Rural Affairs and Environment Committee, 16 Apr 2008

Meeting date: Wednesday, April 16, 2008

Official Report 338KB pdf

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Flooding and Flood Management Inquiry

We move to agenda item 6, which I understand we agreed to take in public. For obvious reasons, the private paper that was circulated to members need not be treated as such now that we have agreed to discuss the item in public.

In the paper, the clerks raise four outstanding issues on which they are looking for a steer to allow them to make progress with drafting the report. I remind everyone that the decisions that we take today are not final decisions. We will simply work through the four issues to get a feel for where things are, but any decisions that we make are not final. We have allocated until 12.45 to go through the paper.

I seek clarification from the clerks on whether the evidence that we received from the Met Office about weather predictions, which is not mentioned in the paper, will feature in the report. I am quite keen to see that.

Yes.

The paper is not a summary of the report—it simply lists some outstanding issues on which the clerks feel they need a clearer steer. One such issue, as will be dead obvious, is whether the Scottish Environment Protection Agency should act as an umbrella group. We heard conflicting evidence on that question.

Let us consider the issues in turn. Paragraph 2 refers to the question whether flood management should take place at a catchment level. Two points are raised about that. First, we are asked to consider

"whether funding to local authorities should be allocated on a catchment basis (for example, with a requirement that local authorities' expenditure on flood management contributes to an agreed catchment plan rather than to just their individual needs)".

What is our feeling about that? Does anyone want to comment on that issue?

I certainly feel that money should be distributed "on a catchment basis", but I do not think that the wording actually helps. Believe it or not, I think that we should take out the phrase "on a catchment basis" so that we are asked "whether funding to local authorities should be allocated with a requirement that local authorities' expenditure on flood management contributes to an agreed catchment plan". That sounds exactly right to me. It seems pretty obvious that money has to be distributed "on a catchment basis", but how that should be done raises many technical issues. I do not know whether that helps.

Does anyone else have any comments on this issue?

We are trying to ensure that funding is available for catchment areas. Whether a body should be established to receive that funding is a separate question. The point is that, wherever the funding goes, there must be acceptance that whatever happens upstream affects what happens downstream and vice versa, and that people simply need to work together.

The other issue is the basis on which funding should be allocated. Read simpliciter, the text appears to suggest that each catchment should receive annual funding. However, flood management works more on a project basis and, because it all depends on need, allocations are uneven. Although Peter Peacock is entirely right to say that funding

"should be allocated with a requirement that … expenditure … contributes to an agreed catchment plan"

the Scottish Government is also responsible for finding a generally understood mechanism that identifies need from catchment to catchment and which allocates resources systematically.

If members have no other comments, the clerk can go off and start work on a more detailed draft.

A simple funding formula will not work. Authorities such as Perth and Kinross Council and the City of Edinburgh Council have had to deal with big problems, while others have not had to introduce any major schemes. I realise that there is already a system in place but, given that flooding money has been de-ring fenced, how do we ensure that authorities that genuinely need the money get it, and that those that do not have the same problems do not receive a disproportionate amount of the funding?

Essentially, the system must be strategic and transparent.

I think that we have given Mark Roberts enough to go on for the draft. I repeat that the decisions are not final.

Do members have any comments on the second bullet point in paragraph 2, which asks

"whether there should be a duty on local authorities and other relevant bodies operating in the same catchment to work together or should this be left to a partnership approach such as that illustrated by the Metropolitan Glasgow Strategic Drainage Plan"?

I think that partnership working is great. If we have learned anything at all, it is that it has to happen. As a result, it must be a duty.

I agree.

I wonder whether such a move should be a last resort.

The people from Glasgow, who already work well together, wanted it to be a duty.

That is kind of true. I think that partnership working should be made a duty, but I would not say that everyone agreed with that.

Everything that will be drawn out in our discussions and any contradictory evidence will be highlighted in the report. Regardless of what people on either side of the argument say, the committee can reach a view one way or the other. If members feel that working together should be made a duty, the clerks will be able to draft that section in those terms. Is everyone happy with that?

The Glasgow approach probably worked because it benefited everyone—although perhaps not always to the same degree. With catchment areas, however, there might not be any common benefit and without a duty we might not get any action. That is why we need it.

We move to paragraph 3. The European flood directive demands that a competent authority for flood risk management be appointed. The Scottish Government's consultation on its proposed legislation suggests that the body should be SEPA. Do members agree that SEPA should take on the role? Should it be some other body? If we agree that it should be SEPA, should it have additional powers? That is one of the areas in which there was a huge variation in the evidence.

Our work here is not complete, so we cannot possibly tell the clerks whether SEPA should have that role. What emerged when SEPA gave evidence was a question over its independence, and whether it is able to resist interventions from other authorities, such as the Government. The minister told us:

"I have never intervened in a planning process."—[Official Report, Rural Affairs and Environment Committee, 19 March 2008; c 613.]

We still need to explore how effective SEPA is in defending its role from Government intervention on, for example, building houses on a flood plain.

That would be part of the follow-on point. If we were to agree that SEPA should be the competent authority, would the way in which it is set up need to be changed or bolstered to allow it to assume that role?

I feel—as I think do other committee members—that we need to take more evidence from SEPA.

There is no time to do that.

I am sorry, but I feel strongly about this. I requested—in fact half the members of the committee requested it—that SEPA be asked to come back to the committee to give us that information. There will be a fundamental problem with our report if we have not explored that issue.

Your argument would be that SEPA would have to be given more powers, on a basis that would be different from that on which it is constituted.

That is not my position. I am trying to find out—as I could easily have done had I been allowed to ask SEPA—whether SEPA is sufficiently robust in its current construction to take on the role of competent authority. I am not talking about whether it should have additional powers. There is a genuine question, which SEPA needs to answer: Is it robust in its dealings with other organisations, including the Government? If we recommend to the Government that it set up SEPA in that role, we should be certain that SEPA has an arms-length and robust approach. That is fundamental.

Do any other members have comments on this section?

There is something in what Mike Rumbles says, but I will perhaps come back to that.

It is hard to envisage what organisation other than SEPA could fulfil the function of competent authority. As far as its grasp of the issues is concerned, SEPA's evidence was hugely impressive. That said—and partly to address Mike Rumbles's point—SEPA would have to be subject to further statutory requirements so that it was protected from potential interference. Mike raises an important point about the ability of an independent body to sustain its independence and to take a tough position, against the interests of others, in order to protect the interests of the wider population.

That ties in to the question of additional powers. John Scott has raised the point on more than one occasion—I am sure that he will again today—that if we give SEPA the role of competent authority, how would it, as a non-democratically elected body, instruct democratically elected bodies? That presents us with a difficulty, but I do not see an alternative.

I would put conditions on SEPA's powers. For example, SEPA could have the power to seek plans or to ask a local authority to reconsider its plans if SEPA was not satisfied. I suspect that, ultimately, the decision would have to lie in the hands of a minister; therefore, SEPA would have the power to refer to a minister if it was not satisfied that plans were being upheld. The matter is not quite as straightforward as it appears in the paper. However, subject to such considerations, SEPA is probably the right body.

This discussion is useful for the clerks, as it allows them to explore the matter in greater depth.

We are all aware of examples of the need for statutory provision regarding flood risk assessment, which is an issue that came out of the evidence sessions. SEPA said clearly that, where there is a risk of flooding, it would want a statutory flood risk assessment to be provided before a planning application was considered. That backs up what Mike Rumbles said about the potential need to enhance SEPA's role. Given everything that has happened and in order to protect everybody who is involved, carrying out a statutory flood risk assessment before a planning application was considered would help everybody and would prevent people from being put in houses that are at risk of being flooded.

If we were to go down that road, we would need to think carefully about the size of planning proposal to which that measure would be applied. It would become an onerous burden if we were talking about applying it to relatively small developments. We must balance our concerns in this area against our concerns in our inquiry into rural housing. Therefore, when we discuss that suggestion in the detail of our report, we will need to consider how the process could be managed in practical terms.

Yes, but the evidence that we have received puts forward a case for such a measure.

I back up pretty much everything that Peter Peacock has said about SEPA.

He is looking worried.

Is he? Oh dear. I will temper my comments somewhat.

Opinion is divided between those who believe that SEPA should take on the lead role and those who believe that it should not. However, when asked, those who said that it should not did not suggest any alternative.

The choice is either to give SEPA the role or to create a new organisation.

Precisely, and we are left saying that it has to be SEPA. Peter Peacock made the point well that we must supplement that recommendation with another recommendation—or recommendations, although I am not saying what they should be—as to what exactly that means.

Yes—perhaps by bringing in some of the points that have already been raised.

I agree largely with all that has been said, especially by Peter Peacock and Jamie Hepburn. We must ensure that SEPA operates at arm's length from the Government. However, notwithstanding that, and as Peter Peacock rightly said, decisions must ultimately be in the hands of ministers. SEPA will make recommendations to ministers, but that must be done from an arm's-length position. The situation is no more complicated than that.

If, on examination, SEPA is not regarded as being sufficiently at arm's length, perhaps it should be made more so. However, I would not go any further than that. I do not think that there is any need to take further evidence, as that is the conclusion that we would probably arrive at.

Karen Gillon mentioned the need for statutory flood risk assessments and the convener talked about rural housing. We should also think about making such assessments compulsory for strategic developments such as power stations and emergency services. We do not want our fire stations and police stations to be stuck in the middle of a flood plain so that, when the flood comes, they are the first places that have to be abandoned. We do not want the police to say to people that they cannot help because they are busy moving out their equipment.

We could recommend the statutory provision of flood risk assessments for strategic projects and projects above a certain size—major developments—which we could define.

Is what has been said so far helpful?

Members indicated agreement.

John Scott asked—I wrote this down—how we can ensure that SEPA operates at arm's length from ministers. To me, that is the fundamental question. If we are going to make such dramatic statements, we should ask SEPA and ministers how they operate together. That is our job.

Jamie Hepburn says that SEPA should take the lead role, as do many other people and organisations. That is what concerns me. I do not think that we, as committee members, are competent to produce a report that recommends action one way or another because we have not been allowed to question SEPA or ministers about that. It is essential and fundamental to the effectiveness of our report that we treat the matter properly and seriously. I cannot see how we can do that unless we ask SEPA and the ministers to give evidence again.

A number of questions were asked of SEPA about precisely that—although not in the context of the specific planning application that you were talking about. That is the difference.

I presume that Mike Rumbles is suggesting that the responsible body must be an organisation other than SEPA. However, if we cannot come up with an alternative to SEPA, we are at a dead end. If Scottish Water, for example, was suggested and there was an argument for that, there could be an argument for our taking further evidence. However, without an alternative being proposed—

That is not what I am saying.

There is a discussion to be had about the possible extension, bolstering or protection of SEPA's powers in respect of the issue. We need to be careful, as there is an awful lot of criticism outside the Parliament of SEPA's role. We are talking about flood management issues, not the whole of SEPA's operations. There is already considerable resistance to many of the things that SEPA does, and it would not necessarily be a very popular move if we were to make SEPA even more independent and less accountable. We are talking specifically about flood management in this instance.

There are a variety of ways in which we could develop additional powers. Probably the easiest and most practical way would be to have some sort of precept operating on authorities in order to gather in the resources that would be required to achieve the goal. Alternatively, we could put in place retrospective legislative triggers. The issue is the safeguards in the context of which SEPA would exercise those powers and who the overseeing authority would be. Ministers would probably have a role in that, but Mike Rumbles is right to say that we do not want ministers to interfere with the professional, operational decisions that are made by the people who are involved.

Saying that we want SEPA to have additional powers raises two questions. First, what are those powers and what financial elements would be tied into them? Secondly, how can we use ministers as the safeguard in driving through both the financial precepts, or something similar, that might be necessary and the imposition on SEPA of a framework of powers that are subject to ministerial authority without allowing ministers to interfere in the professional judgments that are made in specific cases? We need to unpack those arguments in putting forward the idea of giving SEPA additional powers.

We will obviously have a longer discussion about those aspects when we consider our draft report.

We have two more questions to deal with.

I think that the body should be SEPA. If it is not SEPA, we will have to invent a body. It is a bit like the sportscotland debate—if you want a sportscotland, you have to make a body that is sportscotland.

For me, the issue is about the safeguards and the openness and transparency of the process. A statutory requirement for a flood risk assessment before a planning decision was made would provide the necessary safeguard. Everybody needs to know the circumstances under which we are operating—what the risks and the mitigating factors are that need to be taken into account. They need to know that planning applications are not speculative or subject to planning conditions that will not be enforced. The risks and mitigating factors need to be known up front before anybody makes a planning decision, whether the application is for a major housing development, a large supermarket, a police station, an ambulance station, a hospital or whatever. That would give protection so that nobody—whether a local authority, a minister or a developer—could be seen to have undue influence on SEPA or put undue pressure on it.

If something is statutory, it cannot be set to one side—a statutory requirement is one that must be fulfilled. At the moment, the problem is that there is no statutory requirement, so such an assessment can be set to one side. A form of words can be found.

Okay. I want to move on to the other two issues.

A decision must be made before we move on. If we do not take evidence, we will fail in our duty as members of the committee to address a fundamental issue for our report. I understand what Karen Gillon is saying. She has made a point from a particular viewpoint, but I do not know what her view is based on, as we have not been allowed to question SEPA or the ministers on the matter. Unless we are allowed to question them, I do not see how we can produce an effective report that will stand up to scrutiny. It will not be effective—it will be holed below the water line if we cannot ask those questions.

There have been questions—

You ruled me out of order for pursuing that line.

SEPA has been asked questions about the matter.

You did not allow me to ask questions.

I am sorry, but I did not allow you to ask questions about a specific planning application. That is not the same thing, as you well know.

That is not true.

I will not rerun the debate.

I was not asking about a planning application; I was asking about something that had taken place.

I will not rerun that debate. The decision has been made.

The problem in this committee is that you will not allow discussion.

You are now out of order.

I will try to be helpful. There is an elephant in the room, and identifying it might help to sort things out.

Mike Rumbles alluded to the fact that there is correspondence between some committee members and the convener on taking further evidence. The convener properly made a ruling in accordance with her rights, but the problem is that that people do not know about that correspondence because of how such things happen. Therefore, it would be helpful to make it available on our website at some point as a record that some members expressed the view that more evidence should be taken.

Four members requested that.

The convener properly exercised her powers. I am not challenging that, but it would be helpful if the correspondence was on the public record somewhere.

I would need explicit consent to make that correspondence public from all members who participated in producing it, as it was not produced as public correspondence.

Four members of the committee requested more evidence. You refused even to put the matter on the agenda. I agree with Peter Peacock that the correspondence should be published.

That is fine. It can be published, as long as all members who participated in producing it are happy about that. As I said, it was not produced as public correspondence; it was produced as private correspondence.

Are we going to go back into the matter?

No. We are not going to reopen oral evidence sessions.

I request a vote on that, please.

I am sorry, but we are not continuing with the matter. There are questions that we need to deal with today. We must move on to paragraph 4 of our paper.

The proper procedure is that if we have a disagreement, it should be recorded.

A vote is not the way forward. It is not required or necessary, and it is not going to happen.

In that case, the committee will not agree to the report.

Accept the ruling, Mike. You are out of order and wasting the committee's time.

No. You are wasting the committee's time.

I will move on, if I may. Paragraph 4 in our paper is on natural flood management techniques. We must consider whether there should be a duty to consider natural flood management or whether people should be left to consider that on an ad hoc basis.

We should argue for a presumption in favour of natural flood management.

So people would have to say why they are not considering natural flood management techniques. Is everybody happy with that?

Everybody is not happy with what is going on here. I am certainly not happy.

I have already ruled you out of order.

You asked me a question and I responded to it.

Are you talking about natural flood management techniques?

Yes. I am not happy with what is going on here. I am not happy with the paper that is in front of us or that we have been unable to take proper evidence.

Do you have a comment to make on whether natural flood management techniques should be required?

We could ask SEPA that, could we not?

We need to make a decision on the matter.

That is what I have been asking for.

Des McNulty spoke about a presumption in favour of natural flood management. Should the approach be as strong as that? Is a duty in law to consider natural flood management not sufficiently strong?

A presumption is a slightly different thing. There would not be a duty to consider natural flood management techniques in every case. If a presumption were imposed, the body would have to say why it decided not to do something. Pre-existing evidence could militate against doing something. In that case, we would not want the same approach to be taken every time.

I am happy with the general principle that there should be as much natural flood management as possible.

A presumption is not as strong as a duty.

I see. I beg your pardon.

With a presumption, the onus is on bodies to say why they will not do something, but the possibility that they will not do it is left open. I can think of situations where something had been considered previously, and the proposal did not work, or where something was already ruled out by a previous study. It might be felt in such circumstances that going over the same ground again would not be helpful.

Will we take Des McNulty's suggestion on board? When we expand on it, we can have a further discussion about it. That seems a reasonable compromise.

Paragraph 5 says:

"Local authorities have been universally critical of the current three stage approval process for flood prevention schemes which requires approval for the scheme from Scottish Ministers, planning permission and approval from SEPA under the Controlled Activities Regulations regime. The Scottish Government has proposed … two alternative models to streamlining this system: one relies on Ministerial approval carrying deemed planning consent for a flood prevention scheme … and the other would remove Ministerial input and place responsibility solely in the hands of local authorities. Does the Committee have a view on either of these models?"

Indeed, do we have a proposed third model, or even a fourth?

I am idly curious about this. To go back to paragraph 3, we are making SEPA a possible responsible body. Is it not possible to have a third model whereby SEPA provides the required consent? I merely put that forward as a question.

On paragraph 5, it is entirely right to do away with the two processes, and to have deemed planning consent being given on the back of one process. The question is whether the process should lie purely in the hands of local authorities or whether ministers should take a view. I suspect that the reason for that question even being raised is that, as soon as we build in ministerial approval, further delays inevitably arise. I recognise the dilemma. In circumstances where flooding schemes impact on more than one local authority, perhaps on different sides of an estuary or river that is a boundary, there must be some process whereby just one authority cannot make the decision. There might also be conflicts of interest over local authorities' land uses. Ministers would ultimately be required to have a role there. If we accept that, can we reform the way in which ministers operate administratively? That is a cause of delay in itself.

I wonder whether the processes could be put in parallel—whether ministerial consideration could happen alongside, and whether the time taken to sign something off could be truncated at the end of the process. There is a series of issues there, but I cannot see how ministers can remove themselves from their position. There will be conflicts of interest to resolve and, on occasion, decisions will need to be taken that concern more than one local authority.

It might be possible for both models to coexist, for different kinds of application. I would have thought that smaller applications could be dealt with entirely by local authorities, and that there would be no need for ministers to get involved. It might be inappropriate, however, for local authorities alone to deal with larger applications that cut across two local authority areas or that are of sufficient size or significance, and they might be better dealt with through ministerial approval. That is akin to the planning system. We could argue for a similar arrangement for flood management.

When ministers take decisions on such matters, there is a need for a mechanism to ensure that it is done on the basis of independent advice from someone who was not involved in any previous process. If SEPA is the flood risk management authority—

Where does the advice come from?

Will SEPA also act as the mechanism that provides the advice? An independent section within SEPA might be required to deal with such situations. That, again, would be similar to the planning system. It is a question of complexity within the mechanism that is proposed.

The problem is that even small developments might have quite an effect downstream, possibly in another council area. There would be a problem with saying, "This is a matter for the council and that is for a minister," because of the possible effects downstream.

I largely agree with Des McNulty that whether a scheme is referred to ministers might depend on its size, but when, for example, a scheme involves local authorities on opposite sides of the Forth there has to be a final arbiter. The existing system might not be the best, but it is the best we have and we should tread very carefully before we rush to change it. The existing system—and no other way—has been involved empirically over the years. While the process is protracted, it is reasonable.

Timeframes and timescales are frustrating people, so maybe we should recommend that ministerial decisions have to be taken within X months. I do not think that ministers can be taken out of the process.

But the time issue is not just about ministers; it is about the whole process. It all adds up to an extraordinary length of time. There should be tighter timescales throughout the process.

Sarah Boyack was talking about the Edinburgh scheme the other day. She said that it takes something like eight years. Perth would have a similar timescale. How do we speed the process up? That is really the issue for the reporters. It does not matter what the process is; if no timescales are set, how long it takes is like a piece of string. People have been flooded. They could be flooded again next year. And the next year. We have a duty to get on with it and set the timescales within which we are going to work.

I have two minor points, one of which I meant to mention when I was talking about what Des McNulty said. It is about the idea of having an independent subdivision, if you like, of SEPA. I am always a bit cynical about the idea of an independent body within a body, because a member of the independent body might want promotion, or to move out. It is not really practical.

Oh, you are so cynical.

I know I am, but there we are.

Also, I seem to recall that there were a lot of concerns about who could appeal against or object to a flooding planning decision. Was it Moray Council who said that there were some objectors downstream because they wanted a similar deal, and that that was their ground for objection? I do not know whether that touches on what we are talking about, but it seemed to be a significant point that was raised in evidence.

All we need to say in the report is that we have to be very careful. I accept Karen Gillon's point that the process must be streamlined. I will allow those who are better equipped to come up with a better solution.

Could we ask the clerks to look at what happens with railways, for example, when the new system that is not the private bill system comes in? Can we learn anything from that that could be applied to major flood prevention schemes?

It might be possible for the clerks to produce a factual paper about that, but it would be difficult to take it on board in detail at this late stage in the game.

Absolutely, but we have seen that there are problems with who is allowed to object and the timeframe within which they are allowed to object.

You would like to see an example of a different way of doing it, to inform our report?

Yes. We are just making recommendations to the Government at this stage.

Yes. I propose to have the previously private paper put on the website, given that the agenda item has been discussed in public. The first draft of the report will be discussed at our next meeting, which is next week—I remind everyone that we have an extra meeting.

Convener, as you are aware, I submitted evidence to the clerks on the flooding inquiry. I see that the clerk is shaking his head, but I did. I also asked that that evidence be copied to other committee members. I understand that that evidence has not been copied to other members. I would have hoped that, as a simple courtesy, the information that I passed to the committee clerks would be published as part of the evidence to the committee and been made available to other members of the committee. That is quite normal practice.

I am not sure that it is relevant to this agenda item.

It is fully relevant to it. The agenda says that

"The Committee will consider issues that have arisen in the inquiry."

The issue of what was then a set of correspondence about a particular issue is not relevant to the discussion that we have been having during the past half hour.

Again, you have prevented other members of the committee from receiving it. That is discourteous, to say the least.

I am not going to go into that in detail. All the correspondence will be put on the website and everyone will be able to see exactly what the exchanges were.

I do not know whether this is appropriate, but there are two things in the papers that were circulated for information to which it is worth drawing attention. One is the note from the Crown Estate, which shows that it has made substantial movement on the advisory committee. It is worth noting that; the body is wide ranging. Secondly, there is a fascinating piece of evidence from Professor Putnam about the Deer Commission Scotland. It is not something that I would normally get very excited about, but he makes some extremely pertinent points and I hope that we can return to that at some point.

I would like to see both of those comments on the website, particularly the one about the Deer Commission Scotland. If it is to become part of Scottish Natural Heritage, it too must stand alone within SNH, given the obviously high regard in which it is held.

I do not want to move into completely separate agenda items.

I remind everyone that we have an away day in June, at which suggestions can be made for future work for the committee. Those two issues sounded to me like ones that could be raised in that context.

Meeting closed at 13:06.