should all be identified as FRM assets.
78.	Should there be a duty on those responsible for third party assets in England and Wales to maintain them in a good condition?	If a third party asset is formally designated it is reasonable to expect that it should be maintained to a satisfactory standard. Notice to remedy could be applied but it may be appropriate to allow the owner right of appeal following designation seeking for the relevant flood defence authority to take over responsibility in any situation where it serves the common good.
79.	Should regulation of the ordinary watercourse network (where there are no IDBs) transfer to county and unitary authorities? Or should this role in future sit with the district and unitary authorities?	Regulation of the ordinary watercourse network (where there are no IDBs) should be a matter for determination by the local area partnership.
80.	Should it be possible to make consents subject to reasonable conditions?	YES.
81.	Views are sought on whether the minimum volume figure should be 5,000 or 10,000 cubic metres, or another figure?	It is accepted that minimum criteria must be set for reservoir regulation but this would be better assessed in relation to potential risk and consequences.
82.	Views are also sought as to whether criteria for inclusion and/or exemption can be based on other objective criteria such as embankment height, elevation, type of construction etc.	Following from comments in question 81 above it would be preferable to have reduced regulatory requirements where the risk and consequences of failure are less significant.
83.	Do you have a view on what information should be requested at the point of registration to enable an effective risk based approach thereafter? How can we design this and the collection process to minimise the burdens imposed by registration?	Following from question 82 above it would be necessary to obtain information confirming risk and consequence.
84.	Do you agree the proposed classification is appropriate and that the EA should have responsibility for classifying all reservoirs under the new regime?	Agreed.
85.	Do you believe there might be a role for insurance in improving reservoir safety and, if so, how might this work?	Possibly – worth considering.
86.	Do you have a view on whether and how the Government could most fairly keep to a minimum the financial burdens placed on the owners of those reservoirs which are being brought within the regulatory regime for the first time?	It is not unreasonable to expect all reservoirs above certain minimum proportions to register at absolute minimum cost for the purpose of maintaining a reservoir database. High-risk reservoirs involving inspection procedures could then attract a supplementary higher fee for monitoring and regulation purposes.
87.	Again, we welcome view on how to ensure charges within a scheme can be made proportionate.	As in question 86 above.
88.	No decision has yet been made about making use of the existing power to give Directions contained in the Reservoirs Act 1975 (as amended by the Water Act 2003). Views are invited on whether to proceed ahead of enactment of the proposals in the draft Bill. Points to bear in mind are: · The existing power to give a Direction would apply only to LRRs; and the costs of offsite planning would not be borne by the undertaker. · The power to give a Direction under the new Bill proposals could apply to all high risk reservoirs above the minimum volume criterion; and could provide for the reservoir manager to meet the costs of off-site planning should a specific emergency response plan be needed. Views are sought on whether the Bill should provide for this.	No comment.
89.	Do you consider that there is a direct conflict or inconsistency between the IDBs’ supervisory role and the local leadership role of the county and unitary local authorities?	NO. IDBs should retain supervisory powers within their own district. This will ensure a coordinated approach on a catchment basis. There should be no conflict with the local leadership role if the LA supervises all matters in areas where there is no IDB. This is similar to the present situation where the EA sits above IDBs but only intervenes within an IDD where the IDB defaults.
90.	If the IDBs’ supervisory role was repealed, what would IDBs no longer be able to do that they currently can?	If the IDB supervisory role was repealed the IDB would cease to be the focal point for dealing with local ratepayers concerns and for ensuring that the integrated system of ordinary watercourses within the IDD was functioning properly. Chaos would ensue.
91.	Should regulation of the entire ordinary watercourse network (including within IDB watercourses) transfer to county and unitary authorities in order to provide a consistent approach?	NO. Regulatory procedures should remain with the IDB for reasons explained in question 89 and question 90 above. IDBs and LAs should work in parallel and in partnership with each other.
92.	Do you think that IDBs should have specific powers to share services and form/participate in consortia?	YES. IDBs may find consortia arrangements useful to adopt on grounds of efficiency but this requires legal clarification.
93.	Do you think that IDBs should have specific powers to form/participate in limited companies/limited liability partnerships for the purposes of sharing services?	Depending on the outcome of question 92 above one way of dealing with consortia may be the formation of limited companies formed between Boards in a group. A key issue is the employment of staff i.e. to clarify which body is the employer. This impinges on health and safety, revenue and customs, and various other issues. Legal powers for FRM must remain with individual IDBs.
94.	What negative impacts might there be from providing IDBs with these specific powers?	There do not appear to be any significant impacts from powers of consortia etc but the subject requires specialist consideration by legal team.
95.	Do you agree the proposals outlined are the best way to simplify these procedures? If not, what alternative approaches should be considered?	If the Minister is intent on forcing amalgamations between IDBs then any simplification of the amalgamation process is to be welcomed.
96.	Do you agree that the title of IDBs should change in the future to reflect the wider approaches that IDBs will undertake now and in the future?	NO. The title of IDBs should not be changed. The term is well understood by local ratepayers and partnership organisations. IDBs already undertake a wide variety of functions including WLM and environmental conservation but the core function is land drainage. The land drainage function supports all other user requirements including FRM.
97.	Do you agree that ‘Local Flood Risk Management Board’ is an appropriate new title, or is there a better alternative?	NO. LFRMB is not considered to be an appropriate title for an IDB for the reasons stated at question 96 above. There is no better alternative to IDB. The title of IDB should remain.
98.	Do you agree that the principles of the Medway Letter should be relaxed allowing IDBs to expand their boundaries beyond their traditional areas?	YES. There could be some benefit in allowing relaxation of the Medway principle. Many drainage problems exist external to the IDD. Extension of boundary could provide for better reception of upland water. Extension to encompass the whole catchment area would sit comfortably with river basin principles. It would also provide additional funding if the upland catchment was subject to drainage rates. It has always been a bone of contention amongst lowland ratepayers who suffer the consequences of upland water shedding onto the lowland plain that upland occupiers are not rated. Given the lead role of LAs there may be possibilities for partnership arrangements. It may be appropriate for LAs to deal with some issues in developed areas where urban drainage is a problem. It would be appropriate for IDBs to deal with drainage issues in rural areas where they have the required expertise. There could be some expansion of IDB and LA function both within and without IDDs through partnership working if IDDs were extended to catchment boundary.
99.	Do you agree that there should be a specific requirement for IDBs to produce an impact assessment demonstrating the cost benefit implications of a boundary expansion?	NO. Any necessary impact assessment for boundary change should be produced by the upper tier LA which has the lead role. This should be determined by discussion with the IDB and should reflect local need and benefit.
100.	Do you agree that the future supervision of IDBs would fit better with county and unitary local authorities rather than the EA in the future?	NO. Present arrangements whereby the EA has overall supervision of IDBs is appropriate and should be retained. It is important that under the proposed three tier arrangement IDBs should retain their independence. The EAs powers of supervision should only be exercised if the IDB defaults.
101.	Do you think that county and unitary local authorities should take over the lead on amalgamation (etc) schemes from EA in the future under this supervisory role?	NO. Management arrangements of IDBs are a matter for local self-determination. The approvals process should remain with the RFDC to recommend to Defra using the support of the EA legal team.
102.	Do you agree that lifting the bare majority limit on local authority membership of IDBs will allow for fairer representation on boards in the future?	NO – not necessarily although there is a reasonable argument that membership of IDBs should be directly proportionate to drainage rate/special levy income levels given certain parameters (see question 103 next).
103.	Are there other models of membership that you think would be more appropriate?	There is a misconception amongst District Councils that members which they appoint to sit on the IDB are there to represent the direct interests of the Council. This is entirely wrong. Members appointed by the Council serve on the IDB to represent the interests of the wider rate paying community who contribute to the Boards income through the special levy mechanism and who have an interest in the Boards activities. All IDB Members whether elected or appointed are there to serve the Board (body corporate) not the body which appointed them. This would be helped if District Councils were required to appoint say half of their number from people who are not Councillors. Such alternative appointees could be selected from the wider public to represent business, household and conservation interests. This arrangement is already provided for under the LDA 1991 (Schedule Pt II.5(2)) but is not widely taken up. It would also ease the pressure on Councillors in servicing external committees.
104.	Do you agree that the Secretary of State should have powers to determine the size, shape and structure of IDBs in the future?	NO. The Minister should not have direct power to determine the size, shape and structure of IDBs. As discussed under question 101 above this is a matter for local determination making recommendations through the RFDC for the Minister to approve. It is for Defra to provide guidelines for IDBs to follow as is ongoing at present. IDBs should remain independent statutory bodies.
105.	What consultation would need to occur before individual changes in size, shape and structure of IDBs were to take place? What sort of powers would be most appropriate?	Consultation should take place locally with all interested parties and with ADA.
106. Pressures – Funding Indicators – Efficiency of Food Security	Views are sought on whether the assumptions are reasonable. Can further evidence be made available to improve the analysis? Are the measures proportionate with the scale of benefits assumed?	The Board takes exception at the remarks made at paragraph 366 of the consultation paper. Here it is stated that IDBs focus on farmers, land drainage and agricultural efficiency to the detriment of nature conservation and wider government policies. IDB accountability and accessibility is questioned as is their ability to respond to emergencies outside normal working hours. This is a gross distortion of the truth. The provision of land drainage services is fundamental to an IDB serving all user requirements not just agriculture. It is the IDB managed drainage system which provides for reception and handling of flood flows when they occur. The Boards accounts are properly audited and open to public scrutiny. The office is normally open Monday to Friday 8.30am to 5.00pm. Staff and Board Members have responded to emergencies on a 24/7 basis 52 weeks/year without remuneration or standby payments other than normal overtime paid to manual workers. This unobtrusive service often goes unnoticed but is generally appreciated by the local community being served. With regard to the diagram shown at page 4 of the Impact Assessment section it is suggested that the following boxes should be added: - Pressures – Funding Conditions – State of Main Rivers Indicators – Efficiency of Drainage Outcomes – Improved Drainage Food Security These are all essential issues in determining desired outcomes. The Impact Assessment for IDBs only considers IDB administrative arrangements. It should perhaps consider the benefits to the wider community gained from IDB activities specifically land drainage in terms of facilitating local infrastructure, habitation, and food security. It is in fact land drainage and flood defence provision which underpins all else in low-lying areas of special drainage need. The overall benefit for relatively low input is considerable if properly assessed without skewed bias towards any particular wider government objective.
107.		No question found.
108.	Do you agree that there is a case to retain powers for the EA to levy (a) general drainage charges, and for IDBs to retain similar powers to levy (b) agricultural drainage rates in England and Wales?	Agreed. In particular IDBs should retain power to levy agricultural drainage rates. It is vital that IDBs have the ability to raise funds locally in IDDs which are by definition areas where there is a special drainage need. This benefits users and occupiers of all land not solely agriculture. The level of funding could be increased by extension of IDD boundaries to cover whole catchments as discussed under question 98 above.
109.	Do you agree that EA’s current powers to levy special drainage charges should be repealed?	No comment.
110.	Do you agree that only county and unitary local authorities should be funded for local flood risk management to allow them to prioritise funding based on where benefits would be greatest?	NO. Special levy payments made to IDBs are historically based on the rateable value (factored down) of all non-agricultural (i.e. developed) land within the IDD. Drainage rates and special levy’s are the essential component parts of IDB funding which provides for an essential service within an area of special drainage need. It is vital that the IDB retains control of these funding elements if it is to meet its locally agreed delivery plans. If funding is distributed through the lead LA there is a real possibility that funding will become politicised and that money raised according to local parameters will be diverted into other departmental areas. This would considerably increase flood risk in IDDs. The IDB must retain power to set its own rates and special levy by reference to its own locally agreed budgeted delivery plan.
111.	Do you think that replacing the IDB special levy in England and Wales with agency or contractual arrangements between IDBs and the relevant local authorities would improve the delivery and prioritisation of local flood risk management?	NO. The IDB must retain its independence to raise its own funding essentially based on drainage rates and special levies and to carry out its own locally agreed delivery plans within the IDD (very much for the reasons stated at question 110 above). If under new proposals greater flexibility is provided for IDBs to provide services external to the IDD this could be achieved by local agreement with other authorities and at their expense.
112.	Are there other arrangements that would remove or reduce the problems associated with the special levy in England and Wales, including those referred to above?	There should not be any problems with special levy payments. Where there are it is mainly due to misconceptions within LAs who do not always appreciate that special levy is historically based on the rateable value of all non-agricultural (developed) land and is directly proportional to the set drainage rate. This is explained at question 110 above. The alternative would be for the IDB to issue drainage rates to every individual household, premise etc as once did happen and this would be both messy and inefficient. Local Authorities are however concerned that central government is constantly reducing the level of funding provided to LAs to cover special levy payments. This impacts significantly on other local community requirements.
113.	Is there a case to end both IDB highland water charges and EA’s precept on IDBs in England and Wales?	The principle of EA precept charged on IDBs and upland water contributions made to the IDB are well founded if not always transparent. The upland water contribution is voluntarily paid to IDBs on the approval of the RFDC. It is calculated according to the perceived impact of upland water draining into the lowland drainage district and having to be dealt with accordingly. The payment which is based on actual expenditure is reasonably transparent if not always understood. The upland water contribution should remain in place unless and until IDD boundaries are extended to cover the whole catchment area at which point drainage rates could be levied. Precept levied on the IDB by the EA is much less transparent. In theory it should reflect a reasonable contribution to EA expenses in managing and maintaining downstream main river through which all IDB water has to flow. In recent years the EA has tended to withdraw from maintenance of main river in rural areas which has become an issue of great concern to the IDB and its ratepayers. This has not, however, been reflected in any reduction in precept which has continued to increase. The principle is sound and should be retained but the IDB would wish to see a much better return on its money and a more detailed explanation of where funding is spent locally. If it is required to reduce EA administration perhaps the upland water contribution could be shown as a credit against the precept although transparency should remain paramount.
114.	If the Medway Letter were retained, would there still be a case to end the payments?	NO. If Medway principles are retained the upland water contribution should remain in place for reasons explained under question 113 above.
115.	What additional steps or measures could be taken to make sure developers in England and Wales contribute towards the pressures new developments place on future local and central government budgets?	There are two ways to look at this. If development results in increased run off into local drainage systems it is reasonable for drainage authorities to expect a contribution from developers for dealing with this and some IDBs do impose such charges. If through the planning process SUDS principles are applied whereby the resulting discharge to watercourse is effectively slowed there may be no justification for such a charge. Any new development will increase the value of the rating base and will over time contribute to the ongoing costs of the drainage authority. If as a consequence of ongoing development coupled with the impact of climate change it is seen that drainage and protection standards have to be improved there is arguably a case for drainage authorities to be allowed to issue a standard development levy on all development to support future capital expenditure.
116.	How can people be made aware of their riparian responsibilities when they first buy properties that include riparian land?	The excellent EA publication ‘Living on the Edge’ should be provided to all riparian owners possibly issued at point of sale. Riparian ownership should be included within legal search procedures.
117.	What else could be done to improve existing riparian owners’ awareness and understanding of their responsibilities?	There could also be some tightening up of conveyancing rules. It is very convenient for solicitors and conveyancing agents to draw their red boundary lines on either side of a watercourse giving the purchaser the impression that the watercourse does not fall within his property. Under the ‘General Boundaries’ rule this is not necessarily the case where ownership of the boundary feature is left undetermined at registration. This leads to lack of understanding and abrogation of responsibility resulting in general neglect of the watercourse. Similarly under the ‘hedge and ditch’ presumption a riparian owner must access his ditch which is situated on his neighbours side of the hedge. Some provision could be made within legislation for the riparian owner to have reasonable access over his neighbours land for ditch maintenance purposes. In the modern day this should provide for the use of machine excavators etc. A further possibility is that under the lead authority role there may be an opportunity for LAs to employ enforcement officers whose responsibility would be to ensure that riparian owners attend to their responsibilities. This would require an appropriate level of funding to be provided.
118.	What examples are there of strategies that have succeeded in increasing the engagement of riparian owners and improving their contribution to maintenance?	The only positive way forward is seen to be that where a problem exists all interested riparian owners need to be engaged in seeking remedy by discussion. This could be dealt with by enforcement officers as suggested at question 117 above. It may be noted that in IDDs there is generally found to be a good understanding of riparian responsibilities due in part to IDB pro-activeness in providing advice.
119.	How could the powers provided to drainage bodies by section 25 of the Land Drainage Act 1991 be improved?	The powers provided under Section 25 of the LDA 1991 have proved extremely useful in dealing with problems. Reliance can also be made on Sections 23 and 24 of the Act which cover the authorisation of erections including culverts, and for dealing with any non-authorised erections, all of which form part of IDB consents procedures. In practice these powers have worked very well and should be retained. Generally the issue of a notice to remedy usually results in compliance if dealt with sensitively. However, if court action does prove necessary it may be worth considering whether a non-legally qualified officer of the IDB could deal with such cases at court in similar manner to rate recovery proceedings dealt with at Section 54(2) of the Act.
120.	Do you agree with the suggestion that ENI be offered to applicants and respondents in all ALT land drainage cases?	YES. Early Neutral Intervention (ENI) should be offered to applicants and respondents in dispute cases.
121.	Do you agree with the introduction of a fee for all application to the Agricultural Land Tribunal that concern land drainage? This would not affect hearings for agricultural tenancies?	YES.
122.	If an application fee were introduced, at what level should it be set?	If ENI is to be attractive the service should be free or at minimal cost to encourage parties to participate in the mediation process.
123.	Do you agree that a fee should be charged for an ALT hearing on drainage? Should that fee be paid by the losing party or should this be decided by the ALT	It should be left to the ALT to apportion fees between parties at dispute hearings.
124.	If a hearing fee were introduced, at what level should it be set?	The proposed £1000 hearing fee is not unreasonable given that parties have the opportunity of using ENI (mediation) beforehand.
125.	What cases are you aware of where people might have made use of the ALT had its remit extended beyond ditches and included all ordinary watercourses?	No comment.
126.	Do you think that it would be a good idea to extend the remit of the ALT to include all ordinary watercourses? Do you think that it should also be extended to cover the main river network?	YES. This would provide opportunity to riparian owners and IDBs to take issue with the EA where that authority is neglectful of its responsibilities.
127.	In what other ways, if any, could the regulations and processes of the ALT be improved as regards cases involving drainage issues?	No comment.
128.	Do you think the ALT should be renamed? If so, what name do you suggest?	YES. A title of simply ‘Land Tribunal’ (LT) would cover all situations..
129.	Do you believe that failure to maintain the flow of water through watercourses should be described in law as a statutory nuisance?	It may be worth considering whether to classify failure to maintain flow in a watercourse as a statutory nuisance but legal guidance on the merit of this should be sought and definition of restriction to flow would need to be established.
130.	If a statutory nuisance were created concerning ‘obstructed watercourses’ should it be administered by the ALT, by district and unitary local authorities or by some other body/bodies?	Statutory nuisance could be dealt with by LAs and/or IDBs or by LAs on behalf of IDBs and at their request.
131.	Do you agree that a new statutory nuisance should be created to tackle the risk of run-off flooding?	There are serious reservations regarding this. It is perhaps more important to ensure that adequate drainage systems are in place to deal with flood water before and after the event and that these are adequately maintained.
132.	If a statutory nuisance were created for run-off risk, which public bodies should be responsible for its administration and enforcement – the ALT, unitary and district local authorities, or unitary and county local authorities?	It should be administered by the authority which has responsibility for surface water flooding.
133.	What is the range of costs involved in conducting expert investigations into potential surface run-off statutory nuisance?	No comment.
134.	What sized reductions in damages can be expected when run-off risks are eliminated?	No comment.
135.	Should the owners of properties that cause a surface run-off statutory nuisance have to pay the entire cost of eliminating the nuisance? What would happen if the owner was unable to afford the work? How else could the works be paid for?	This should be regulated by adequate planning controls and building regulations.
136.	Should local authorities be encouraged to make more use of their Article 4 powers to reduce the growth in surface run-off risk?	No comment.
137.	Please tell us of any recent occasions you are aware of in which run-off from farmland caused substantial disruption or damage to neighbouring property.	Not aware of any.
138.	Do you agree that local authorities should, in areas of high risk of run-off flooding, be given powers to impose restrictions on management practices and oblige landowners to make improvements to drainage in particular portions of land implicated in run-off flooding?	Possibly but such powers must be exercised only in specific situations and used sparingly. Within a drainage district the IDB must be consulted.
139.	If you do agree with the above proposition, what land management practices should be included in the national list of possible restrictions?	No comment.
140.	What would be the administration costs of working with a landowner to convince them to change the way they managed their land and support them with doing so?	No comment.
141.	Do you agree that any proposed changes to the existing legislation, not contained in the draft Bill or covered elsewhere in this consultation document, should be discussed directly with relevant organisations in England and Wales so the changes might be introduced in the resulting legislation, without the need for further general consultation?	YES. Further proposed changes to existing legislation should be dealt with by relevant organisations but where there are collective representative bodies these should be required to consult with their membership organisations.
142.	If so, are there any particular or general issues on which you would want to be involved in this way?	The Land Drainage Act 1991 has worked extremely well in practice and if this is to be repealed in favour of a single unifying act this should only be done after very detailed consideration of all issues and after taking expert opinion and full consultation with practitioners.

End of Part I (Sections 1, 2 and 3) Consultation Paper Questions

P Clark

Clerk to the Board

July 2009

Published: 12 Apr 07

Author: Market Weighton Drainage Board

Market Weighton Drainage Board

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