Infrastructure Planning (Water Resources) (England) Order 2018

Lord Campbell-Savours Excerpts

Wednesday 21st November 2018 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, the purpose of the order is to amend the Planning Act 2008. The Act sets out a streamlined national planning process for infrastructure projects which are “nationally significant”. If a project meets certain thresholds set out in the Act, it will be considered under it, with the Secretary of State as the decision-maker.

This order will change the thresholds under which reservoirs, dams and water transfers will qualify as “nationally significant”.

[Lord Campbell-Savours (Lab)]

Can the Minister explain what the driver is behind this order? Who is pushing for it?

[Lord Gardiner of Kimble]

My Lords, the Government are pushing for it on behalf of the nation in so far as we undertook consultation. With climate change and population growth, we need to prepare. We wish to place a greater emphasis on the environment and therefore to deal with overabstractions. We need to find ways of having sufficient water, given the projections of an increase in population. This is about planning. We do not expect the projects to which this measure will apply to take place in the next five years; this is about forward planning. We think that these changes will probably embrace about six projects in England. The noble Lord asked who is driving this. We need to take a public responsibility to ensure that there is sufficient water for the nation. Yes, we should cut consumption where we can, but, because of population growth and climate change, we are bringing forward this measure now as part of our forward planning. It will involve public engagement, but that is the background to it.

On conclusions and criteria, we needed to make sure that we consulted, so we consulted on our initial proposals last November and then held a more detailed consultation in April. There was broad support for our approach from a range of stakeholders who responded, including water companies, environmental groups and other interested groups.

In reaching a conclusion on the new thresholds, we considered a number of factors, including the physical size of the infrastructure in question, the size of population that could be served by its output and the major infrastructure the Government anticipate will be needed in future. This is likely to require developers to engage with a number of planning authorities and other regulatory regimes. We also wished to move to a level playing field so that different water resource schemes are all required to meet thresholds that are as consistent as possible to qualify for consideration under the Act. This should help avoid developers favouring one scheme over another just because they prefer one planning route over another.

In making these amendments, we are introducing a consistent metric to measure the output of each infrastructure type. This metric is known as deployable output and is commonly used by the water industry for water resource planning. Deployable output is an annual average measure of the number of litres of water a particular piece of infrastructure can be expected to produce in a day under drought conditions. We concluded that a project expected to have a deployable output of 80 million litres per day—a level that could serve a population of around half a million people—is a nationally significant infrastructure project.

As explained, the order will amend qualifying thresholds for two existing infrastructure types mentioned in the Act and introduce a third—desalination plants. In the case of water transfers, this order would reduce the size of the threshold that projects would need to meet to qualify as nationally significant in line with the number of people served—that is, 80 million litres per day.

There will now be two ways for reservoirs to qualify for the streamlined planning process under the Act. The order would introduce a deployable output measure, consistent with transfers. However, we have chosen to retain a measure based on physical volume, recognising that the size of reservoirs matters. This is not just because of the impact they can have on neighbouring communities, but because a large reservoir takes a long time to drain down. Thus, with a relatively low deployable output, it can be an important part of overall water resource resilience. We have increased the volume for reservoirs to qualify under the Act from 10 million cubic metres to 30 million cubic metres.

We have also introduced desalination plants as a new infrastructure type. Consistent with the other infrastructure types, if the deployable output of a given desalination plant is expected to exceed 80 million litres per day, the project can be considered under the Act.

While the national level is the right one for decisions on nationally significant infrastructure, it is vital that those communities directly affected have their say and are heard in the decision-making process. The Act and regulations made under it set out the consultation requirements for development consent order applications. I can assure your Lordships that extensive pre-application consultation and engagement with those affected by the proposals will need to be undertaken by applicants. Furthermore, members of the public can participate in the examination process by registering their interest, thus ensuring that local views can be heard.

The main benefit to the developer of projects meeting the criteria in the Act is that they will face a less complex, consenting process with quicker decision-making. A number of consent requirements, such as planning permission, listed buildings consent and scheduled ancient monument consent, are replaced by a single consent, issued by the Secretary of State, following advice provided by the Planning Inspectorate.

It is the Government’s intention to designate a national policy statement for water resources infrastructure under the Planning Act. This policy statement will summarise government policy—

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[Lord Gardiner of Kimble]

My Lords, it is the Government’s intention to designate a national policy statement for water resources infrastructure under the Planning Act. This policy statement will summarise government policy on water resource infrastructure, including setting out the need for nationally significant infrastructure. It will make clear what the Government expect a planning inspector to take into account when examining an application. We plan to lay a draft of this in Parliament by the end of the year. I look forward to engaging with your Lordships on this in more detail next year.

The amendments in this order are part of how we make sure we have enough water now, and in the future. Population growth, climate change and making sure we leave enough water in the environment will become more challenging in the future. We expect proposals for nationally significant infrastructure to originate from statutory water resource management plans, as these are where options to reduce demand and increase supply have been assessed. We know that some new infrastructure will be needed to meet water demand in the future. Our assessment of the current draft water resource management plans is that around half a dozen proposed projects, needing to start in the next decade or so, are likely to qualify as nationally significant under the Act as amended by the proposed order. For all the reasons that I have outlined and because of the Government’s strong view that we need to plan for the future, I beg to move.

[Lord Campbell-Savours]

My Lords, we all want water but we also want safeguards. Much of my contribution is going to be about safeguards. When I saw this order—which was only this afternoon—I had to do some pretty speedy homework and make a few phone calls. I also looked up on the internet the definition of NSIPs, and they are described as,

“major infrastructure project developments in England and Wales that bypass normal local planning requirements”.

Whenever I see those sorts of words, I think immediately: what are the safeguards? There are no safeguards that I can see defined in the order before us.

I want to draw attention to a particular example of where things could go wrong when there are no safeguards. I will tell the story of what happened over the Thirlmere reservoir in the Lake District. I am presuming that United Utilities and other water companies are among those to which the Minister referred when he spoke about the consultation that took place. I am sure that they would have a primary interest in ensuring that this order goes through, because I would imagine that in certain circumstances they will certainly be the beneficiary of it and use it.

Thirlmere is in my former constituency in Cumbria, which I represented for some 21 years. For many of those years, it was a major problem because of the way the legislation had originally been framed in terms of protecting the interests of consumers and residents in the area. The primary use of Thirlmere, as it was described in a letter from one of the senior managers in the Environment Agency, is,

“as a water resource reservoir for United Utilities. In addition, United Utilities has voluntarily drawn down the reservoir to enable some flood storage during winter months. However, as the low reservoir levels during the 2018 dry weather period show, there needs to be a careful balance between Thirlmere’s primary use as a water supply and its use for flood storage”.

That is what I am on about—the balance. There is nothing in these regulations that even refers to the need for safeguards as part of the discussion around the balance between the availability of water and flood risk in local communities.

I want to now refer to some incidents that took place and the response of the local communities. In January 2005, November 2009 and December 2015, Keswick, a town where I have lived for most of my life, was flooded. On the last occasion, 515 properties were flooded during Storm Desmond. As the formidable Lynne Jones, secretary of the Keswick Flood Action Group, said in correspondence to United Utilities:

“I make no apology for continuing to contact you. I know that UU will never really manage the reservoir with a view to our safety without legislation to enforce them to do so”.


That is precisely why I am speaking on this order, because it is not in here. In the end, the solution is in your hands; you who are far away and who cannot understand the fear that so many in our community live with.

There are 2,630 residential properties in Keswick, and 515 properties flooded during Storm Desmond in 2015. Let me explain to the Committee what that means. Keswick is a town in two parts: there is the lower part and the higher part. In the main, the higher part does not flood, although certain parts of it do. But the lower part floods extensively. In the lower part of the town, there has been a dramatic drop in property prices. I do not live there, but the people who do worry constantly about the fact that they cannot sell their properties and have difficulty insuring them. Throughout the winter months, they are haunted by the prospect of being flooded. The river Greta, which runs through the town, has built-in flood defences, which broke down on one occasion. The truth is that the town is living in fear because of inadequate safeguards.

Today, legislation is going through that will make it easier for water companies to pursue the development of reservoirs without the safeguards that the people in Keswick demand for Thirlmere. It is a very clear idea. I imagine that they are the people driving this on because they know that they will be able to bypass much of the planning arrangements that currently exist.

I want to refer to what people think should happen in the future to resolve these problems. Within these regulations, there should be reference to measures to ensure that communities are safeguarded. Lynne Jones has been in contact with me today, and I will refer in this debate to what she said. She said it is obvious that the reservoir should be managed for flood alleviation alongside water supply. However, legislation is needed to make this a reality, and the present Floods Minister refuses to consider this possibility. So we are going to have more reservoirs, without safeguards, and the potential of future flooding. She went on to say—

[Lord Gardiner of Kimble]

I wonder whether I might help the noble Lord. I can see the line of approach he is developing and would be the first to say that all Governments need to address flooding concerns.

Important to the context of this work is that it is all predicated on the Reservoirs Act 1975, which sets out extensively the safety requirements of large reservoirs and contains a number of provisions, which I am happy to outline.

This piece of work is from the Planning Act 2008. There is already legislation on the matters that the noble Lord is raising. I apologise for intervening but I just wanted to say that this is not in isolation; there is other legislation which deals with safety. The noble Lord may well question the 1975 Act but there is legislation, passed by Parliament, which deals with the safety of reservoirs. I hope that is helpful to not only the noble Lord—I am sure he knows about this legislation anyway—but other noble Lords.

[Lord Campbell-Savours]

My case is very simple: the legislation does not work. That is why half of Keswick lives in fear every winter. If you go to Keswick today and take a poll on the street and ask people what their major concern is, it is that their houses are going to be flooded. In the last flood in that small town, 515 properties were flooded. Many of them had to be evacuated. So when we talk about legislation being there to protect these communities, I am sorry, it is just not working. We need legislation that works. This order offered us an opportunity to deal with these matters. It could have referred to other regulations which could be introduced to deal with those safeguards but there is no reference at all to them. So I will carry on.

The second point Lynne Jones makes is on scheme funding. She says:

“The way that the EA look at the financial viability of a scheme does not lend itself to a full catchment approach. Funding is limited to the cost of damage to the individual towns and each is considered in isolation. If funding looked at the damage to farms/infrastructure/footpaths etc. from the high fells to the coast then perhaps Cumbria/our catchment/Keswick would have a better chance of getting viable schemes. The EA has trumpeted a full catchment approach loud and long since the 2015 floods but the only actions are, frankly, an excuse to have various NGOs have their snouts in the trough and get money to plant trees/reconnect the river to the flood plain/re-wilding and other tinkering schemes which keep them in jobs and have no real impact on the kinds of flows which threaten homes”.


This is what people in Keswick believe, yet we are putting through an order which makes it easier for these water companies to build without safeguards.

Lynne Jones goes on to say:

“We need to tackle the series of intense and prolonged winter storms that we experience. Doing easy/cheap/relatively ineffective things and expecting us to cheer is not really helpful. I firmly believe that 6.4 of the Habitats Directive is not applied in the spirit for which it was created … Flood risk needs priority over environment. Brexit is an opportunity to improve legislation for community protection from flooding”.


She then says:

“The government’s funding formula is unfair. The Derwent catchment has no money for any major works which could reduce flood risk. The funding formula does not take into account much of the costs which a community like ours faces: damage to bridges, pathways, parks, sports facilities, tourism and business in the area; nor does it take into account depth of flooding, repeat flooding and the detrimental effects it can have on the health and well-being of the community”.


I return to my case: there is nothing about safeguards in this order. We drive such orders through, give these big companies the right to build more of these reservoirs and the regulations are not in place to safeguard communities.

Finally, the letter talks about resilience:

“Government has to stop praising our resilience. We have no choice. Resilience is used as an option instead of addressing the real risks. I doubt the Dutch would accept resilience as an option”—


I am sure they would not. She continues:

“Resilience leaves people open to cowboy builders, inflated prices, product companies that don’t last long enough to honour their guarantees. People are encouraged to buy flood gates when the water seeps in through the brickwork/up from the floor and the only dry section is the flood gate itself. Resilience is useless if flood water is over a metre deep as water then has to enter homes to prevent structural damage. Unscrupulous firms will sell products anyway”.


My point is very simple and I will repeat for a fourth time: this order gives big companies the right to build new water facilities—which the Minister has talked about and we all welcome—but the safeguards are not there. People are going to suffer. There will be more flooding in the future, probably as a result of these developments, because the legislative background that the Minister referred to does not work. People in the north of England, particularly in Keswick, desperately want legislation to deal with a problem that in many cases is ruining their lives, in some cases is ruining their livelihood and in many cases is ruining their health. I appeal to the Government to listen to these people and stop fobbing them off with silly little schemes.

[Baroness Byford (Con)]

I follow the noble Lord, Lord Campbell-Savours, and sympathise with the situation in which people find themselves in Keswick. The Minister has already referred the noble Lord to the previous Act and said that there are restrictions in it. If they are not being observed or things are not being done, that is a slightly different issue from what is before us today. However, I well understand the vehemence with which he has—“used” is the wrong expression—taken the opportunity to raise the whole issue of having a development in not the right area and not protected in the same way. I suspect that other Members of the Committee will come back on the issue of flooding.

I support and welcome the measure before us. The question asked earlier by the noble Lord, Lord Campbell-Savours, was: “Who is driving it and why are we having it?”. From my very amateur point of view, it is looking to the future. There are going to be more people and we are going to need more water, so the ability to have four or six newer, larger innovations that will enable us to use water in a better and more sustainable way has to be the right approach. Still, I say to the noble Lord that it is not that I do not sympathise; it has been a terrible experience for people who have been troubled by flooding.

I welcome this statutory instrument. We need to plan for the long term. We cannot suddenly find ourselves short of water with nothing to fall back on. As someone who comes from the farming community, I am only too aware of the many demands there are for growing more food. The one crucial thing that we need is water. For those who live on the west side of the country, water is not an issue—it is there all the while—but for those of us who farm on the eastern side it is a huge problem. So being able to enlarge a reservoir or have desalination as a backstop has to be a welcome new initiative.

The Minister mentioned climate change. I agree with him, whatever the way in which it is changing. I think this last year will have reinforced the fact of climate change for all of us: it was a very cold winter, then we had a lot of rain and then in East Anglia we had three months of no rain at all. So we need the ability to be able to drain off water in order to supply crops. Those in rural areas who were not able to do so lost crops and could not get them off the fields because there was no water to enable it to happen. So we face big challenges.

I gather we have more consultation coming in a draft towards the end of the year. Perhaps when that draft comes through, it could include some of the concerns that the noble Lord, Lord Campbell-Savours, has indicated today. We need to ensure that where new reservoirs or desalination plants are being built, they are in a suitable place and not likely to reproduce the experience that they have had up in Keswick. There have been various consultations, and as far as I understand it they have on the whole been supportive.

I have one query for the Minister about the Explanatory Memorandum. There was one part of that I picked up on and did not quite understand because it struck me as slightly odd. I refer the Committee to paragraph 6.4:

“The development also cannot relate to the transfer of drinking water”.


I thought: why not? I am sure the Minister will be able to tell me why, but it seemed odd that we are dealing with different things. However, I suspect from listening to the earlier debate with the noble Lord, Lord Campbell-Savours, that it will go back to a previous Act, where something will be written in to define what it is. Again, I think it should be slightly clearer in the memorandum because I do not understand why.

I am happy to support the statutory instrument, but I should like the Minister to bear in mind some of the comments that have already been made on the question of where such developments are positioned. This is a key issue. In some areas, I am sure that people will accept that they need to be there. They may be rural areas—I do not know quite how they would be defined, but in future years we will need to balance flood protection with water conservation and using water to the best of our ability.

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[Lord Gardiner of Kimble]

My Lords, I point out at the outset that although I am not as aware as the noble Lord, Lord Campbell-Savours, is about the flooding in his part of the world, as a Defra Minister, and beforehand, I absolutely understand and have seen the devastation and horror of flooding—indeed, the fatalities there have been—across the country. I am thinking particularly of the flooding experienced in one sense on the west side of the country, while on the eastern side there has so often been coastal flooding where the most terrible events have also happened.

I want to take away all that the noble Lord has said, and would be very happy to hear from any of the people who may have contacted him. I am not the Minister who has direct responsibility for flooding but in this House I take responsibility for all Defra matters, and I want to hear much more about the situation of residents there. I have friends in Cumbria who have suffered from the flooding, and I know that communities have been in a very difficult situation for many years. Perhaps I may spend some time outside of this discussion understanding more about the particular points that the noble Lord raised about Thirlmere and the issue of safeguards.

I know it was probably incorrect of me to intervene as I did, but I wanted to ensure that what we are trying to do here, through the Planning Act 2008, was on the record early on. I would of course want to hear in more detail whether there are issues with safety in reservoirs and the 1975 legislation, or issues arising therefrom, that we need to consider. This provision comes from the Planning Act 2008, and I suggest that it enables us to deal with the small number of what we believe to be nationally significant infrastructure projects for water. This is the route that that Act envisaged. We are seeking to add some detail to it and, as I say, include desalination plants.

[Lord Campbell-Savours]

I am sorry to intervene. I want to ask one question. A part of the town now lives in fear of flooding, as I said, and in a large part of the town there has been a major drop in the property values of people’s homes. I presume that there must be people now who are in difficulty over their mortgages. Because of the lack of legislation at the moment, with no way of controlling the operations of United Utilities, is it not possible for some national fund to be set up to help people who are in difficulty over the sale of their properties? I heard about a house last week that was on the market at nearly £600,000 and is being sold for £350,000. These are huge losses, which do not derive from the actions of the people that own them but directly from the absence of legislation that governs flooding. As I say, the danger in this order is that there will be more in the future.

[Lord Gardiner of Kimble]

I am grateful to the noble Lord. Clearly, I am not in a position to talk about resources, as he will understand very well. But obviously, in a different sense, this is why the Government brought forward Flood Re—there was a lot of consideration in the insurance world vis-à-vis it—to seek to address some of the difficulties that householders had. In fact, the noble Lord and I have had conversations about this and some of the distinct elements of where it has been successful. However, I understand generally that Flood Re has been a considerable success for householders with this problem.