With a growing number of commercial and residential properties affected by flooding in the UK over recent years, developers and occupiers increasingly need to focus on effective flood-risk management. Current forecasts indicate that, due to climate change, the risk of flooding will significantly increase in the future – with substantial economic consequences. The government is therefore in the process of strengthening planning policy guidance to help address this risk. It also seems likely that the Environment Agency will make greater use of its statutory powers to take enforcement action and increased requirements are likely to emerge at the EC level.

Flood risk

Flooding occurs when the amount of water arriving on land (from rainfall, snow melt, surface flow, flow in watercourses or inundation by the sea) exceeds the capacity of the land to discharge that water. Human activity can increase the likelihood and adverse impact of floods, and the financial costs of any damage. Extreme weather and sea-level rise caused by climate change are also aggravating the impact.

There is increasing recognition that flooding needs to be adequately addressed when undertaking developments in areas of substantial flood risk in the UK. According to Defra (the Department for Environment, Food and Rural Affairs), 1.8 million residences and 140,000 commercial properties in the UK (four to five million people) could be affected by floods. The average annual damage from flooding is estimated at £1bn a year and could exceed £3bn without preventive action being taken. Much of the current pressure for development in the South East is located within the Thames tidal floodplain, estimated to have 1.25 million people and around £80bn commercial investments located within it. A balance therefore needs to be struck between catering for the risk and still encouraging investment and regeneration.

Who is responsible for managing flood risk?

Defra has overall responsibility for policy on flood and coastal defence issues. Operational responsibility for delivering the services falls to the ‘operating authorities’ – the Environment Agency, local authorities and internal drainage boards. However, practical responsibility for implementing flood management measures lies with the landowner or occupier.

The Environment Agency has a general supervisory duty covering all matters relating to flood defence and has wide-ranging responsibilities regarding the management of water resources and the control of pollution in inland, estuarial and coastal waters. However, much of the Agency’s regulatory efforts on flood management are applied through the land-use planning system in its role as an adviser to planning authorities.

How is flood risk managed in the planning process?

The new Department for Communities and Local Government (which has replaced the Office of the Deputy Prime Minister) is responsible for the planning system and for issuing guidance on the extent to which flood risk should be taken into account by planning authorities.

In July 2001 the ODPM published the current ‘Planning Policy Guidance 25: Development and flood risk’ (PPG25). This aims to ensure that flood risk is considered at all stages of the planning and development process as part of regional and local plans, as well as decisions taken on specific proposals. In particular, PPG25 indicates that all development proposals located in flood-risk areas should be accompanied by a flood-risk assessment containing the developer’s proposals for reducing the risk of flooding and minimising damage should floods occur.

Local planning authorities are obliged to consult the Agency on floodrisk assessments. In turn, the Agency will make recommendations on what flood-protection measures might need to be carried out to reduce flooding risk to an acceptable level. This will often result in the planning authority imposing ‘Grampian’-style planning conditions that prevent development taking place until such time as flood protection measures have been properly implemented.

Planning authorities are not bound to follow the Agency’s advice. Its role as statutory consultee in the planning process is limited to a few areas (mining operations, works on river beds and banks, and use of land for waste purposes) and developing in flood plains is yet to be included in this. The Agency can currently only make representations to the local planning authorities on flood-risk issues and whether a proposed development is appropriate. A planning authority can therefore still give the ‘green light’ to a development, notwithstanding the Agency’s concerns. In such an event, the Agency would need to rely on its own statutory powers to address ongoing flood risk.

The powers of the Environment Agency

The Agency has general powers under the Water Resources Act 1991 to maintain and improve main rivers to allow for the efficient passage of flood flow and the management of water levels. The default responsibility for maintenance to avoid flooding lies with the riparian owner, but the Agency can enforce these obligations by serving an enforcement notice. The Agency also has powers to construct and maintain defences against flooding and to issue bylaws for flood-risk areas.

While not being able to stop planning permission being granted, the exercise of these powers could potentially have significant cost and timing implications for developers. For instance, the Agency could hold up construction works by serving an enforcement notice requiring that suitable flood-protection works be carried out. If this affects adjoining landowners and occupiers, reaching agreement on the methodology and expenditure involved may be far from straightforward.

The Agency’s powers are permissive only (ie the Agency is not statutorily bound to exercise them) and the powers have not been much used in practice to date. However, as a result of the financial and social costs that can arise from flooding, there is increasing political pressure on the government and the regulators to pre-empt such damage. In addition, adequate insurance is not always available or affordable, and the government will be reluctant to provide open-ended compensation to cover damage caused to buildings and the impact on commercial operations. This is likely to result in the Agency adopting a more active approach to exercising its statutory powers, especially when its advice to planning authorities has not been followed.

Recent developments in the UK

A press release from the Agency in February 2006 stated that although 92% of planning decisions were made in line with Agency advice between 2004 and 2005, there were still 21 major developments decided contrary to such advice. A large proportion of these developments were residential. Barbara Young, chief executive of the Agency, was quoted as saying:

We believe this reinforces the need for national government scrutiny of such cases… and [acknowledge] that we should have an enhanced role as statutory consultee on flood risk.

A new draft ‘Planning Policy Statement 25: Development and Flood Risk’ (PPS25) was issued for consultation in December 2005. It aims to reduce the scope for developments being authorised contrary to Agency advice and will also subject planning applications in flood-risk areas to more thorough scrutiny. One of the specific proposals in PPS25 is for a government minister to make the final decision on major planning applications where the local planning authority intends to approve it but the Agency has objected. This proposal might actually assist developers, as it could be argued that it would be unreasonable for the Agency to then take direct enforcement action that contradicts the minister’s decision. It is also proposed in PPS25 that the Agency will become a statutory consultee where the planning application relates to a development in a flood-risk area.

Currently, it is only recommended that planning authorities consult the Agency on development proposals that relate to flood-risk areas. For economic reasons, however, the new PPS25 will not impose an outright ban on developments in high-flood-risk areas.

European developments

In the meantime, the increase in the scale and frequency of floods across Europe as a whole has prompted EU action to address flood-risk and limit the damage caused to lives and property. In January 2006 a proposal for a directive was published by the European Commission to create an EU framework for flood-risk management. The framework will consist of a threestep process:

(1) Step one – member states will have to undertake a preliminary floodrisk assessment of all their river basins and coastal zones. This assessment will provide a broad categorisation of the risk as either (a) low or not reasonably likely to occur; or (b) potentially significant or reasonably likely to occur.

(2) Step two – member states will be required to develop flood-risk maps where real risks of flood damage exist. These maps will show the geographical areas that could be flooded in various scenarios and will indicate the number of inhabitants that could be affected in the area, as well as the likely economic and environmental impacts.

(3) Step three – flood-risk management plans will then have to be drawn up for these areas that will describe the appropriate level of protection required, including requisite sustainable measures to reduce the probability of flooding and the potential consequences.

To a large extent the EU approach has already been implemented in the UK – for instance, the Agency providing indicative flood maps covering flood risk in key areas. Defra has also been producing a wide range of maps including shoreline management plans (SMPs), water level management plans, and river basin management plans. However, not all of these plans are statutory based. Under the EU approach, it is likely that mapping will become a more consolidated process.

The directive is still being negotiated under the convoluted EU legislative system. It is currently intended that the preliminary flood-risk assessments should be completed by December 2012 with subsequent revisions in 2019, 2021 and then ongoing revisions every six years.

The EU measures could lead to even greater constraints on development, and in some cases a prohibition on the construction of residential and commercial properties in flood-prone areas in the UK. Increased requirements for the adaptation of existing and future developments to reduce flood risk can also be expected.

If the directive does become law (which looks likely given the broad consensus within the EU Parliament and the Council), it will be interesting to see how it is then implemented in this country, as it will cut across the use of the planning regime as the main means of addressing flood risk in the UK.