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Advice to Environment Agency

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Enquiry

From
Environment Agency
Date advice given
1 February 2011
Enquiry type
Phone

The role of the IPC under the Water Framework Directive and the sequential and exception tests under PPS25

Advice given

  1. Water Framework Directive - the 'competent authority' and role of the IPC

The Environment Agency (the Agency) is the competent authority in England and Wales for the purposes of the Water Framework Directive (the Directive), in conjunction with (as necessary) the Secretary of State (for DEFRA) and the Welsh Assembly. The Water Environment (Water Framework Directive) (England and Wales) Regulations 2003/3242 (the Regulations), implements (in part) the Directive. Under the Regulations, 'competent authority' is not a defined term. Regulation 3(1) requires that the Secretary of State, the Welsh Assembly and the Agency must exercise their relevant functions so as to secure compliance with the requirements of the Directive.

The IPC is a 'public body' for the purposes of the Regulations, as defined under Regulation 2, which include those bodies 'created or continued in existence by public general Act of Parliament'. The responsibilities of such bodies include, under Regulation 19(1) are that 'A public body must, on being requested to do so by the Agency, provide the Agency with such information in its possession or under its control and such assistance as the Agency may reasonably seek in connection with the exercise of any of the Agency's functions under these Regulations'.

The Agency has defined 'relevant functions' under the Regulations for carrying out the requirements of the Directive. As noted above, these relevant functions are carried out in conjunction with “the appropriate authority”. Under the Regulations “the appropriate authority” means– (a) in relation to a river basin district that is wholly in England, the Secretary of State; (b) in relation to a river basin district that is wholly in Wales, the Assembly; and (c) in relation to a river basin district that is partly in England and partly in Wales, the Secretary of State and the Assembly acting jointly; The appropriate authority also has defined relevant functions under the Regulations. For example, the approval of River Basin Management Plans, prepared by the Agency, is the responsibility of the appropriate authority.

  1. Flood Risk Assessment and the Sequential and Exceptions Tests - Obligations on Applicants

Regulation 5(2)(e) of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 requires that a DCO application must be accompanied by any flood risk assessment (FRA).

Where it is necessary to submit a FRA with a DCO application, it is for applicants in the FRA to take into account the Sequential and Exceptions Tests and the vulnerability classification under PPS25. Para. 4.19 of the Practice Guide which accompanies PPS25 makes it clear that the applicant must justify with evidence what area of search has been used when making the application.

The circumstances in which an FRA has to be submitted with a DCO application are set out in all the draft National Policy Statements (NPS), and include applications of 1 hectare or more in Flood Zone 1 and for all proposals in Flood Zones 2 and 3. An FRA will also be required in Flood Zone 1 for projects of less than 1 hectare where there is the risk of flooding from sources other than rivers and the sea, for example from surface water, or where the Agency/Internal Drainage Board indicate that there may be drainage problems.

The minimum requirements for a FRA and the applicability of the Sequential and Exception Tests to the Planning Act 2008 regime are set out in all the draft NPS. The draft NPS state that further guidance on flood risk is given in the Practice Guide which accompanies PPS25, which in turn refers to the relevant paragraphs of PPS25.

Para. 22 of PPS25 states that those proposing development are responsible for (inter alia):-

  • demonstrating that it is consistent with the policies in PPS25
  • providing a FRA.

The Sequential and Exception Tests are set out in Annex D of PPS25 and the assessment of flood risk is dealt with in Annex E. Para. E2 of Annex E of PPS25 states that 'any organisation or person proposing a development must consider whether that development will not add to and where practicable reduce flood risk. The future users of the development must not be placed in danger from flood hazards and should remain safe throughout the lifetime of the…proposed development..'. Para. E3 of Annex E of PPS25 states that the minimum requirements for FRA are that they should (inter alia), when considering the vulnerability of those that could use/occupy a development, take into account the Sequential and Exception Tests and the vulnerability classification.

Flood Risk Assessment and the Sequential and Exceptions Tests - the role of the IPC

It is for the IPC, taking advice from the Agency as appropriate, to consider the extent to which Sequential and Exceptions Tests considerations have been satisfied and if appropriate the exception test has been met, taking into account the particular circumstances in any given case. Para. 4.19 of the Practice Guide which accompanies PPS25 makes it clear that the LPA (or in this case the IPC) would still need be satisfied in all cases that the proposed development is safe and would not lead to increased flood risk elsewhere. The Examining Authority would need to consider these matters during the examination of an application.

If the IPC was the decision maker it would also need to consider these matters before deciding whether or not to grant development consent. The draft NPS state that in determining an application for development consent the IPC should be satisfied where relevant (inter alia) that the application is supported by an FRA and a sequential approach has been applied at the site level to minimise risk by directing the most vulnerable uses to areas of lowest flood risk.

All the draft NPS relating to proposed NSIP project types in England and Wales contain wording that 'the IPC should not consent development in Flood Zone 2 in England or Zone B in Wales unless it is satisfied that the sequential test requirements have been met. It should not consent development in Flood Zone 3 or Zone C in Wales unless it is satisfied that the sequential and exception test requirements have been met'. Those draft NPS that just relate to NSIP project types in England (for example the draft Waste Water NPS) only refer to Flood Zones 2 and 3.