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Waverley Borough Council Committee System - Committee Document

Meeting of the Council held on 17/02/2004
Executive - 3rd February 2004 : Flood Defence Funding Review - Critical Ordinary Watercourses consultation by the Environment Agency



ANNEXE 3

WAVERLEY BOROUGH COUNCIL

EXECUTIVE – 3RD FEBRUARY 2004

Title:
FLOOD DEFENCE FUNDING REVIEW – CRITICAL ORDINARY
WATERCOURSES CONSULTATION BY THE ENVIRONMENT AGENCY

GLOSSARY

Flood Defence Funding Review

1. The Government’s review of flood and coastal defence funding mechanisms announced, in July 2000, as an outcome of its Spending Review 2000, which identified the need for more funds for flood defence activities, following a succession of nationwide flooding emergencies. In addition to looking at options for the provision of increased funding, the review also considered whether current institutional arrangements were “fit-for-purpose” with a view to identifying changes to ensure efficient and effective flood and coastal defence and workable arrangements involving all of the agencies with powers and/or responsibilities in flood defence.

Main River:

A watercourse (and any controlling or regulating structure thereon) shown as such on a statutory Main River Map and for which the Environment Agency (EA) is the operating authority e.g. the River Wey, the River Blackwater, Cranleigh Waters (local authorities have no powers or responsibilities in relation to designated main rivers).

Ordinary Water Courses (OWs):

All streams, brooks, bournes, ditches, drains, cuts, culverts, dykes, sluices, sewers (other than public sewers) and any passages through which water flows except those designated as Main River.

Critical Ordinary Water Courses (COWs):

DEFRA’s definition:-

“Watercourses that are not classified as Main River but which the Environment Agency and other operating authorities agree are critical because they have the potential to put at risk from flooding large numbers of people and property”.

Definition agreed by the EA with the Local Government Association and the Association of Drainage Authorities;

“A critical ordinary watercourse is one that passes through an area of land use band A or B (see below for definition). The watercourse is only designated as critical for that length that is within the area of land use band A or B.”

Land Use Band Definitions:

A – typically intensively developed urban areas at risk from flooding.

B – typically less extensive urban areas with some high grade agricultural land and/or environmental assets of international importance requiring protection.

Operating Authorities:

Land Drainage Authorities (often referred to as Drainage Bodies) that have powers to undertake maintenance or works in the interest of flood relief or defence. Waverley is defined as an “operating authority” in that it has powers to maintain and improve existing watercourses and to construct new works.

The EA is defined as the “principal operating authority” in that it is charged with exercising general supervision over all matters relating to flood defence and it, alone, has powers over designated main rivers.

Enmainment:

A term coined by the EA to describe the designation of COWs as “main river” thereby transferring the powers of jurisdiction over them to the EA.

THE MINISTER’S STATEMENT

2. On 12th March 2003, DEFRA Minister, Elliott Morley announced the recommendations of the Funding Review. Part of his statement included the Government’s intention to make the EA responsible for all rivers presenting the greatest flood risk, interpreted by the EA as meaning COWs. The statement went on to say that, where responsibility is transferred from other operating authorities to the EA, there would be an opportunity for the Agency to contract back day-to-day operational activity to those authorities who were willing and had a good track record.

The implementation of the transfer and its timing is contingent upon the passage of the Water Bill, coincidentally currently in the parliamentary process, which is being used by the Government as a vehicle for the necessary enabling legislation.

THE CONSULTATION

3. On 9th July 2003 (received 11th July) the EA issued a questionnaire to each operating authority asking:-

1. for a schedule of all those watercourses in the Borough which the Council considers to fall within the COW definition;

2. if the Council is likely to object to the enmainment of any COWs or part thereof;

3. if we are aware of any party who might object to enmainment;

4. what assets would be transferred with the enmained COWs;

5. what contractual commitments with third parties we have for work on COWs;

6. any other known impediment to enmainment;

7. would the Council be interested in contracting back the day-to-day operational activity on those COWs;

8. the apportionment of the Council’s flood defence spending between COWs and other watercourses; and

9. any major improvement schemes currently in progress or planned on COWs.

The EA required an initial view on these matters by 1st August 2003. It acknowledges that, given the timescale, this might be an officer view and that the Member view might not necessarily accord with it. The consultation was therefore referred to the Chief Officer Group whose recommendations are reported below.

CRITICAL ORDINARY WATERCOURSE ENMAINMENT PROGRAMME

4. Officers met with representatives of the EA on 6th August 2003 to identify, and propose for enmainment, those lengths of watercourse, in the Borough, which they believed met the criteria for designation as Critical Ordinary Watercourses, in terms of flood risk to people and property. The EA has undertaken to confirm those watercourses which it proposes to accept responsibility for, by early 2004. A period of public consultation will then be required before those proposals can be included in the primary legislation needed for formal adoption. Maps of the proposed COWS will be placed on public deposit from mid-2004. It is programmed for the requisite legislative procedures to be completed by 1st April 2006.

WHAT ARE THE IMPLICATIONS FOR WAVERLEY?

5. Whilst DEFRA and the EA referred to the transfer of responsibility for COWs from local authorities to the EA, Waverley does not accept that it has ever necessarily accepted responsibility for all COWs only that, in some situations and circumstances, it has elected to do so, by carrying out maintenance and improvement works, in the interests of flood prevention. The Council has constructed an extensive infrastructure of flood defence works over the last 30 years and inherited that from its predecessor authorities, and has committed to its ongoing maintenance and management. Much of that infrastructure is on watercourses which may not be construed as meeting the “Critical” definition. It has been Waverley policy to carry out works to protect both large and small groups of property. Maintenance work is also carried out in a wide range of locations, not just on COWs.

PUBLIC ENQUIRIES

6. Much of the activity in relation to land drainage and flood defence is staff time in responding to public enquiries, referring issues to the appropriate agency and liaising with, and mediating between, riparian owners. Wherever practicable and reasonable we seek to identify the responsible riparian owners, remind them of their responsibilities and to ask for their co-operation in meeting those responsibilities. However, in many situations no riparian owner can be identified and, if the Council did not take action, flooding of property would continue. The Council is invariably the “first port of call” for those with drainage or flooding problems.

PLANNING LIAISON

7. Other activity comprises the examination of every Planning Application for its drainage implications, issuing advice and guidance to applicants and carrying out the statutory consultations with the EA on those which may affect flood risk or risk to the water environment. Flood risk assessments have become very sensitive issues in many applications, following the national debate on flood risk.

FLOODING EMERGENCIES

8. The Council’s existing policy is to respond to flooding emergencies 24 hours a day, 7 days a week, within the limits of the resources available by:-

(i) providing and distributing filled sandbags to residents who are at real and imminent risk of the internal flooding of their homes;

(ii) responding to requests to clear blocked screens, culverts, watercourses and ditches and removal of fallen trees therefrom, on all watercourses (not just COWS) where a flood risk exists; and

(iii) offering advice on flood protection and mitigation measures.

A minimum base level of staff is necessary for the performance of this function.

WHAT EFFECT WILL THE “TRANSFER” OF COWs HAVE?

9. The impact on the routine workload of the Engineers is expected to be small. The Council will remain the first point of public contact for flooding problems on COWs and will need to be able to identify the respective responsibilities and liaise closely with the EA on their apportionment. The transfer will, however, allow the Council to divest itself of significant liabilities, risks and some maintenance costs.

10. The most notable example is the Little Mead Brook (Cranleigh Stream) which the EA has already identified as a prospective COW. This water course has the potential to, and has resulted in, the internal flooding on a number of occasions, of up to 40 properties, domestic and commercial. The risks of recurrence in extreme storm rainfall conditions remain. The watercourse is partly culverted, with one length of over 250m of large box culvert protected by a large trash screen. At times of severe storm, the screen must have 24 hour attendance by a cleaning crew of at least 2 operatives, to minimise the risk of blockage which would result in the flooding of dozens of properties.

11. The cost of the routine clearance, of this site alone, is 3000 per annum. Emergency clearance in severe storm conditions can equate to a similar sum in particularly inclement years such as 2000/01. Members of staff need to be on 24 hour alert throughout the year, and need to constantly monitor developing conditions, night and day, in order to instruct an appropriate response by the emergency call-out contractor. It might be argued that the EA with a 24 hour control centre, permanently manned by trained flood defence engineers, armed with a phalanx of technological aids to rainfall and river level monitoring and forecasting, are better placed to be making decisions on an appropriate flood defence response.

12. If the structures on COWs are to be adopted by the EA, the Council will be relieved of a considerable long-term maintenance and replacement liability for several million pounds worth of infrastructure.

13. More recent case law (Bybrook Barn Garden Centre v Kent County Council) has established much greater liability on the owners of culverts for flood damage resulting from their incapacity, in even the most extreme flood conditions. It would be of benefit to Waverley if such potential liabilities were taken on by others better funded and resourced to manage the risks.

14. The above is, perhaps, the most extreme example, but similar but also less severe risks, and other structure liabilities, in other areas of the Borough, may be able to be transferred. It is recommended therefore that Waverley offers no objection to the enmainment of any watercourse which the EA agrees can be determined as “critical” in terms of flood risk.

CONTRACTING BACK

15. One of the Government’s principal purposes for the enmainment of COWs is to clarify and simplify the web of powers and responsibilities and the agencies which deliver them, for the benefit of the public’s understanding. It could be argued that by the EA being the operating authority for COWs but the local authorities, in those areas which elect to do so, carrying out their day-to-day management, and maintenance through DSOs or contractors, further confusion will be sown. However, 75% of the Councils in the Thames catchment area have expressed an interest in contracting back this work.

16. The questions are:-

1. Will the public be better served by Waverley managing the COWs in its area or the EA doing so?

2. Is Waverley committed to adopting a greater role in flood defence?

3. Are there any benefits to Waverley in entering into an Agency Agreement with the EA for the day-to-day maintenance activities on COWS?

CONCLUSIONS

1. Waverley has the benefit of local knowledge of its drainage infrastructure, historic, contemporary and geographic. It may also continue to carry out maintenance and improvements to OWs and non-watercourse related flooding activity. It is closer to the customer and is accountable, through the local elected Members. (The remoteness of the Water Utility Companies still troubles many residents who often seek Waverley’s help in getting a satisfactory response to problems related to Utility responsibilities). The out-of-hours management of flood risks on COWs, however, relies upon a non-specialist call centre and the alertness, goodwill and availability of a small number of engineering staff.

2. There is no evidence that the Council is seeking to adopt the greater role in flood defence which is sought by the Government, DEFRA and the EA. However, that role may change as a result of the enmainment programme and will need to be reviewed when details of the revised institutional arrangements are confirmed. In its report to the Government, required in response to its High Level Targets for Flood Defence for local authorities, the EA reported Waverley’s position as “willing but unable”, i.e. it does not have the resources to regularly monitor and inspect the flood defences on all COWs and report their condition to the EA. This acknowledges that we would not have the resources to comply with this requirement under an Agency Agreement.

3. The history of Agency arrangements e.g. Highways and Sewerage, suggests that they are only transitory until the principals have established their own resources and arrangements for direct delivery of the services. If the Agency work provided employment for DSO staff, for instance, which might make their retention more economic, it might be valuable. In our case, however, Waverley would need to contract out the operational activities on COWs to a contractor whose core activities are street cleaning or waste collection, which is how it is provided currently. The additional administration and on-costs might make this option uneconomic for the EA. If flooding resulted from the non-performance of Waverley’s contractor, the Council could still be held liable for its failure to ensure delivery of the specified service. A layer of administration would be required to define, monitor and evidence service levels and account and invoice for staff and labour costs. If we are to manage an Agency arrangement to meet the expectations of the Government and the EA, we will need to be adequately resourced to do so.

The Chief Officer Group recommend that:-

1. Waverley offers no objection to the enmainment of any defined Critical Ordinary Watercourses in its area; and

2. Waverley confirms that it does not wish to contract back, from the Environment Agency, the day-to-day operational activity on Critical Ordinary Watercourses.

comms/executive/2003-04/437