The Government has said it will limit the statutory consultee role for Lead Local Flood Authorities (LLFAs) to major development in relation to surface water drainage - the policy for sustainable drainage systems will be kept under review.

The Government also confirmed that water companies will be made statutory consultees for shale oil and gas planning applications.

The decisions form part of further changes to statutory consultee arrangements for the planning application process for surface water drainage management announced by the Government this week. The changes follow on from the outcome of a recent consultation by the Department for Communities and Local Government which concluded at the end of January.

The consultation had sought views on a package of measures designed to improve the process of statutory consultation on planning applications, including:

A proposal to introduce the Lead Local Flood Authority as a statutory consultee on major planning applications with surface water drainage implications to ensure technical advice is available to local planning authorities.

A proposal to change the thresholds for the Environment Agency’s statutory consultee involvement in a planning application to achieve a more proportionate approach in light of changing responsibilities.

A proposal to make water companies statutory consultees in respect to planning applications for shale oil and gas development.

The proposed changes will now be made by amending the Town and Country Planning (Development Management Procedure) (England) Order 2010.

There was broad agreement among respondents to the consultation that LLFAs are the right body to provide technical advice to local planning authorities on planning applications and should be made a statutory consultee to ensure timely advice is provided.

Where concerns with the proposal were raised, it tended to be focused around whether they would be ready to take on the role from April 2015. This was raised by some county councils and unitary authorities, who hold the Lead Local Flood Authority role, citing the need for sufficient time to prepare for the change, as well as adequate financial resources to set themselves up as a statutory consultee with the required technical expertise.

The response says the Government has considered the requirements on Lead Local Flood Authorities and will be publishing a New Burdens Assessment which will establish the payment required to ensure that Lead Local Flood Authorities will have sufficient financial resources to meet the expectations of a statutory consultee.

In December the Government announced that is strengthening planning policy to expect sustainable drainage systems are provided in new development where it is appropriate with effect from 6 April 2015.

The Government response also acknowledged the important that Internal Drainage Boards play in flood risk and the assistance water companies could provide local planning authorities, in assessing sustainable drainage proposals. However, it considers that the provision of advice from these bodies would best be established through local arrangements rather than being made statutory consultees.

Setting out reasons why the LLFA role should be limited to major development, the Government said is “keen to avoid over-consultation of the Lead Local Flood Authority to ensure that their statutory consultation role is focused on development where they are likely to add the most value.”

However, the response says the Government also plans to examine further the case for expanding the statutory consultation role of Lead Local Flood Authorities, beyond providing advice on surface water drainage, in due course.

Some respondents had separately expressed  their concern about the impact of small development on flood risk, through the cumulative impact of those developments, particularly smaller urban infill sites. Most also explained that a single development in an area of high surface water flood risk can be just as damaging, if not more so, than a much larger development elsewhere.

The Government intends that minor development should be handled through local arrangements and advice.  The expectation is that in the first year of their statutory consultee role the Lead Local Flood Authority will develop standing advice which local planning authorities will be able to reference when assessing minor development applications.

For defined ‘critical drainage areas’ or areas at high risk of flooding from rivers and the sea the Environment Agency will remain a statutory consultee for all development in these areas.

Following on from the consultation the Government also intends to put improved arrangements for consulting the Environment Agency by removing or altering of a number of existing statutory consultation requirements on the Agency.

Increased role for water companies on shale planning applications

An overwhelming 98% of respondents backed the proposal for water companies to be made statutory consultees for shale oil and gas planning applications for the following three key reasons:

It would ensure that water companies are involved early in the planning process so that they can work with shale gas operators to develop solutions to any water-related issues that will work for all stakeholders and satisfy the regulatory duties of water companies;

Statutory inclusion in the planning process would enhance the confidence of the regulators and the public by demonstrating that any impacts of shale gas development on drinking water and drinking water sources will be fully taken into account as part of the decision making process; and

The Water UK and UK Onshore Operators Group (UKOOG) Memorandum of Understanding, while a model of good practice, has no formal legal status and cannot therefore command the same level of public confidence as that which a statutory mechanism would provide in terms of water companies views being considered as part of the decision making process.

The Government intends to focus the requirement to consult water companies on proposals involving hydraulic fracturing given the level of water usage linked to shale oil and gas development – which will be kept under review.

The Government has already announced that it is bringing forward in the Infrastructure Bill a requirement that no well consent can be issued which allows high volume hydraulic fracturing unless the relevant water and sewerage company has been consulted before the grant of planning permission for development involving hydraulic fracturing. 

Click here to read the response in full.

Date for your diary: In partnership with the Environment Agency, the Flood Expo which takes place in London on 14^th and 15th October presents solutions to widespread flooding problems from the UK’s leading flood prevention companies, alongside an extensive seminar and workshop schedule highlighting new, cost-effective ways to prevent and manage floods. Click here for more information.