17 May 2002
**BY EMAIL**
Flood & Coastal Defence Funding Review Consultation
Defra
Area 3E
Ergon House
17 Smith Square
London SW1P 3JR
1 Queen Anne’s Gate
London SW1H 9BT
Telephone 020 7344 1844
Fax 020 7344 1866
e-mail contact@water.org.uk
website www.water.org.uk
Pamela Taylor
Chief Executive
Dear Judy Johnson
Response from Water UK
Water UK is the industry association that represents the UK water and
sewerage companies at national and European level.
Why are we responding?
Whilst sewerage undertakers have no responsibility for flood defence they do
have a statutory duty to “ensure that (an) area is and continues to be
effectually drained” (section 94 Water Industry Act 1991). This means taking
away sewage effluent and also taking away surface water run off. Sewerage
undertakers should therefore be included in the list of bodies with some
responsibility for dealing with aspects of flooding.
One problem with this whole subject currently is the large numbers of
organisations with some responsibility for flooding matters and this is why
your proposal for a Regional Customer Body and an Operating Authority has
a great deal of merit offering the possibility of a fully integrated approach.
We also wish to comment on the proposal for a Surface Water Charge that
could be levied on sewerage bills (which you are not recommending).
2
Sewer flooding
The legal duty on sewerage undertakers to drain an area means that if a house
suffers from sewer flooding customers have a legal right of redress against the
sewerage undertaker.
This has recently been extended by the Court of Appeal (Marcic v Thames
Water Utility Limited) that even external flooding of a property is actionable
under nuisance and the Human Rights Act. The House of Lords is considering
whether to hear an appeal on this case. Ofwat are also currently conducting a
consultation on internal sewer flooding (which we are responding to), but
broader issues are raised.
We agree that flooding is unacceptable. We note your point in para 23 that a
joint Defra/Environment Agency research study has been “commissioned into
the impact of flooding on people which in the longer term is intended to
produce a methodology for quantifying such social aspects in economic
analysis”. This is good and will be valuable especially in helping prioritising
companies’ investment plans to address sewer flooding problems. However
we must not miss the central point.
From a householder’s point of view flooding is flooding and we want to avoid
the danger of appearing to be talking about “the wrong sort of flooding”!
It is on the subject of Sustainable Urban Drainage that we wish to comment
and how it measures up to your objectives (which we support) of encouraging
“the provision of adequate, technically, environmentally and economically
sound and sustainable flood … defence measures”.
SUDS
PPG25 recommends that Sustainable Drainage systems should be used where
appropriate and we agree with this. SUDs are so-called soft techniques that
aim to mimic natural processes. It is not a glib comment to say that flooding
is a natural process and there is a case for upstream “flood meadows”, where
owners are subsidised to allow their land to flood naturally.
However the water industry is concerned that in some circumstances there
could be dangers to householders of sewer flooding from SUDS.
3
We think that they need to be designed properly and be appropriate to the
topographical/hydrological conditions. Who has the responsibility for
maintenance and/or adoption needs to be clarified? This would also assist the
regulators when they are considering the investment programmes of the
companies.
The Water industry is not just sitting back. We are working with
Defra/DTLR, the Environment Agency, Ofwat and the Local Government
Association to produce a manual of design standards that define more clearly
what “appropriate” means.
The industry is also running a $700,000 research project (jointly with the
American water industry) through UK Water Industry Research (UKWIR).
The aim is to determine the real costs and performance of SUDS structures,
both hydraulics and water quality.
In particular we are concerned that the maintenance arrangements for such
systems, which may be communal or on a householder’s property, can over
time break down and contribute to flooding.
To explain. Householders have a legal right (s106 WIA 1991) to connect to
the public sewer. There are good public health and environmental reasons for
this. However if a housing scheme is designed with SUDS techniques, the
piped systems will also be designed to a capacity that takes this into account .
If for whatever reason the householder decides to exercise his/her right to
connect to the piped system, designed for a lower load, this can lead to sewer
flooding.
The Court of Appeal explicitly stated in the Marcic case that sewerage
undertakers can still be liable even if the sewerage system is functioning
according to its design but is now inadequate because more people have
exercised their right to connect and flooding occurs.
The right to connect is not just a SUDS problem but is a major cause of
adequate drainage system being rendered inadequate, with consequential
backing up and flooding.
We believe that a law change to amend the section 106 connection right (to
perhaps the same as in Scotland?) could help here. Ofwat is seeking a law
change to allow sewerage undertakers to limit connection of surface water
drains. We support this change.
4
However a more holistic approach to all the causes of flooding, with one
statutory body responsible for all aspects (from land use planning to coastal
defence) would set out responsibilities most clearly.
We have made similar points to the DTLR consultations on the Planning
System, Major Infrastructure Projects and Planning Obligations, where we
suggested that the Secretary of State be empowered to issue guidance which
would be binding on all other statutory bodies in the carrying out of their
functions.
Answers to Regional Customer Bodies and Operating Authority
(x) we support the principles for institutional arrangements, ie that they should
be efficient and effective, offer simplicity and transparency, include
accountability, local democratic input and autonomy.
We think that a single authority – the Regional Customer Body and Operating
Authority - for all flooding arrangements including sustainable drainage
systems, would be a way of achieving these objectives.
A catchment basis for these bodies would be most appropriate, as required by
the Water Framework Directive (WFD). This would allow them to take a look
at all issues on the catchment and make the strategic decision about what is
appropriate to that catchment.
Article 14 of the WFD requires public involvement in implementing the
Directive and this could be one way of facilitating that requirement.
The funding for these bodies should come central government, most possibly
from redirecting the current funding arrangements.
Answer to other funding options
(iv) We agree with the recommendation that a surface water drainage charge
levied on customers through their sewerage bill is not a viable option.
This is supported by recent Government policy, as stated in its guidance to the
water industry regulator under the Water Industry Act 1999.
5
Government said that all the customers whose surface water does not flow into
public sewers should receive a rebate from their bill (and this now happens).
Such a measure is part of the Government’s objective that customer bills
should be transparent and fair, and bills should be broadly in line with the use
made of the different components of the sewerage system, one of which is
surface water drainage.
An additional surface water drainage charge for flood defence would run
counter to the Government’s objectives just stated and would affect some
customers only, those who do not benefit from a surface water rebate from
the sewerage service company.
It would be a tax collected by sewerage undertakers which does not seem
appropriate and by definition would increase bills (which are regulated by
Ofwat).
Sewerage undertakers are not well placed to collect taxes on behalf of
Government because they do not have the information relevant to benefit
claimants or hardship cases which the proper administration of a tax system
requires. Water and sewerage charges are relatively blunt instruments which
are not suited to tax collection.
We believe these are good reasons not to levy such a charge.
However you also state in this section that “run-off is considered to contribute
negligibly to the overall need for the construction of flood defences”.
However as we explain above in the section on SUDs run-off and the systems
used to manage it can contribute to localised flooding and sewer flooding and
should be considered as part of the responsibility of the new institutional
arrangements.
We would be happy to provide any additional comments or clarification you
need.
Yours sincerely
Pamela Taylor
Direct line 020 7344 1800
Direct fax 020 7344 1853
E-mail ptaylor@water.org.uk
Website www.water.org.uk