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Waverley Borough Council Committee System - Committee Document

Meeting of the Environment and Leisure Overview and Scrutiny Committee held on 26/11/2007
Land Drainage and Flood Defence - Policy and Programme Review



APPENDIX C
WAVERLEY BOROUGH COUNCIL

EXECUTIVE – 3RD FEBRUARY 2004


Title:

LAND DRAINAGE AND FLOOD DEFENCE – POLICY AND
PROGRAMME REVIEW
[Wards Affected: All]

Note pursuant to Section 100B(5) of the Local Government Act 1972

An annexe to this report contains exempt information by virtue of which the public is likely to be excluded during the item to which the report relates, as specified in Part I of Schedule 12A to the Local Government Act 1972, namely:-

Information relating to the financial or business affairs of any particular person (other than the authority) (Paragraph 7);

Any instructions to counsel and any opinion of counsel (whether or not in connection with any proceedings) and any advice received, information obtained or action to be taken in connection with:-

(a) any legal proceedings by or against the authority, or

(b) the determination of any matter affecting the authority,

(whether, in either case, proceedings have been commenced or are in contemplation) (Paragraph 12); and

Information which, if disclosed to the public, would reveal that the authority proposes:-

(a) to give under any enactment a notice under or by virtue of which requirements are imposed on a person; or

(b) to make an order or direction under any enactment,

as disclosure to the public might afford an opportunity to a person affected by the notice, order or direction or defeat the purpose or one of the purposes for which the notice, order or direction is to be given or made (Paragraph 13).

Summary and purpose:

The purpose of this report is:-

1. to respond to the findings of the Government’s Flood and Coastal Defence Funding Review and to consider the Council’s own Flood Defence Policy and Flood Defence Programme in the light of those findings; and

2. to respond to the resolution of the Executive at its meeting on 28th August 2001 regarding the flooding risk at St Christopher’s Road, Haslemere.


Quality of life implications – social, environmental & economic (sustainable development):

Natural Resource Use
Pollution Prevention and Control
Biodiversity and Nature
Local Environment
Social Inclusion
Safe, Healthy and Active Communities
Local Economy
Positive
Positive
Positive
Positive
Positive
Positive
Positive

Sensitive and appropriate management of flood risk preserves the bio-diversity of the water environment, reduces the overloading of sewers with surface water, contributes to safer conditions for residents at risk of flooding, and benefits the wider community and its economy, thereby enhancing the quality of life for our residents.

E-Government implications:

There are no implications.

Resource legal implications:

There are resource implications referred to in the report and annexes.

Legal Implications:

The transfer of responsibility for Critical Ordinary Watercourses will reduce the Council’s legal liabilities in some areas. There are significant legal implications in the decision-making on the Council’s Land Drainage Capital Programme which are described in the Annexes.


Introduction:

1. The Land Drainage Flood Defence function of the Council was included in the 2002/03 (year 3) tranche of Fundamental Service Reviews and that review was in progress when the Government announced the findings of its own Flood and Coastal Defence Funding Review in March of this year. Arising from the Government’s Review are major changes to flood defence funding nationally and to the institutional arrangements for the delivery of flood defence services which may have significant implications for the Council’s own policy and spending plans. This report considers those implications.

Background

2. Public responsibility for ensuring the effective drainage of land and providing flood defence measures, in England and Wales, is currently poorly defined. A number of public bodies, including this Council, are empowered by legislation to undertake this function but are not bound by statute to do so. Overall control of flood defence is retained by Central Government which, through its Department for Environment, Food and Rural Affairs (DEFRA), devolves operational powers to regional and local drainage bodies. The Government expects and encourages those bodies to “act responsibly” by using those powers to reduce the risk and effects of flooding in their areas. Waverley is one of those bodies.

3. The Environment Agency (EA) is charged by DEFRA with “exercising general supervision over all matters relating to flood defence” and is defined as the principal flood defence operating authority. It has statutory responsibility for flood warning but its powers to carry out maintenance works and improvement schemes currently only apply to designated main rivers, such as the arterial parts of the River Wey in Waverley. The “operating authority” for all other Ordinary Water Courses (which includes all ditches) in the Borough, is currently defined as the District Council. The County Council has some powers, to assist its duty to drain highways effectively, but these are more limited than those granted to District Councils. Currently, the principal body which has the power to construct flood defence works on any land, public or private, in the Borough, and to raise public finance to do so, is this Council. Most local flood defence, maintenance and improvement works are therefore undertaken by the District Council for the area.

4. Although civil law emphasises the right of individuals to protect their land from flooding, in practice, the steps which an individual owner can take are normally quite limited unless substantial areas of land, or lengths of watercourse, are in his/her control. Recognising that security against flooding hazards to life and property are public concerns, and that flood defence measures can most effectively and efficiently be provided when a collective, rather than an individual, approach is adopted, the case for public intervention is strong; e.g. where a deficient watercourse passes through a number of ownerships, the design, planning, construction and funding of a co-ordinated and effective flood defence scheme can best be delivered by a public body with the requisite statutory powers and resources to do so. Often there will be wider community benefits in the reduction of flooding to highways, footways, other public areas and property remote from the site of the improvement works. Often, riparian ownership cannot be established, and if the Council did not act to maintain or improve that length of watercourse, no other person or agency has the power to do so. Consequently the flooding risk would continue to grow.

Flood Defence Programme:

5. In recognising its responsibility as the one organisation with the statutory power to construct and maintain works on Ordinary Water Courses and the power to raise public funds to do so, the Council has, in common with most district authorities, maintained a continuing programme of capital expenditure on flood defence schemes, since its inception in 1974. An annual rolling programme has, from time to time, been supplemented by additional capital expenditure for larger schemes, such as the Cranleigh Flood Defence Scheme in 1986/87. Several million pounds, at current values, has been invested in reducing the major identified flooding risks across the Borough. The annual Rolling Programme of capital provision for flood defence is now 30,000 per annum. However, at the meeting of the Executive on 6th January 2004, it was agreed that the accumulated allocation for 2002/03 and 2003/04 be applied to assisting with the balancing of the Council’s general budget for the current year. The available capital provision for flood defence is, therefore, currently zero, but 20,000 has been allocated in the draft budget for 2004/05.

6. Schemes which progressively reduced the number of properties at risk of flooding continued to be constructed until 2002. At that point, the expenditure of this allocation on the highest priority scheme, in terms of flood risk, was questioned by the Chief Officer Group on the grounds that in the strictest legal sense the proposed works could be argued to be the responsibility of riparian owners. That scheme, and the implications for Waverley of participating in it, are set out in Annexe 2 of this report. The Chief Officer Group therefore resolved to give Members the opportunity to review and redefine the Council’s policy on flood defence expenditure. That decision has become more pertinent following the Government announcement in March 2003, of major changes to flood defence funding and institutional responsibilities, which are described below.

Government Flood Defence Funding Review:

7. The Government announced a review of flood defence funding mechanisms, in July 2000, following a series of nationwide flooding emergencies which identified the need for more funds for flood defence activities and more certainty over their delivery. The review, therefore, also considered whether the current institutional arrangements could be revised to ensure more efficient, effective and workable arrangements involving all of the agencies with powers and/or responsibilities in flood defence.

8. On 12th March 2003, the DEFRA Minister with responsibility for Flood and Coastal Defence announced the results of that review. One of its key findings was that the EA would become responsible for those watercourses, which are not currently designated as main river, but which present the greatest risk of flooding to people and property. These watercourses are defined as “Critical Ordinary Watercourses (COWs)”, a number of which are included in those on which Waverley has carried out improvement works and currently carries out maintenance works.

9. On 9th July 2003, the EA issued a consultation to each District Council, on the implications of the transfer of jurisdiction for COWs from the Council, as the local operating authority, to the EA. The consultation and the Council’s recommended response is described at Annexe 1 to this report. The transfer of responsibility has implications for the Council’s own Land Drainage and Flood Defence Review and for the determination of the Council’s response to the St Christopher’s Road, Haslemere capital works proposal described in Annexe 2.

Waverley Land Drainage and Flood Defence Policy Review

10. The need for a fundamental review of the Council’s flood defence policy was established following;

widespread flooding across the Borough in the autumn of 2000, which stretched our resources to the limit;

serious flooding events in the previous two years and an event in July 2001, which is described in Annexe 2;

pressure from the EA and DEFRA to respond to the Government’s High Level Targets for flood operating authorities which seek “to ensure a more certain delivery by operating authorities of the Government’s policy aims and objectives in flood defence”, which required a greater role for local authorities in flood defence activity; and


the reluctance of the Chief Officer Group to make recommendations on the expenditure of the Land Drainage Capital Programme allocation for 2002/03 and 2003/04, in compliance with the policy which has been exercised by the Council since 1974, without a fundamental review of that policy.

Transfer of Responsibility for Critical Ordinary Watercourses

11. The detailed arrangements for the enmainment (designation as main river and therefore responsibility of the EA) of COWs in its area and the future ownership and liability for structures constructed thereon by Waverley, are currently under review by the EA. It is likely that Waverley may be relieved of certain risks and liabilities which its current management of those watercourses attract. Local authorities will continue to have a significant role in flood defence but the level and type of activities which they provide will be influenced by the transfer of responsibility for COWs and on their decisions to be involved, or not, in contracting back the day-to-day maintenance activities thereon. In the light of the changes in responsibility emerging from the Government’s Spending Review it would be premature for the Council to bring its own Land Drainage Fundamental Service Review to a conclusion at this time. It is therefore proposed that the Council’s review be extended to 2004/05 to take into account the timing of the expected enactment for enmainment. It is proposed, however, that the Council determines its position, in the interim, in relation to those flood defence issues which are awaiting a resolution as set out in Annexe 1 and Annexe 2 of this report.

Resource Implications:

Staff

12. The total manpower allocation for the Land Drainage function is 1.7 full time equivalent inclusive of managerial and administrative support. Practising engineers equate to 1.2 f.t.e. The Engineering Service, which includes the Land Drainage function, is delivered by a total resource of 2 engineers. There is always more demand for engineering services from within the Council than can be met with this resource level. This is also the minimum staffing required to manage day-to-day drainage issues and liaison with the EA on planning applications, and other matters, as set out in Annexe 1. The transfer of responsibility on COWs may reduce some of the out-of-hours demands on staff (for which no financial provision is made as staff are neither paid nor receive time off in lieu for this duty) but it is not expected to significantly reduce the workload of general flood defence management.

13. A core staff level must be maintained to respond to flooding emergencies. Following a succession of years of unusually high rainfall levels, one exceptionally wet period in the autumn of 2000 resulted in over 400 calls for assistance in one 10-day period. Over 100 properties across the Borough suffered internal flooding. At these times, the Land Drainage staff need to be supplemented by staff whose core duties lie elsewhere and functions, such as car park management (the income from which is vital to the Council) must be subordinated to the flooding emergency response.

Labour

14. The regular maintenance of critical flood risk sites and provision of the emergency response service is contracted out to the incumbent contractor for the Environmental Cleaning Contract. Occasional maintenance of watercourses is procured through other term contract arrangements. The Government, EA, other agencies and the public will expect the Council to still maintain an emergency flooding response, but routine maintenance on some sites will become the responsibility of the EA. It is estimated that savings of between 3,000 and 5,000 per annum might result, in an average year. However, this expenditure is directly related to variations in weather patterns which are, by their nature, unpredictable. The extreme conditions of autumn 2000, for instance, resulted in costs of double the normal annual expenditure of 35,000, some of which was reimbursed by Government as a result of the exceptional circumstances.

Conclusion

15. There are significant changes, in flood defence funding and responsibilities, which will result from the Government’s funding review. The particular watercourses in the Borough and structures thereon, which may become the responsibility of the Environment Agency, are under consideration by the EA. The Council will continue to have a leading role in flood defence, as detailed in Annexe 1, but its extent and nature may not be determined until the EA has completed its enmainment programme. It would be premature for the Council to conclude its Fundamental Service Review on its Land Drainage function until the Council’s role in flood defence has been redefined following publication of the detailed proposals of the Government and the EA.

16. The enmainment programme will result in a reduction of the risks and liabilities of the Council for some watercourses, and structures thereon, which it currently manages and maintains. The resources which the Council applies to the management and maintenance of Critical Ordinary Watercourses is minimal and the operational work is contracted out. The out-of-hours response to Critical Watercourse failures is provided by the goodwill and availability of a very few volunteer engineering staff members. It is concluded, that the EA would be better resourced to maintain COWS and provide an emergency response to their failures, and that therefore the Council should offer no objection to the enmainment of any watercourse in the Borough. It is further concluded that there would be no benefit to Waverley, or the community at risk of flooding, in contracting back the day-to-day operational activity.

17. The Council is aware of a flooding risk at St Christopher’s Road, Haslemere, the resolution of which is currently within its power, and is consistent with the policy which it has operated in flood defence throughout its 30 year existence. The risk relates to a watercourse which has been proposed by the Council for enmainment under the Government’s proposals for an improved flood defence service. In the event that it is accepted as a Critical Ordinary Watercourse, the responsibility for addressing its flooding risk will rest with the Environment Agency, from the date that the enmainment process is completed, which is estimated to be the 31st March 2006. The EA will, however, have national and regional flood defence scheme priorities and may not be in a position to address risks at this site or elsewhere in the Borough in the foreseeable future. The Council must therefore determine the most responsible reaction to this flooding risk given the circumstances detailed in the report and in consideration of its spending priority. The owners’ response to the Council’s proposal that they might fund the necessary flood relief scheme, in whole or part, is set out at Exempt Annexe 3. The determination of this matter must have regard to both the current budget position outlined in this report and to the expected ongoing revenue difficulties for the Authority in the future.


Recommendation

It is recommended that:-

1. the completion of the Council’s Fundamental Service Review of its Land Drainage/Flood Defence function be postponed until the detailed outcome of the Government’s Flood and Coastal Defence Funding Review is established;

2. no objection be made to the enmainment by the Environment Agency of any Critical Ordinary Watercourse in Waverley Borough;

3. the Environment Agency be informed that the Council does not wish to contract back the day-to-day management of the enmained watercourses;

4. the Council’s current policy of managing flood risk in the Borough by constructing and funding flood relief works, on land which it neither owns or on which it has previously carried out such works, be ended; and

5. the Council does not undertake, or fund, the works necessary to reduce the flooding risk at St Christopher’s Road, Haslemere, by replacement of the deficient culvert.


Background Papers (DoE&L)

1. The Flood and Coastal Defence Funding Review published by the Department for Environment Food and Rural Affairs.

2. Waverley Borough Council – Policy Statement of Flood Defence (April 2001).

3. Waverley Borough Council Performance Plan 2003/04: Environment.


CONTACT OFFICERS:

Name: Robin Ellks Telephone: 01483 523411
E-mail: Rellks@waverley.gov.uk

Name: Peter Maudsley Telephone: 523398
E-mail: pmaudsley@waverley.gov.uk

comms/executive/2003-2004/436 35180