RURAL AFFAIRS AND ENVIRONMENT COMMITTEE AGENDA. 6th Meeting, 2008 (Session 3) Wednesday 19 March 2008

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1 RAE/S3/08/6/A RURAL AFFAIRS AND ENVIRONMENT COMMITTEE AGENDA 6th Meeting, 2008 (Session 3) Wednesday 19 March 2008 The Committee will meet at am in Committee Room Flooding and flood management inquiry: The Committee will take evidence from Alan Leaman, Director of Corporate Affairs, Association of British Insurers, and Ian Ferguson, Director of Commercial Underwriting Strategy, Norwich Union and then, not before am, from Michael Russell, Minister for Environment, Bob Irvine, Deputy Director Water Industry, and Judith Tracey, Flooding Policy Manager, Scottish Government; and decide whether to consider a draft report in private at future meetings. 2. Rural housing inquiry: The Committee will consider a paper updating it on progress with the inquiry. 3. Subordinate legislation: The Committee will consider the following negative instruments the Water Environment (Diffuse Pollution) (Scotland) Regulations 2008 (SSI 2008/54); the Crofting Counties Agricultural Grants (Scotland) Amendment Scheme 2008 (SSI 2008/58); the Agricultural Processing, Marketing and Co-operation Grants (Scotland) Regulations 2008 (SSI 2008/64); the Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (Scotland) Amendment Regulations 2008 (SSI 2008/65); and the Leader Grants (Scotland) Regulations 2008 (SSI 2008/66).

2 RAE/S3/08/6/A 4. Flooding and flood management inquiry (in private): The Committee will consider the evidence heard earlier in the meeting with a view to identifying preliminary conclusions. Andrew Mylne Clerk to the Committee Room no. T1.01 Tel no andrew.mylne@scottish.parliament.uk The following papers are attached for this meeting: Agenda item 1 Submission by the Association of British Insurers Submission by Norwich Union Correspondence with the Minister for Environment (follow-up to 6 and 19 February and 5 March meetings) Supplementary evidence received following oral evidence Briefing paper by SPICe on flood management in Japan Briefing paper RAE/S3/08/6/1 RAE/S3/08/6/2 RAE/S3/08/6/3 RAE/S3/08/6/4 RAE/S3/08/6/5 RAE/S3/08/6/6 Agenda item 2 Note by the clerks update on inquiry Note of Rural Housing Service conference RAE/S3/08/6/7 RAE/S3/08/6/8 Agenda item 3 The Water Environment (Diffuse Pollution) (Scotland) Regulations 2008 (SSI 2008/54) The Crofting Counties Agricultural Grants (Scotland) Amendment Scheme 2008 (SSI 2008/58 RAE/S3/08/6/9 RAE/S3/08/6/10 (Note: The following EU legislation is relevant: Commission Regulation (EC) No 1975/2006) The Agricultural Processing, Marketing and Co-operation Grants (Scotland) Regulations 2008 (SSI 2008/64) RAE/S3/08/6/11

3 RAE/S3/08/6/A (Note: The following EU legislation is relevant: Commission Regulations (EC) Nos 1290/2005; 1698/2005; 1974/2006 ; and 1975/2006) The Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (Scotland) Amendment Regulations 2008 (SSI 2008/65) RAE/S3/08/6/12 (Note: The following EU legislation is relevant: Commission Directive 2007/73/EC) The Leader Grants (Scotland) Regulations 2008 (SSI 2008/66) (Note: The following EU legislation is relevant: Commission Regulations (EC) Nos 1698/2005; 1974/2006; and 1975/2006) Extracts from Reports by Subordinate Legislation Committee (referring to SSIs 2008/54, 2008/58 and 2008/64) RAE/S3/08/6/13 RAE/S3/08/6/14 The following papers are attached for information: Correspondence with Cabinet Secretary regarding the Crown Estate Note of recent developments within the Committee s remit Minutes of the last meeting RAE/S3/08/6/15 RAE/S3/08/6/16 RAE/S3/08/5/M

4 RURAL AFFAIRS AND ENVIRONMENT COMMITTEE FLOODING AND FLOOD MANAGEMENT INQUIRY RAE/S3/08/6/1 Agenda item 1 SUBMISSION FROM THE ASSOCIATION OF BRITISH INSURERS The Association of British Insurers (ABI) has been working with the Scottish Parliament and the Scottish Government for some time to develop a comprehensive and sustainable flood risk management scheme. We notice that the Scottish flood risk management system is well developed and ahead of most of the existing schemes in the rest of the UK. The proposed Flooding Prevention Bill offers the opportunity to update and replace existing legislation with a new Act that would incorporate all aspects of flood management in Scotland and we welcome the opportunity to respond to this inquiry. The ABI represents nearly 400 member companies, which between them provide 94% of the UK s domestic insurance. It works on behalf of the UK insurance industry to keep standards high and to make its voice heard. The summer floods in the UK this year were a massive event: our member companies dealt with four years' worth of claims in less than two months. The final bill will be around 3bn: a bill which in almost all other European countries would be met by the State, not the private sector. We want to maintain the position across the UK whereby flood insurance is a standard part of household and commercial insurance, but to ensure this happens against the background of climate change and increasing flood risk we think change is vital. In response to the summer floods we have published our report "Summer Floods 2007: Learning the Lessons". The report outlines our proposal for an overall flood risk management policy (A copy of the report is available from the Clerks to the Committee). We are aware that some of our key Lessons Learned recommendations have already been implemented in Scotland, but we have some specific proposals for the Flooding Prevention Bill: We are asking for a 25-year flood strategy based on improved leadership and coordination with overall targets for reducing flood risk. A single Scottish body should be responsible for flood management strategy to replace the current piecemeal approach; a clear definition of the roles of the various bodies involved to establish a Competent Authority with some form of overall responsibility for flood risk management; an investment programme that reflects climate change and the real flood risks from rivers, coasts and drainage; sufficient funding, with clear incentives given to the responsible authorities to achieve the desired flood risk management objectives; freely and widely available flood risk mapping covering all sources of flooding;

5 RAE/S3/08/6/1 Agenda item 1 stronger planning controls to ensure that new developments are not built in high flood-risk areas wherever possible. We feel that there is still little sign of real appetite to break down institutional barriers and create an integrated approach to flood risk management and we encourage both the Scottish Parliament and the Scottish Government to ensure that the Flooding Prevention Bill will not become a missed opportunity to implement the required changes. We also think there are lessons to be learned in preparing for the floods and how to respond, particularly in relation to critical national infrastructure. In the insurance industry, we are looking at ways to encourage wider take up of domestic and commercial insurance, and to disseminate more information to customers about managing flood risk, and dealing with a claim. ABI 20 December 2007

6 About Norwich Union RURAL AFFAIRS AND ENVIRONMENT COMMITTEE FLOODING AND FLOOD MANAGEMENT INQUIRY SUBMISSION FROM NORWICH UNION RAE/S3/08/6/2 Agenda item 1 1. Norwich Union is the UK s largest general insurer with a market share of around 14 per cent. With a focus on insurance for individuals and small businesses, Norwich Union insures one in seven motor vehicles, 15 per cent of UK households, and around 800,000 businesses. Norwich Union is part of Aviva, the world's fifth-largest insurance group. 2. Norwich Union has long played a pro-active role in raising the profile of flooding and its impact on insurance; we have developed a digital flood map to help accurately assess levels of risk at an individual property level, as well as working on the development of the UK s first flood-resilient house in Lowestoft, Suffolk Norwich Union feels that there are certain aspects of the Scottish Government s policy on flood management which already provide a very positive step in the right direction. The decision to place certain duties on local authorities with regard to their flood prevention powers is one that we believe is right; this is something that is not the case in England and Wales, and makes the case for liability very difficult. We have also found that SEPA are reasonably good at communicating with insurers, and were pleased to see the publication of the Scottish Flood Defence Asset Database earlier this year. We believe that this level of transparency encourages an effective approach to flood management. What is the potential impact of climate change on the frequency and severity of all types of flooding in Scotland? 4. It is recognised that the risk of flooding in Scotland will increase due to climate change. There is already evidence that winters have become wetter relative to summers over the last 200 years, and that a larger proportion of winter precipitation now falls on heavy rainfall days than was the case 50 years ago. The latest climate change predictions for the UK, produced by the UK Climate Impacts Programme (UKCIP) are that: a. Winters will become wetter by as much as 20% by b. Summer and autumns will become drier. c. The number of rain-days and the average intensity of rainfall will increase leading to i. More frequent short duration high-intensity rainfall, and 1 In November 2005, Norwich Union launched the UK s first flood resilient demonstration house to show the steps people can take to limit the impact of a flood. As part of Norwich Union and Norfolk County Council s FLOWS project, a Cotman House Association-owned house in Lowesoft, Suffolk, was installed with various flood resilient alterations. Measures installed included replacing vinyl flooring with ceramic tiles, replastering the walls with Limelite Renovating Plaster (to limit the dampness seeping into the walls), and new internal doors, frames and linings to make them easier to remove in the event of a flood. For more information, please visit

7 RAE/S3/08/6/2 Agenda item 1 ii. More frequent periods of long-duration rainfall, as in 2000 d. Average seasonal wind speeds could increase over most of the country, but there is less certainty regarding the potential for greater storminess and consequent increases in sea surges or extreme wave activity on coasts. However with increased temperatures leading to a more energised atmosphere, it is expected that this will occur. e. Sea levels will continue to rise, although in Scotland this will in part be offset by the fact that the land is still rising as a result of the removal of the weight of ice from the last ice-age, there will still be a net overall rise in sea levels. 5. Accordingly, all assessments of flood risk need to assume increased peak rainfall intensities, peak river flows, sea level rise and increased storm surges due to extreme off-shore wind speeds and wave heights over the life time of all buildings and flood defences. 6. Climate change will lead to an increased risk of flooding from all sources river, coastal, surface water and drainage systems. As evidenced from the flooding in England this year, it is no longer adequate to consider the risks of flooding from only rivers and the sea. Urban drainage problems are a significant concern as all of our cities expand and our historical approach to drainage means that more and more water is channelled through drainage systems never designed to cope with the volumes likely to be experienced in the future. What changes are needed to the existing legislation? 7. One body with overall responsibility for all types of flooding: A central body needs to be given overall responsibility for all types of flooding in Scotland, including flooding from drainage systems and surface water. This body needs to coordinate the actions of all other responsible authorities and these authorities must also have a responsibility for cooperating with this central body so that collectively they achieve effective flood risk management. In particular this central body must be given the responsibility for recording the risk of flooding from all sources on maps that are freely available to the public and to insurers. 8. Norwich Union believes that the Scottish Environment Protection Agency should be that central body and that they should also be given a new statutory duty to reduce flood risk. 9. Clear defined responsibilities for flood risk management: The responsibilities of each of the bodies involved in all aspects of flood risk management need to be clearly defined and where flooding occurs as a result of their failure to deliver a defined minimum level of service, they should be responsible for compensating others for damage caused. It is expected that this will be achieved largely through the bodies that currently exist, with the minimum changes necessary to ensure effective flood risk management. The authorities involved need to include the Scottish Environment Protection

8 RAE/S3/08/6/2 Agenda item 1 Agency, Local Authorities, Scottish Water, Highway Authorities and Landowners. 10. In addition, Norwich Union agrees with the current legislation stating that landowners have a significant role to play in managing flood risk. However, it is essential that these responsibilities are clearly defined and communicated to those that need to take action. There needs to be particular guidelines so that people are aware of how they can safely clear and manage culverts, watercourses, drains, etc. 11. Development of a long term, national strategy: Within this framework, the Scottish Government needs to develop a long term strategy that identifies publicly the risk of flooding from all sources now and in the future, identifies what is an acceptable risk level, and puts forward a comprehensive package of policies and funding commitments. 12. The Scottish Government should set a series of targets to reduce flood risk across Scotland, for example by setting a maximum number of households and businesses at high risk of flooding from all sources, with the Government compelled to report on progress in achieving this target annually. 13. The flood risk maps required by the EC Directive to show risk from all forms of flooding should be augmented with forecast maps showing risk levels in 2020, 2050 and 2100 and the Scottish Government should produce a 25-year strategic plan outlining the investment needed to achieve the proposed targets. They should publish detailed interim plans on an annual basis and report on progress along the 25 year strategic plan outlining the planned investment over the following 3 year period and the analysis underpinning these investment and prioritisation decisions. 14. Promotion of other types of flood defence solutions: Traditional flood defences are only part of the solution. Property owners need to be further educated over the role that individual flood resistant and resilient measures can play, and the Scottish Government should include the need for grants towards the cost of measures required as part of the overall funding of flood prevention. 15. A better understanding of the risk of urban flooding: It is essential when looking ahead to the future that we identify the risk that urban flooding poses to Scotland. At present this is largely unknown and is difficult to predict. Such an assessment should be incorporated into the flood risk maps. We also feel that the commonly referred to design standard for drainage systems of protection from a 1 in 30 year event is inadequate and that a higher minimum standard should be set with regard to potential flooding to property. An urgent assessment of the risk of flooding from urban drainage systems should then be made to determine where this new standard is not currently achieved and Scottish Water should then put plans in place to meet the new standard. Where damage to property results from the failure to meet the standard, property owners should be compensated by Scottish Water.

9 RAE/S3/08/6/2 Agenda item Review of essential infrastructure: Flood management needs to be holistic, looking at the problem as a whole and the full economic and social impact. Essential facilities, such as water and power works, dams and reservoirs, need to be adequately defended. 17. We also feel that there is a need to reform the Common Agricultural Policy so that farmers can be funded for contributions to water catchment management and attenuation and temporary storage measures for rivers and urban drainage systems. This should thereby aim to reduce peak run-off and enable a gradual release of rainwater. Who should be responsible for flood management and how should it be funded? 18. Flood management needs to be centrally controlled by one single body having overall control for all types of flooding. This should ensure that the Scottish flood risk is adequately managed, with appropriate resources being directed to those areas most in need. It is essential that flood management is seen dealt with in a holistic manner, irrespective of the type of flooding. 19. Local authorities have a significant role to play and we would advocate a system in which flood defence management is led by a national body, with local subsidiaries providing local knowledge and support. 20. Flood management should be funded by the Scottish Government; with an appropriate allocation of funds for all types of flooding and all flood risk management activities, with a prioritisation process that must overcome both the difficulties of having different local government boundaries from the natural river catchment boundaries, and also the need for local delivery by the many different bodies involved to be aligned to the needs of the local communities. 21. All bodies involved must be adequately incentivised to manage their activities in a way that contributes to effective and sustainable flood risk management. Funding needs to be allocated fairly, directly relating to the flood risk posed, and the economic and social value of directing flood defence spending to particular areas. This criteria needs to be clear and concise, so that people are well aware of why the funding decisions are made. 22. There should also be consideration for the introduction of providing grants for individuals wishing to install flood resilient/resistant measures in both their homes and businesses. What role should sustainable flood management play in mitigating the effects of flooding? 23. A sustainable flood management approach should always be taken so that the need for and cost of engineered flood defensive measures is minimised. However, they cannot provide a complete solution and in many areas engineered solutions are still required.

10 RAE/S3/08/6/2 Agenda item Additionally, sustainable flood management approaches need to be managed on an ongoing basis. Drainage ditches, channels and areas for storing flood water need to be maintained so that they function effectively in times of flooding. This must be allowed for in allocating responsibilities and funding. What role can land-use management, the planning system and building regulations play in mitigating the effects of flooding? 25. Land-use management, the planning system and building regulations all have a huge role to play in mitigating the effects of flooding. We must recognise that the national flood defence management spend will never be enough and it is therefore essential that we discover new, inventive solutions to combat the threat of flooding through appropriate use of land. 26. Norwich Union believes that as a rule, building on flood plains should be avoided. However, taking into account future house building targets and the need to provide affordable homes, we concede that it may be necessary in certain areas. Building on a flood plain is not a problem, if that development is securely defended and buildings are resilient to damage by flooding. If this is the case, developers must be required to incorporate appropriate flood protection measures in the original designs, to manage the water on and off the site to a given level of risk. It is also important that business developments are also given the same consideration and do not go ahead if inappropriate. 27. There is a need for government to work with the construction industry to assess the resilience and reparability of new innovative construction techniques on resilience to flood and other perils. Building regulations need to be changed to ensure that new buildings are sustainable. However it is important that levels of fire resilience are not compromised it has been recently reported that we may be in danger of modifying buildings to resist water damage in ways which inadvertently increase the fire loads. 28. It is essential that planning regulations are adhered to it is important that inappropriate developments, which have a significant risk of flooding, do not go ahead. If planning authorities approve planning applications against the advice of the Scottish Environment Protection Agency and/or Scottish Water on the grounds of flood risk, the government should review the application and if it is to proceed, publish a summary explaining the reasons for this. 29. Areas within cities need to be allocated for water storage during periods of flooding so that maximum use can be made of sustainable urban drainage systems. These areas can be used at other times for recreational purposes. 30. We also feel that Scottish Water should be able to charge new developments for access to the water and sewerage network to cover the costs of upgrades required in response to the increased demands on it.

11 RAE/S3/08/6/2 Agenda item 1 Are there any improvements needed to existing flood warning systems? 31. It is important that all people who could be affected register for flood warnings. To achieve this flood warning systems should be changed from an opt in to an opt out approach for properties in high risk areas to further increase uptake of this service. How effective are the responses to flooding events? 32. In addition to recent experiences in Scotland, we can also learn a great deal from the devastating floods experienced in England and Wales in 2007, than from recent experiences in Scotland, although we recognise that it may not all be directly relevant. More detail is provided in a report produced recently by the Association of British Insurers (ABI) - Summer Floods 2007: Learning the Lessons The Scottish Government needs to ensure that the country is much better prepared for floods, in particular on how to identify and protect critical infrastructure and other key sites at a local level and how to promote appropriate insurance protection, especially among small businesses. There needs to be an urgent risk assessment of those properties, businesses and critical infrastructure at high risk of flooding and an assessment of pro-active measures to ensure the most vulnerable people and social and economic functions are given additional protection, 34. The Scottish Government needs to ensure that the emergency services, Local Authorities and the Scottish Environment Protection Agency are able to respond to such events even more effectively and that there is one body accountable for overseeing and coordinating the response effort including implementation of protocols to bring in assistance of non-statutory partners, such as insurers and loss-adjusters. 35. Although insurance companies are proud of their response to the summer floods, our own evidence suggests that some improvements are possible. There is potential for providing better information to customers about what to do if they are unfortunate enough to be affected by flooding; what the repair process involves and how long it takes; and to ensure that customers are provided with clear and concise key information about their claim. We will be discussing with key support groups such as the National Flood Forum, how to improve the information that is provided to customers on these issues. Norwich Union 14 February

12 RURAL AFFAIRS AND ENVIRONMENT COMMITTEE RAE/S3/08/6/3 Agenda item 1 FLOODING AND FLOOD MANAGEMENT INQUIRY: CORRESPONDENCE WITH MINISTER FOR ENVIRONMENT LETTER FROM MINISTER FOR ENVIRONMENT (FOLLOW-UP TO 6 FEBRUARY MEETING) Thank you for your letter of 8 February about a number of issues which were raised as a result of discussions during the third evidence session of the Rural Affairs and Environment Committee s Flooding Inquiry. I was interested to note the consensus among the participants of the discussions that the catchment was the appropriate unit for flood management and that Scottish Environment Protection Agency should take a lead role in flood management at a catchment level. I am glad to note that these views broadly reflect our proposals put forward in the public consultation on The Future of Flood Risk Management in Scotland, which is now underway. The consultation also seeks views on the structures and processes that need to be put in place to ensure that the best interests of the whole catchment are met. I was most interested in your identification of the important roles of the planning system and land management practices in a holistic approach to flood management, with which I agree. You also expressed concern about the connection between planning and land management practices. I also share these concerns. As part of the Government s consultation, we are asking for views on our proposals to establish stakeholder fora to ensure that the preparation and implementation of plans to manage flood risk involve full and continuing consultation and discussion with those affected including land managers. I welcome your suggestion that the Scottish Government could commission research into the effectiveness of soft solutions available for flood management. My officials are currently working with the Flood Risk Assessment and Mapping (FRAM) working group to develop a research programme which will identify the contribution that land management measures, and forestry in particular, can make to sustainable flood management. Finally, you have raised your concern that there is currently no systematic monitoring of the extension of hard surfaces and the impact of run off from these surfaces on the drainage system. In the consultation, we are also seeking views on the proposed contents of Flood Risk Management Plans and welcome any suggestions which will ensure the plans are fit for purpose. Michael Russell MSP Minister for Environment 6 March Circulated in paper RAE/S3/08/4/11 1

13 LETTER FROM MINISTER FOR ENVIRONMENT (FOLLOW-UP TO 19 FEBRUARY MEETING) RAE/S3/08/6/3 Agenda item 1 Thank you for your letter of 22 February about the issues raised as a result of discussions during the fourth evidence session of the Rural Affairs and Environment Committee s Flooding Inquiry in Elgin. I fully agree that conducting flood management at a catchment level is going to be challenging but it is clearly the way forward. As you will be aware funding for flooding has been transferred to the local government settlement and the Government is clear that this is the correct way to proceed. We are looking to local authorities to identify the priority to be given to flood protection locally. I understand why you suggest that the 3 year funding package may be too short, but it is the nature of Government funding that this has to be the case. However the process of flood risk management planning which we are proposing will identify, in a more consistent and comprehensive form than at present, longer term requirements which can be addressed through successive spending reviews. You have also made reference to the possibility of local outcome agreements applying on a catchment basis. Local Authorities are currently in the process of preparing their draft Single Outcome Agreements (SOAs) which they will share with the Scottish Government by 1 April The expectation is that agreement will be reached for all SOAs by the end of June Local Authorities may wish to reflect their commitment to addressing flooding issues in those agreements. I was interested to note that there was universal agreement from your witnesses that the current approvals process for flood prevention schemes needs to be streamlined. I agree the current process for approval of flood prevention schemes needs to be reviewed and this is a key part of our present consultation.. As you have highlighted, the deemed planning consent system is a possible approach to improving the present process for flood prevention orders and we are seeking views on this and an alternative model relying wholly on a local authority process as part of our consultation. I note from your letter that unlike in your previous evidence sessions there were mixed views regarding SEPA taking lead responsibility for strategic flood management. As you will be aware from previous correspondence, this is one of the proposals put forward in the public consultation on The Future of Flood Risk Management in Scotland. We think the case for this is strong, but I welcome all views on this issue and look forward to receiving alternative suggestions for consideration. In paragraph 6 you identify a need for a more proactive approach to providing information and advice to the public, about who is responsible for flood management, about the actions individuals can take to protect themselves and their property and what their responsibilities are in the event of flooding. This is particularly important in ensuring that a modern approach to flood risk management is achieved. We want to move away from a one dimensional approach and will introduce new measures to provide a portfolio of responses, including flood warning 2 Circulated in paper RAE/S3/08/5/13 2

14 RAE/S3/08/6/3 Agenda item 1 and flood awareness. To manage flood risk effectively we need to make better information available to the public and to the responsible authorities on the risk and consequences of flooding from rivers, the sea and groundwater. I hope your evidence session with SEPA provided you with further information on how we are approaching this important task. I would be happy to discuss this further with the Committee when I appear on 19 March. Thank you for bringing to my attention the views of local businesses from Elgin on the damage caused to the reputation of Elgin as a place to invest as a result of flooding. I agree that investment in appropriate flood prevention measures will consolidate investments made to promote economic development where there is a risk of flooding. This point was also made to me by a business in Galston when I saw the scheme under construction there to announce the consultation on our proposals for The Future of Flood Risk Management in Scotland. So I am pleased to have approved flood prevention schemes in Bo ness, Broxburn, Forres, Renfrew, Rothes, Saltcoats which will give confidence to businesses to invest in these places. Finally, thank you for the suggestion that prospective house purchasers should be provided with information on a property s flood risk by either the builders or vendors. Once we have undertaken the preliminary flood risk assessments, prepared flood hazard and flood risk maps and developed flood risk management plans as required by the EC Directive on the Assessment and Management of Flood Risks, there should be sufficiently robust data available for this purpose. Michael Russell MSP Minister for Environment 6 March 2008 LETTER FROM CONVENER (FOLLOW-UP TO 5 MARCH MEETING) The Committee held its penultimate evidence session in its flooding and flood management inquiry yesterday. The Committee devoted the majority of the meeting to oral evidence from the Scottish Environment Protection Agency. On this occasion, there were no specific points arising from the oral evidence that the Committee wished to draw to your attention at this stage but we would commend to you SEPA s written submission, a copy of which is attached. I look forward to our evidence session with you on Wednesday 19 March. I note your suggestion of a further session after the end of the Scottish Government s consultation on its legislative proposals. I will reflect on this suggestion and discuss with members of the Committee. Roseanna Cunningham MSP Convener 6 March

15 RURAL AFFAIRS AND ENVIRONMENT COMMITTEE FLOODING AND FLOOD MANAGEMENT INQUIRY SUPPLEMENTARY EVIDENCE RAE/S3/08/6/4 Agenda item 1 Several witnesses who have appeared before the Committee during the course of the inquiry have provided some supplementary evidence clarifying points raised/questions asked during their evidence session. Below is all supplementary evidence received to date. PROFESSOR DAVID CRICHTON (23 JANUARY 2008) The convener yesterday kindly invited me to write about any additional information relevant to the inquiry which might be helpful. I have one item which I did not mention during my oral evidence because I did not want to make it too complex. It concerns the flood defence for the Firth of Forth. It should be borne in mind that such a flood defence can be used not just for storm surge or pollution events, it could also be used to mitigate upstream river flooding during heavy rainfall or snowmelt (or indeed dambreak). In winter 2002/3 the Thames Barrier in London was used on a record 14 consecutive tides to help to alleviate fluvial flooding in the Thames catchment, when flows in the Thames reached their third-highest value. The barrier is raised at low tide in order to stop high tide water entering the Basin. This creates an enormous storage capacity to allow river water to escape into the basin. This can then be released at the next low tide. The River Hull Barrier was used in a similar way in June High river flows are much more likely than a major storm surge, and a high tide can cause fluvial flood waters to "back up" the river causing flooding well upstream, perhaps as far as Stirling. Scottish Water evidence I was a little puzzled by the discussions about what sounded to me like "fluvial flood maps". Scottish Water said there weren't any, but of course the SEPA flood maps are for fluvial and coastal floods. I wonder if there was perhaps some confusion between "fluvial" and "pluvial" and would be interested to know what your minutes show. 1 Certainly there are no pluvial maps as far as I know, and they would be almost impossible to create without detailed information about drainage systems, information which Scottish Water refuses to release (if they have it at all). Professor David Crichton 24 January Note by the Clerk: The Official Report of this part of Scottish Waters evidence (cols 437-9) records only reference to pluvial rather than fluvial. It is part of Official Report editorial policy normally to correct minor mis-statements where the context makes it clear what was intended. 1

16 RAE/S3/08/6/4 Agenda item 1 SCOTTISH WATER (23 JANUARY 2008) When requested, Scottish Water shares information about our dams with category 1 responders, under the Civil Contingencies Act Category 1 responders are: Police, Fire & Rescue and Ambulance Services, Maritime and Coastguard Agency, local authorities and SEPA. Scottish Water 11 March 2008 Note from the clerks: This is a followup to a discussion relating to dam breaks (Official Report, 23 January 2008, column 430) Jim Conlin: [ ] think that the requirement is to produce the maps, not to make the maps public. The requirement is to produce maps detailing certain information, including velocities of flow. I believe that those maps will come under the same security requirements and will be shared with, for example, category 1 responders for matters of civil contingencies but will not be made publicly available, but I am not an expert in emergency planning. It is an issue on which we can send the committee a written submission. RONNIE FALCONER (CIWEM) (6 FEBRUARY 2008) Following a point made by Mike Donaghy (WWF Scotland) at the round table meeting of 6 February 2008, Mr Falconer would like this point to be made in response (See Official Report, 6 February, column 478) I think that the full provisions of PPS25 need to be covered in context. Ronnie Falconer, CIWEM 7 March 2008 SCOTTISH ENVIRONMENT LINK (6 FEBRUARY 2008) LINK Freshwater Task Force welcomes this opportunity to provide further evidence to the Rural Affairs and Environment Committee for its Flooding and Flood Management Inquiry. Some issues arose during the oral evidence session [the roundtable session on 6 February], and we would like to provide additional information with regard to: o Natural flood management techniques and the role of natural habitats in storing and slowing down the flow of water o Provide further evidence of the current practices of building on floodplains Natural flood management and the role of natural aquatic habitats in storing and slowing down the flow of water It is now widely accepted that natural flood management (NFM) is an important component of a sustainable approach to flood management. Whilst sustainable flood management has been extensively discussed and developed in Scotland, (and 2

17 RAE/S3/08/6/4 Agenda item 1 it is now understood to be a holistic, integrated and catchment-based approach), natural flood management is a relatively new theme, largely aimed at dealing with the causes of flooding not just the effects, and therefore may not be as well understood. It is about identifying where the flood processes arise in the whole catchment, from source to the sea, and then reducing the flood risk by restoring, enhancing and protecting the natural environments underpinned by those processes. Many important freshwater and upland habitats and the processes supporting them have been lost or degraded. Agricultural and forestry land use have had the greatest impact on these habitats, mainly due to drainage for increased agricultural and timber production. River regulation, straightening and widening for flood protection, and other purposes, have led to the loss of natural processes and biodiversity. All of these factors are known to known to have contributed to the risk of flooding that we experience today, and this situation is likely to get worse due to climate change. By restoring natural water and land processes, natural flood management techniques can; in addition to many other benefits such as increased biodiversity, water quality and amenity; directly contribute to reducing flood risk to people and property further downstream. This means looking at opportunities to restore processes supporting habitats in the upper (where action is most easily targeted), middle and lower reaches of catchments. In upland areas, it is likely that former bogs would require restoration, native woodland could provide hydraulic roughness on smooth slopes, grazing could be managed in such a way as to promote more tree regeneration, gullies could be replanted and sediments could be allowed to build up behind large woody debris in the burns. In middle reaches, lowland wetlands should be restored, farmers could be supported to allow flood plains to function normally, and grants could be awarded for lining appropriate areas with riparian woodland to create leaky barriers and thus slow flow from the flood plain back to the river. In the lower reaches, space has to be given for the river to go where it needs to go. NFM includes a combination of measures designed to suit the circumstances within a particular catchment at risk of flooding. The Scottish Rural Development Programme (SRDP) has an important role to play in providing financial assistance towards appropriate land management and the restoration of natural environments in high flood risk areas. SRDP currently includes some management options that will go some way towards achieving the aims of NFM, but further measures and funding will be needed once we have improved our understanding of the implementation of NFM. The Inquiry Committee is already aware of the work done by WWF, RSPB and others in Scotland on developing natural flood management and sustainable flood management. Some experience already exists elsewhere in the UK and in Europe where a more natural approach has been used as a means of achieving flood reductions through working to restore natural processes. Generally, these have not taken a fully catchment approach, but are excellent examples of the multi-beneficial approach to flooding and restoration. Scotland leads the way in developing and implementing that approach within sustainable flood management. 3

18 RAE/S3/08/6/4 Agenda item 1 In this submission, we have included two examples from Europe. However, our current knowledge is not limited to these two examples, and further information is available on request. a) Middle Elbe restoration project, Germany The restoration of floodwater retention areas along the floodplain of the river Elbe is part of a large-scale flood risk policy in Germany. It includes several projects at various stages of implementation, the largest being the realignment of flood embankments in the Middle Elbe floodplain to re-establish 600ha of formal natural floodplain to act as a floodwater storage area. The project includes the restoration of native woodland, reconnection of formal river channels and oxbow lakes with the main river. The project will increase the biodiversity value of the area, as well as provide flood benefit to local communities. The project is funded by the German Federal Agency for Nature Conservation. b) Lacha River, Poland This completed project involved the restoration of a small river and associated wetlands. The Lacha river is a small tributary of the river Barycz. In the early 20 th century, the river was straightened and deepened and floodplains were drained for agricultural production. The river canalisation resulted in increased flooding downstream. The main aim of the project was to increase the floodwater retention capacity and to restore wetland habitats and wet meadows. It included land purchase from Agricultural Property Agency and private owners. A biomass energy heating facility was established in a nearby school utilising the biomass removed from the meadows. The project had a range of benefits for biodiversity, local communities and flood protection. In 2001 when the big floods in Europe occurred, the floodwater retention area significantly reduced the flood peak. Further evidence of the current practices of building on floodplains Scottish Environment LINK has made enquiries into several new-build projects on flood plains in Scotland since the introduction of SPP7 and PAN 69. Each of the projects examined had been in the planning process prior to the introduction of the guidance and advice. Therefore, since they were not subject to the new instruments, the projects continued unabated. Scottish Environment Link 10 March 2008 SCOTTISH ENVIRONMENT PROTECTION AGENCY (5 MARCH 2008) Following up on the final question which we failed to answer please see a brief explanation of what we wrote in our written submission under section 7 - How effective are responses to flooding events? From SEPA s written submission Para 7.5 Consideration should be given to identifying a body with responsibility for enforcing mitigation measures to address any significant flood risks that have 4

19 RAE/S3/08/6/4 Agenda item 1 been identified as part of the risk assessments carried out under the Civil Contingencies Act. Followup Under The Civil Contingencies Act the Strategic Coordinating Groups (SCG's) carry out risk assessments based on various civil contingency scale flooding "disasters", identify where these may occur and include them in community risk registers. Flood risks identified through this process should be linked to any catchment flood management planning process. The need to identify a responsible body for this was to ensure that risks identified through the CCA risk assessment process were integrated into any other risk assessment process that any new flooding legislation brings about. All about linking up. From SEPA s written submission Para 7.6 Planning for smaller flood events - i.e. events not covered by the Civil Contingencies Act are developed under the initiative of the bodies involved, usually Local Authorities or the Police. A new framework, for instance national guidance standards, would help support planning and implementation of flood responses in these situations Followup This is about ensuring that a process exists for linking organisations in response to flood events; something that civil contingencies covers quite well for larger events. We feel there is no formal process in place for ensuring all flooding partners work together in response to smaller flood events that fall below the threshold for a civil contingencies or mutual aid type response but still require a multi-agency response. SEPA 5 March

20 RURAL AFFAIRS AND ENVIRONMENT COMMITTEE FLOODING AND FLOOD MANAGEMENT INQUIRY FLOODING POLICY IN JAPAN: NOTE BY SPICE RAE/S3/08/6/5 Agenda item 1 The Committee asked for some further information on Japanese flood management policy, and this is provided in this short note. In a paper given to an international workshop on flood management Takeuchi (2001) explained the significant change in Japanese flood management policy made in The catalyst for the change was the Naka River and Kokubu River floods of 1998 and the Fukuoka floods of Having been the responsibility of the Ministry of Construction for more than 50 years, responsibility for flood defences was passed to a newly created Ministry of Land and Transport from 1 January The main shift was to accept the need to live with flooding - acknowledging that some flooding would occur in urban areas, from a policy of trying to defend all urban areas against floods. This was because of recognition that the increasing risk of flooding and rising damages could not be managed by flood defences alone, especially as a result of climate change. The Japanese Meteorological Service has recorded a doubling of heavy rainfall events (with more than 100mm falling in an hour) over the last 20 years. The revised Japanese policy has many of the features which have been described to the Committee as encapsulating sustainable flood management. The emphasis has shifted from confining rivers within their banks with the use of walls and levees, to catchment scale management, considering the flows of water through catchments as a whole. This does not mean that the policy of building flood defences has been abandoned this remains an important plank of Japanese policy. The new policy also includes measures to improve resilience to flooding such as making buildings more resilient to flooding; zoning areas of flood risk; and raising awareness of flood risk with flood hazard maps. The strategy also recognises that different regions of Japan will require different types of response because of differences in the environment, the settlement pattern and in economic and social structures. Takeuchi (2001) also presents data on flood defence expenditure and damages caused by flooding from the 1880s up to For most of this period, the amount of damage done by flooding exceeded the amount spent on flood defence. Since the late 1960s, this relation has reversed, and by the 1990s spending on flood defences exceeded damages by a factor of 4. Takeuchi explains that this led the costs and benefits of the previous flood management policy to be called into question. A joint statement by the UK and Japanese Governments on cooperation in flood management issued in 2006 said that flooding caused average annual damage of $6 billion in Japan compared to $1 billion in the UK. Under the Japanese policy, river catchments are categorised into 3 types of area: 1. Areas where rain falls, but which are not at risk of flooding. Retention of water is promoted in these areas. There is a policy of taking flood storage schemes into 1

21 RAE/S3/08/6/5 Agenda item 1 public ownership. Release from detention reservoirs etc. is coordinated across the river basin. 2. Flood plain where human activities exist. These areas are subdivided into 3 potential responses as follows: Extensive flood plains where floods cover a large area if they occur levees are the main protection system used, together with land use and building regulation. Narrow flood plains where there is no space for a levee system ring dykes (walls around settlements) and land raising and flood proof building are used. Floodplains which have experienced extensive flooding in areas not suited to the use of defences, land use regulation, replacement of existing buildings with new buildings and resilience measures for new buildings are used. 3. Urban areas. As well as protection from flood defences, measures have been introduced to increase resilience to flooding. Operation of drainage systems and sewers is controlled to avoid increasing the flow in the main stream. Underground areas such as metros, underground shops are made flood proof, as are lifelines (power, water, sewage, communications and transport systems). Hazard maps are well disseminated. Evacuation routes and evacuation centres are publicised. Public are advised to store emergency foods. Temporary flood defences such as sandbags are prepared and maintained. Tom Edwards SPICe 5/3/08 Sources British Embassy Japan. (2006) UK Japan Bilateral Workshop on Flooding and Coastal defences. Joint statement. [Online]. Available at: London Climate Change Partnership. (2006) Adapting to Climate Change: Lessons for London. [Online]. Available at: Takeuchi, K (2001) Flood management in Japan from rivers to basin. p in Non Structural measures for water management problems. Proceedings of the International Workshop of the International Hydrological Programme. Paris: UNESCO. Available at: 2

22 RAE/S3/08/7/17 Agenda item 6 RURAL AFFAIRS AND ENVIRONMENT COMMITTEE FLOODING AND FLOOD MANAGEMENT Introduction 1. This paper highlights a number of key issues that have emerged during the course of the Committee s inquiry on flooding and flood management. In order to give the clerks a steer on the general line to take in finalising the text of the first draft report, it would be helpful if the Committee could consider the following issues. Issues 2. Assuming that the Committee agrees that the catchment is most appropriate unit for flood management, it would be helpful to get the Committee s views on 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) 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 3. The European Flooding Directive demands that a competent authority for flood risk management be appointed. The Scottish Government s consultation document on its proposed legislation suggests SEPA takes on this role. does the Committee agree that SEPA takes on the role or should some other body perform the role? should SEPA have any additional powers to compel other bodies to take actions in pursuit of effective flood management or should it continue to use a partnership working approach 4. There has been considerable discussion about the role of natural flood management techniques as being a component of sustainable flood management. It has been suggested that there should be a duty (probably as part of the catchment management plan development process) to consider natural flood management, or is this unnecessary?

23 RAE/S3/08/7/17 Agenda item 6 5. 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, in its consultation document, two alternative models to streamlining this system: one relies on Ministerial approval carrying deemed planning consent for a flood prevention schemes (thus removing the planning permission stage) 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?

24 RURAL AFFAIRS AND ENVIRONMENT COMMITTEE Rural Housing Inquiry update on progress RAE/S3/08/6/7 Agenda item 2 Background 1. At its meeting on 9 January, the Committee agreed the remit for its inquiry (based on feedback from the Aviemore seminar in December). A call for evidence was launched a few days later, with a closing date for submissions of Friday 4 April. 2. Also on 9 January, the Committee agreed in principle to hold a meeting outside Edinburgh for the purpose of taking oral evidence, and to undertake fact-finding visits as part of the inquiry. 3. The Committee agreed to ask the Scottish Parliament Information Centre (SPICe) to provide information about local authorities statutory obligations to provide housing for homeless people; comparative information on rural housing in Ireland and other countries of similar size and geography to Scotland; and suggestions for any further research that might usefully be undertaken in connection with the inquiry. 4. Finally, it was agreed to ask local authorities for data about the numbers of rural inhabitants who are homeless or otherwise have unmet housing need. 5. This paper updates the Committee on progress since then, and invites it to take some decisions about visits, an external meeting and initial oral witnesses. 6. A separate paper contains a report from the Rural Housing Service s annual conference on 29 February, which the Convener attended in the capacity of Committee reporter. Visits 7. It is proposed that there should be three fact-finding visits in connection with the inquiry, each involving perhaps 3 or 4 Committee members (supported by clerking and SPICe staff). The following visits are proposed: East Lothian (13 May) This is an accessible rural area with the highest housing pressure in Scotland (measured by the ratio of people on the waiting list and the number of new lets available each year). The visit would involve meetings with East Lothian Council staff and a tour (hosted by the local housing association) of smaller villages that exemplify some of the difficulties of finding locations for new housing, together with a promising new development of eco-housing. Arran (20 May) Although large by reference to many other island communities, and relatively accessible, Arran s ferry connections make it unrealistic to commute to the mainland on a daily basis. Although average household incomes are relatively low, house prices are very high, partly as a result of Arran s attractiveness for holiday/second homes (accounting for a 1

25 TP PT RAE/S3/08/6/7 Agenda item 2 1 quarter of all houses on the island) and hence out of reach to most locals.tpf FPT A local action group (Housing Initiative for Arran Residents) cites numerous examples of local people who have jobs on the island and wish to live there, but who cannot obtain suitable accommodation. The visit will also involve discussions with officials from North Ayrshire Council, Arran Community Council and Isle of Arran Homes. Kinloch Rannoch and Pitlochry area (6 or 20 May) This visit aims to identify some of the issues that arise in more remote mainland rural areas. Kinloch Rannoch is a relatively inaccessible community where the housing market has been affected by holiday homes. The day will also include a visit to the Atholl Estate near Pitlochry to see a range of small-scale housing developments. SPICe information 8. The various bits of information requested from SPICe are in preparation, and should be ready for the first oral evidence session in the inquiry. SPICe has not at this stage identified any further issues on which additional research is required. Local authority data 9. The Convener wrote to all local authorities (bar the 4 city authorities) in January asking for information, relating to rural parts of the council s area, on: the tenure profile of housing the extent of unmet housing need the nature of that unmet housing need (according to types and tenures of properties) levels of homelessness (including estimates of the hidden homeless ) levels of second home- and holiday home-ownership numbers of empty properties. Councils were also asked to explain the definition of rural that they use in connection with this data. 10. The responses that have been received are available on the inquiry page: HTUlinkUTH. SPICe will provide in due course a short summary of key points arising from this information. Written evidence 11. Written submissions so far received are also available on the inquiry page: HTUlinkUTH. Oral evidence 12. As noted above, the call for evidence closes on 4 April. The next two committee meetings (on 16 and 30 April) will involve oral evidence on the pig 1 The median house price in 2005 was 182,000 (compared with 108,000 across Scotland), while the median household income in 2005 was 27,600. 2

26 RAE/S3/08/6/7 Agenda item 2 industry (16 April) and consideration of a draft report on flooding (both dates). It is therefore unlikely that there will be time for more than a single witness panel on 30 April. 13. That leaves four further meetings before the summer recess (14 and 28 May, 11 and 25 June), which can be used for oral evidence-taking. This is unlikely to be enough, given the broad scope of the inquiry and given also the need to protect some time at those meetings for other business (subordinate legislation, an EU update and a work programme discussion on 25 June, plus other items that may arise). As a result, it is suggested that oral evidence should continue into September, with a view to consideration of a draft report later in the autumn. 14. The Committee will wish to assess the written evidence received before taking final decisions about all of the witnesses to invite to give oral evidence. However, it would be useful to secure agreement now on a few key stakeholders who could be invited to give oral evidence on 30 April or in May, so that these can be arranged in good time. 15. The following are proposed: Scottish Federation of Housing Associations Homes for Scotland Rural Housing Service Scottish Rural Property and Business Association an academic panel (likely to involve Madhu Satsangi of Stirling University and Prof John Bryden of the University of the Highlands and Islands) External meeting 16. When options for visits were being explored, consideration was given to combining one of the visits with an external committee meeting. However, it was difficult to identify suitable venues for such a meeting in the areas to be visited, and the practical logistics for members would have been complex (requiring significant travelling and/or overnight stays for at least some members). 17. It is therefore now proposed to detach the external meeting from the visits, and arrange the external meeting as the Committee s first meeting in September, as a means of re-focussing work on the inquiry after the summer recess. 18. At this stage, members are invited to give preliminary consideration to possible venues for the external meeting. Suggestions should be made to the clerks in the first instance. It is expected that a final decision will need to be taken in May to enable the necessary budgetary authority to be sought from the Conveners Group before the summer recess. 3

27 RURAL AFFAIRS AND ENVIRONMENT COMMITTEE Rural Housing Inquiry Rural Housing Service annual conference RAE/S3/08/6/8 Agenda item 2 Background 1. At its 5 December meeting, the Committee appointed the Convener as a reporter on rural housing for the purpose of attending the Rural Housing Service s annual conference on 29 February, in Birnam (Dunkeld). 2. The Clerk to the Committee, Andrew Mylne, and Kate Berry from the Parliament s information centre (SPICe) also attended. There were around 125 delegates in total, mostly from local authorities and national park authorities, housing associations, housebuilders, NGOs and universities. The Rural Housing Service 3. The Rural Housing Service is a national charity which helps rural communities to develop practical solutions to local housing problems. It provides advice and information on housing issues and aims to help communities create new housing opportunities for local people. Structure of the conference 4. The day began with an introduction by Raymond Young, Convener of the Rural Housing Service, in which he outlined the organisation s response to the Scottish Government s consultation paper, Firm Foundations. 1 This was followed by a keynote speech by Stewart Maxwell MSP, Minister for Communities and Sport. 5. The second half of the morning consisted of five parallel workshop sessions on: rural housing enablers increasing rural housing opportunities alternative housing providers private sector affordable housing 2012 homelessness targets the impact on rural housing new rural settlements the Tornagrain Development (Moray) planning for housing the SPP 3 review followed by a presentation by Kate Braithwaite, Director of the Rural Community Development Programme of the Carnegie UK Trust. 6. After lunch, there was a panel discussion (chaired by Raymond Young) on delivering affordable rural housing, featuring 1 Available on the RHS website: 1

28 Brian Gegan, Chair, Scottish Federation of Housing Associations RAE/S3/08/6/8 Agenda item 2 Allan Lundmark, Director of Planning and Communications, Homes for Scotland Peter Lee, Chief Executive of Eildon Housing Association Susan Torrance, Chief Executive, Highland Housing Alliance. Keynote speech Stewart Maxwell MSP, Minister for Communities and Sport 7. The Minister said there was a fundamental rural focus in Scottish Government policy, and that improving housing was critical to the aim of improving economic performance. It was no longer sustainable simply to increase levels of subsidy to provide social housing; instead there was a need to look at a range of mechanisms to increase supply across a balance of tenures. A related aim was to promote shorter and more focused local housing strategies that delivered results more effectively. 8. Significant reforms to the planning system were planned. The second National Planning Framework was an important part of the process; there were also consultations under way on SPP 3 (planning for housing) and SPP 15 (planning for rural development). There was evidence this guidance was being inconsistently applied at present, and sometimes not used as intended. 9. The Scottish Government had already set up the Housing Supply Task Force, chaired by the Minister, in order to identify and remove obstacles to making land available for housing. It had also introduced the Scottish Sustainable Communities Initiative to encourage local authority proposals for innovative and sustainable developments and announced in Firm Foundations the target of increasing new housing supply to 35,000 units a year. 10. One of the ideas promoted by Firm Foundations was the abolition of the Right To Buy for new homes. At present, RTB sales could lead to whole communities becoming owner-occupied, with the result that young people are forced to leave to find somewhere to live. Until RTB was abolished for new homes, he encouraged local authorities to apply for pressured area status to ease the problem in areas of high housing demand. 11. Another initiative was the Low-cost Initiative for First-time Buyers (LIFT) to assist people trying to buy their first home. 12. The budget allocated 1.2 billion for affordable housing over the next 3 years, and one of the key aims of that spending was to ensure that Scotland met the target of abolishing priority need for homeless people by In order to make best use of subsidy for housebuilding, the aim was to identify lead developers while safeguarding the position of smaller housing associations. The competitive element being introduced would take account of the higher costs involved in developing housing in smaller, more rural communities. 2

29 RAE/S3/08/6/8 Agenda item Other initiatives included a landlord accreditation system to share best practice; use of the golden share mechanism where landlords would retain a 20% stake in shared equity housing, and developing standards for the unplugged house suitable for building in remoter areas where connection to mains infrastructure was impractical. 14. The Minister also announced a pilot scheme, involving 5 million, to secure additional housing from private landlords in pressured areas. This scheme had been developed with the cooperation of the Scottish Rural Property and Business Association. 15. The Minister stressed that he was working closely with Richard Lochhead and Mike Russell to ensure that housing policy took full account of the needs of rural areas. Workshop 2012 homelessness target 16. Alastair Cameron, Chief Executive of Scottish Churches Housing Action, began by outlining policy towards homelessness over the last decade or so, beginning with the Conservatives Rough Sleepers Initiative in After devolution, Wendy Alexander identified homelessness as a key topic and established the Homelessness Task Force in This was innovative because it went beyond government agencies and directly involved organisations such as Shelter. The Task Force produced its first report in 2000, which influenced provisions in the Housing (Scotland) Act The Task Force s final report in 2002 recommended 2012 as the target for abolishing priority need. This and other Task Force recommendations were given statutory force in the Homelessness (Scotland) Act 2003 (which is not yet fully in force). 17. Homeless applications are on a rising trend, and the problem is becoming more visible, with frequent re-applications (often within 12 months). Only a third of applicants are re-housed under the homelessness legislation. The most recent figures ( ) showed 56,275 households made up of 94,781 people defined as homeless (1 in 54), 31% of them aged under 16. The most common causes of homelessness are: loss of accommodation with friends and relatives 36% disputes within the household 23% loss of a private sector tenancy 8% harassment, violence, unsafe environment 7% discharged from hospital or prison 6% 18. There are currently three main tests that must be applied to people presenting as homeless: are you homeless (according to the statutory definition)? 3

30 RAE/S3/08/6/8 Agenda item 2 are you in priority need (does the household include children or the elderly, are you homeless as a result of fire or flood, are you in a vulnerable group?) are you intentionally homeless? Local authorities may also investigate whether a homeless applicant has a local connection to the area or is at risk of violence. 19. Since the 2003 Act, the main changes have been the introduction of a requirement for all homeless applicants to be given temporary accommodation while their claims are investigated; the commencement of section 5 of the 2001 Act, obliging housing associations to help meet local authority homeless obligations; and broader categories of priority need. 20. By 2012, the idea is that the definitions of priority will be broadened to encompass all those who present as unintentionally homeless, so that priority is effectively abolished. There should also be extra support for those who are intentionally homeless. A power to suspend the local connection provisions will also be available. The big question for 2012 is where the extra affordable homes will come from. 21. Gavin Corbett of Shelter then outlined progress towards meeting the 2012 target. He said that 2009 had been set as an interim date, with the aim by then of reducing the number of non-priority applications by 50% compared with the baseline. 22. As at : 3 local authorities had already achieved the 2009 target 7 were on target to achieve it 14 were moving in the right direction, but not fast enough to achieve it 7 were moving in the wrong direction. The authorities with most to do were mostly rural, but there was no overall clear-cut urban/rural distinction. 23. Angus Council had decided to move straight to the 2012 target in a single step, by abolishing all priority need criteria. 24. There was also widespread variation in the level of housing pressure on local authorities attributable to addressing the needs of homeless people (i.e. the % of lets that would have to go to homeless applicants to meet targets): 4 local authorities face above 90% pressure 3 face pressure between 70% and 90% 11 faced pressure between 50 and 70% 4

31 RAE/S3/08/6/8 Agenda item 2 14 face pressure below 50%. 25. Shelter believed that action was needed on two main fronts. The first was to provide more homes council houses, lets by registered social landlords (20% of whose lets currently go to homeless people) and private landlords. The changes to the Right To Buy would help, as would changes to planning law to facilitate new affordable developments. 26. The second area was about preventing homelessness, by addressing evictions (through s.11 of the 2001 Act, not yet in force), mortgage repossessions, changes to housing benefit, housing support and increasing housing options. In rural areas, there were particular land and planning issues; providing new housing where it was most needed was made more difficult by the lack of economies of scale (developers usually favoured larger developments of around 24 units, whereas communities might only need a handful of units to address their housing need); and it was often more difficult to provide choices and a range of options within small communities. In terms of building affordable homes, local authorities needed to refuse the easy options (commuted sums, for example) and insist on securing a 25% quota in the first phase of new developments. 27. A further problem was the level of hidden homelessness. There were, for example, some people who didn t present as homeless but were in fact relying for accommodation on friends and relatives. One reason for not making a formal application was a perception of stigma and the fear of losing control to an impersonal bureaucratic process. Workshop Alternative Housing Providers 28. The workshop was delivered by staff from Smiths Gore, who manage approximately 640 rented rural residential properties in Scotland, and facilitated by a staff member from the SRPBA. 29. Smiths Gore outlined the important role of private sector rented housing in Scotland s rural areas. Traditionally the sector has been characterised by service occupancy agreements, agricultural tied tenancies, farmhouses and fair rent properties. Housing has been provided by private landlords with very little subsidy 99% of funds for delivery of rented housing is directed at housing associations. 30. Currently there is a range of grant mechanisms available that private sector property owners can make use of. The Rural Empty Property Grant, managed by Communities Scotland, allows property owners to refurbish or convert the properties they own. Funding of up to one third of the capital costs can be provided. There is a 5-10 year tie in period and the properties must be let at below market rent. There have been a relatively small number of these grants made and Smiths Gore are trying to facilitate an increase in their use. 31. Some local authorities operate a residential leasing scheme, where property owners lease their properties directly to the council, which then takes on management of the property including the allocation process. Although 5

32 RAE/S3/08/6/8 Agenda item 2 property owners will be guaranteed a continuous rent it will be below the market value. 32. Local authorities throughout Scotland run private sector housing grant schemes aimed at improving the quality of private sector housing in their area. There are certain types of work where mandatory grant must be provided (e.g. where properties are subject to a statutory repairs notice) but in all other cases the payment of grant is discretionary and will to a large extent be dependent on available resources and local policy. 33. Smiths Gore argued that there were gaps in provision. None of the above mechanisms allow grant assistance for new build property. There is also no provision for shared equity in the private sector. 34. Earlier in the conference the Minister announced the pilot New Build for Rent Scheme. The purpose of this scheme is to enable private landowners to access public funding to develop affordable rural housing. Over 3 years 5m will be made available. The SRPBA had supported the development of the scheme. 35. Any rural landowner, including community buy out groups, will be able to apply for a grant under the scheme, subject to eligibility. The properties must stay for a minimum of 30 years in the affordable rented sector, landlords must operate a model allocations policy and they must sign up to the new national landlord accreditation scheme operated by the SRPBA and the Scottish Association of Landlords (SAL), which is expected to be launched in Spring The rents charged will also need to be in line with local RSLs. Grants will probably be limited to 55% of total development costs up to a maximum of 60, A number of potential advantages to the scheme were highlighted. It will facilitate developments in areas where RSLs may not be interested in developing, keep and attract a rural workforce and, because the grant applicants already own the land, there will be no subsidy required for land purchase costs (unlike some developments by RSLs). 37. The planning context was also discussed. Planning Advice Note 74 advises that local authorities should consider a benchmark of 25% of new developments as affordable (where there is evidence of need). Higher percentages may be applied in exceptional circumstances. In urban areas onsite provision of above 20 units is recommended but in rural areas lower thresholds may be applied. There are variations in planning policies throughout Scotland. 38. Discussion then moved to the role of private landowners in the provision of rural housing and how existing mechanisms could be improved. Various views were expressed on the New Build for Rent Scheme. A number of participants were supportive of the proposals. One local authority representative said that the scheme made use of best available properties but was concerned that it should be properly demonstrated that housing need was being met. 6

33 RAE/S3/08/6/8 Agenda item The issue of housing quality of the new properties that would be built with the grant was raised. It was thought to be important that standards were maintained and that grant levels would support the use of local labour and materials. There are number of good design guides in circulation such as those produced by Argyll and Bute Council and there are already examples of good design in rural areas e.g. in Albyn Housing Association. 40. The tie in period of the grant to 30 years was discussed. For one landowner with a small estate the 30 year tie in was thought to be daunting and possibly too long, although it was pointed out that the property could be sold within that period if the conditions of grant repayment were met. On the other hand, one local authority representative was concerned that a 30 year tie in period might not be long enough had a concern about what rent levels would be after the 30 year period. 41. Some participants in the workshop wanted to ensure that the houses built under the scheme could be allocated to local residents. Aberdeenshire Council has undertaken work in its area that shows that in many cases those who are on waiting lists for housing, and those who have been rehoused in smaller rural communities, are in fact those who have local connections to the area. Kate Braithwaite Carnegie UK Trust 42. From an English perspective, this was seen to be an exciting time to be involved in rural development in Scotland. The Carnegie UK Trust had identified rural development as a major issue 5 years ago, and set up a commission of 26 people to conduct a major exercise of listening and evidence-gathering. This had led to a charter for rural communities), identifying all the things that contribute to dynamic, vibrant and sustainable rural communities. The exemplars were communities that demonstrated their own leadership ability and had effective mechanisms for local action planning. 43. The key was to identify the assets that a community had (rather than focusing negatively on what it lacked). These could be financial, social or individual skills/assets as well as land, property or infrastructure assets. In terms of housing, a range of provision was needed both for rent and purchase, and this could involve either new provision or the retro-fitting of run-down existing properties. Community land trusts were also valuable as they kept land I community ownership in the long term and encouraged local governance. It was also important to provide appropriate infrastructure to ensure communities would be resilient in the face of future trends through energy-efficiency and local power generation, for example, or through broadband connections. 44. An example of a development that had contributed to a local community was Sycamore Hall in Bainbridge, North Yorkshire, which accommodated mostly single elderly people, many with mobility problems. The individual apartments gave residents a lot of autonomy, but there were also various communal facilities (including a restaurant, hairdressers and surgery) many of which were open to the public. This enabled local people and visitors to benefit from the facilities, while also fostering contact between residents and the wider community. Another example was a villa family model from France which 7

34 RAE/S3/08/6/8 Agenda item 2 consisted of two family homes on either side of a flat for an older, single person, in which the families were expected to assist the older person with meals and check on their welfare regularly, in return for some subsidy for their own accommodation. Squaring the Circle panel discussion 45. Brian Gegan (SFHA) said that the average Scottish house now cost around 6 times the average salary a crisis of affordability. In this context, it was important to address the stigma associated with the rented sector, which was a product of an obsession with owner-occupation. His main concern was to ensure that the expertise and experience of rural housing associations was not lost. In looking at the Scottish Government s approach, as laid out in Firm Foundations, he saw four main issues (each of which involved some unanswered questions. 46. The first was land, the raw material for housing associations. Promised reforms of planning law were welcome, but would take at least five years to make a difference; and changes in how existing law was applied were therefore needed to deliver change more quickly. In particular, he wanted a performance management approach to be adopted, so that decisions to grant planning permission were followed up and land re-categorised if developments are not actually built within a reasonable period. 47. A second issue was procurement. It was unclear how the new emphasis on competition, and the role of lead developers, would work in the absence of regional planning structures. 48. In relation to housing association grant (HAG), the Minister had said the current situation was unsustainable because the amount of subsidy had risen by 35% with only 2% more houses delivered. But this reflected the higher costs housing associations were facing, and if they now have to borrow more money at market rates, their costs will simply rise further. 49. A final issue was infrastructure, where he wanted to see a rolling fund that would enable housing associations to get funds up front to pay for infrastructure connections and then pay that back over the lifetime of the development. 50. He also raised a concern about the supply of skilled labour that would be required if the Scottish Government s target of 35,000 new homes a year was to be met. 51. Allan Lundmark (Homes for Scotland) said the problem was not a shortage of land, but a shortage of land that planners are prepared to make available. He had heard a local authority planning officer candidly admit that they didn t want to release the generous supply of land recommended by SPP 3 because developers would simply take the best sites the unspoken implication being that developments should be on second-rate sites. Developments have to create sufficient added value to pay for themselves in other words, they must capture an uplift in land value. Part of the problem is 8

35 RAE/S3/08/6/8 Agenda item 2 that local authorities only make available land that is already high-value, where that uplift is therefore harder to achieve. 52. Action was needed on a number of fronts. The planning system needed to work much more quickly; more land needed to be made available; and further progress was needed to establish high standards of sustainability (to give housebuilders an assurance that energy-efficient equipment and materials would prove reliable in the longer term). He saw potential for more prefabricated homes (which could be very energy-efficient), allowing rapid construction on-site, while allowing the client to adapt the internal layout according to preference. There was also potential for more self-build in some areas. 53. He questioned why local authorities didn t have local equivalents of the Scottish Government s Housing Supply Task Force. 54. Peter Lee (Eildon Housing Association) described the joint working that was taking place in the Borders between the Council and four RSLs. The Borders had an area of 1,800 square miles and an ageing population of 106,000 people. There were no council houses, but the 4 RSLs had around 12,000 units (a quarter of the total housing stock). 55. The RSLs were working effectively together they had a common housing register, and worked with the Council on its Strategic Housing Investment Plan. They also had close links with the building industry and a cooperative relationship with Scottish Water. The community planning process was vital, and the Council also provided land (including some sites for nothing). 56. In the Borders, the aim was to double the supply of housing, working with local developers, and aiming for A-rated energy efficiency levels. Scottish Borders Council has established its own affordable housing task force. 57. Susan Torrance (Highland Housing Alliance) said that HHA was a proactive, land-banking development company, jointly owned by Highland Council, two trusts and local RSLs, but which acted like a private developer. It has a fund of 10 million (jointly from Highland Council and Communities Scotland) which it used to buy and bank land for development. It had worked on developments ranging in size from 5 to 300 units. 58. The Highlands were seen as a last wilderness area, valued for its scenery and wildlife, but the challenge was to keep communities sustainable by providing houses for people wanting to live and work there. Wages were low, but living costs (as a result of remoteness) were high. There was also a sense of conflict between established locals and incomers in terms of competing for housing. For HHA, the key was innovative and varied developments, based on consultation with local communities. There was potential, for example, in newgeneration timber-framed houses which had a standardised layout but with exteriors customisable to fit into local styles and planning requirements. HHA could also promote cross-subsidy, both within individual developments and between sites, to promote the provision of affordable units. 9

36 RAE/S3/08/6/8 Agenda item At the end of the discussion, the panel were asked to identify one thing that could be done within the current system. Susan Torrance referred to zoning more land for housing (and de-zoning land that hadn t been developed). Allan Lundmark agreed the key was making more land available. Peter Lee spoke of using lead developers who were local and had a track record, and moving away from purchase costs to consideration of whole-life costs of developments. Brian Gegan wanted to see political accountability for increasing the supply of affordable homes, improving on the current division of responsibility among various agencies. 10

37 RAE/S3/08/6/9 Agenda item 3 SSI DESIGNATION FORM SSI Title & No: Responsible Minister The Water Environment (Diffuse Pollution) (Scotland) Regulations 2008 (SSI 2008/54) Michael Russell, Minister for the Environment Standing Order Affirmative (a) Negative (b) (c) Other NL NP Lead Committee Purpose of Instrument Rural Affairs and Environment Other Committee These Regulations, made under sections 20 and 36(3) of, and schedule 2 to, the Water Environment and Water Services (Scotland) Act 2003 (asp 3), make amendments to the Water Environment (Controlled Activities) (Scotland) Regulations 2005 (S.S.I. 2005/348) (CAR) and to the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2003 (S.S.I. 2003/531) (SSAFO). Laid Date 21 February day date 12 March st SLC Meeting 26 February day date 16 April 2008 Lead Committee Report Due 14 April 2008 Other Committee Report Due SE Contact Francis Brewis, Committee Contact Andrew Mylne, 85240

38 SSI DESIGNATION FORM RAE/S3/08/6/10 Agenda item 3 SSI Title & No: Responsible Minister The Crofting Counties Agricultural Grants (Scotland) Amendment Scheme 2008 (SSI 2008/58) Michael Russell, Minister for the Environment Standing Order Affirmative (a) Negative (b) (c) Other NL NP Lead Committee Purpose of Instrument Rural Affairs and Environment Other Committee This scheme enables Scottish Ministers to make grants to crofters and certain occupiers of land in the crofting counties (a) in respect of specified operations carried out by them for the purpose of aiding and developing agricultural production on crofts or holdings; and (b) in respect of contributions made by them under such arrangements as are referred to in section 47 of the Roads (Scotland) Act 1984 towards the expenses of providing cattle grids for the aforementioned purpose. Laid Date 22 February day date 13 March st SLC Meeting 4 March day date 17 April 2008 Lead Committee Report Due 14 April 2008 Other Committee Report Due SE Contact Gerry Selkirk, Committee Contact Andrew Mylne, 85240

39 RAE/S3/08/6/11 Agenda item 3 SSI DESIGNATION FORM SSI Title & No: Responsible Minister The Agricultural Processing, Marketing and Co-operation Grants (Scotland) Regulations 2008 (SSI 2008/64) Richard Lochhead, Cabinet Secretary for Rural Affairs and the Environment Standing Order Lead Committee Affirmative Rural Affairs and Environment (a) Negative (b) (c) Other NL NP Other Committee Purpose of Instrument These Regulations introduce measures to supplement Council Regulation (EC) No. 1698/2005 ( the Council Regulation ) which lays down general rules governing Community support for rural development, financed by the European Agricultural Fund for Rural Development established by Council Regulation (EC) No. 1290/2005. They also implement Article 74(1) of the Council Regulation and Article 9(1) of Council Regulation (EC) No. 1290/2005 (O.J. No. L 209, , p.1.), which require Member States to adopt legislative and administrative provisions to ensure that the Community s financial interests in relation to expenditure on rural development are effectively protected. Laid Date 28 February day date 19 March st SLC Meeting 4 March day date 23 April 2008 Lead Committee Report Due 21 April 2008 Other Committee Report Due SE Contact Mark Nicoll, Committee Contact Andrew Mylne, 85240

40 RAE/S3/08/6/12 Agenda item 3 SSI DESIGNATION FORM SSI Title & No: Responsible Minister The Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (Scotland) Amendment Regulations 2008 (SSI 2008/65) Richard Lochhead, Cabinet Secretary for Rural Affairs and the Environment Standing Order Lead Committee Affirmative Rural Affairs and Environment (a) Negative (b) (c) Other NL NP Other Committee Purpose of Instrument These Regulations implement Commission Directive 2007/73/EC (O.J. No L 329, , p.40). The Regulations substitute or insert maximum residue levels for the pesticides Acetamiprid, Deltamathrin, Imazalil, Indoxacarb, Pendimethalin, Pymetrozine, Pyraclostrobin, Thiacloprid and Trifloxystrobin. Laid Date 29 February day date 20 March st SLC Meeting 11 March day date 24 April 2008 Lead Committee Report Due 21 April 2008 Other Committee Report Due SE Contact Mary Lourie, Committee Contact Andrew Mylne, 85240

41 SSI DESIGNATION FORM RAE/S3/08/6/13 Agenda item 3 SSI Title & No: Responsible Minister The Leader Grants (Scotland) Regulations 2008 (SSI 2008/66) Richard Lochhead, Cabinet Secretary for Rural Affairs and the Environment Standing Order Lead Committee Affirmative Rural Affairs and Environment (a) Negative (b) (c) Other NL NP Other Committee Purpose of Instrument These Regulations make provision for the implementation of Council Regulation (EC) No.1698/2005 on support for rural development from the European Agricultural Fund for Rural Development and Commission Regulations (EC) Nos. 1974/2006 and 1975/2006 laying down detailed rules for the application of Council Regulation No 1698/2005. The instrument provides for LEADER funding being made available by the Scottish Ministers from the Scotland Rural Development Programme to local action groups. Laid Date 29 February day date 20 March st SLC Meeting 11 March day date 24 April 2008 Lead Committee Report Due 21 April 2008 Other Committee Report Due SE Contact Ian Matheson, Committee Contact Andrew Mylne, 85240

42 RURAL AFFAIRS AND ENVIRONMENT COMMITTEE RAE/S3/08/6/14 Agenda item 3 Subordinate Legislation: reports by the Subordinate Legislation Committee The Subordinate Legislation Committee (SLC) has reported, in its 10th and 11th Reports 2008, on three of the five negative instruments under consideration by the Committee at this meeting. The SLC has no comments or recommendations to make on SSI 2008/65 and is awaiting a response from the Scottish Government in relation to SSI 2008/66. The extracts from the SLC reports commenting on the three other instruments (but excluding the appendices referred to) are set out below: Extract from 10th Report, 2008 The Water Environment (Diffuse Pollution) (Scotland) Regulations 2008 (SSI 2008/54) 31. The Committee considered this instrument at its meeting on 26th February and asked the Scottish Government for an explanation of the following Given that (a) the Regulations are stated as being part of the Scottish Government's programme of measures to enable it to fulfil its requirements as regards Scotland under the Water Framework Directive (Directive 2000/60/EC); but (b) the Government has not provided a transposition note and neither the explanatory note nor the executive note explain how the Regulations contribute towards that objective, the Scottish Government is asked to provide such an explanation and, in particular, to explain how the Regulations fulfil or contribute to the requirement to specify basic and supplementary measures required for diffuse sources liable to cause pollution set out in article 11.3(h) of the Directive and comply with the requirements of article 10.2(c). 32. The Scottish Government s response is reproduced at Appendix The Committee finds the Government s response only of partial assistance in explaining how the Regulations contribute towards compliance with the Directive. The Committee is required in terms of its remit to assess whether regulations made by the Scottish Ministers comply with Community law. 34. Article 10.2(h) of the Directive provides that Member States shall ensure the establishment for each river basin district within its territory of a programme of measures in order to achieve the environmental objectives specified in article 4 and requires certain controls to be established in relation to diffuse sources liable to cause pollution. Article 11 also imposes a duty to establish a programme of measures including certain basic measures to control the input of pollution from diffuse sources. In its response, the Government explained that the amendments to the Water Environment (Controlled Activities) (Scotland) Regulations 2005 ( CAR ) amend the General Binding Rules ( GBRs ) which are a form of prior authorisation in terms of article 11.3(h) and that the requirements set out in the GBRs are compatible 1

43 RAE/S3/08/6/14 Agenda item 3 with article 10.2(c) of the Directive. However, the Committee notes that there is no explanation as to how the requirements of article 11.3(h) or article 10.2(c) of the Directive are met. Similarly, in relation to the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2003 ( SSAFO ), the Committee notes that the Government simply asserts that it considers the amendments made to SSAFO are compatible with article 10.2(c) of the Directive. 35. The Government s position is that this instrument contributes towards compliance with the Water Framework Directive. However, the Government has not explained to the Committee whether or how these regulations fulfil or contribute to the specific requirements set out in article 10.2(c) which apply to diffuse pollution. 36. The Committee notes that compliance with the requirements of Article 10.2(c) is required by no later than December 2012 and the Government requires to publish a river basin management plan including a programme of measures no later than December In the circumstances where the deadline for compliance with the Community law has not yet been reached, the Committee considers that the impact of these Regulations cannot mean that they are incompatible with Community law in these respects (because that obligation is not yet in force). 37. Whilst the Committee notes the instrument is not incompatible with the requirements of Community law identified by the Committee as the relevant obligations are not yet in force, the Committee found the Government s response to be of only partial assistance in explaining how these Regulations contribute towards compliance with the Water Framework Directive. The Committee draws this instrument to the attention of Parliament and the lead committee therefore on the grounds that a response was sought from and provided by the Government with which it is partially satisfied. Extract from 11th Report, 2008 The Crofting Counties Agricultural Grants (Scotland) Amendment Scheme 2008 (SSI 2008/58) 13. The Committee considered this instrument on 4 March and asked the Scottish Government (a) to comment on the vires of the use of section 2(2) of the European Communities Act 1972 to make a scheme which itself makes amendments to both an existing scheme and existing regulations and what it considers the effect of using this form of statutory instrument to amend a different form of statutory instrument is; and (b) to explain what decision of the Scottish Ministers is intended to be subject to appeal by virtue of new regulation 4(t)(ii) of the 2004 Regulations in relation to paragraph 6(5) of the 2006 scheme given that that paragraph provides directly for deductions of a prescribed amount to be made in prescribed circumstances all of which are a mandatory requirement of the administration of rural development support in terms of Article 31.1 of Commission Regulation 1975/ The Scottish Government s response is reproduced at Appendix 3. 2

44 RAE/S3/08/6/14 Agenda item 3 Point (a) 15. This instrument amends the Crofting Counties Agricultural Grants (Scotland) Scheme 2006 and also amends the Agricultural Subsidies (Appeals) (Scotland) Regulations The Committee notes that the instrument is titled and cited by paragraph 1 as a scheme, but it purports within that scheme to amend the 2004 Regulations which are not in the nature of a scheme, but are regulations. 16. The Committee considered that it was doubtful whether it was within the vires of the enabling powers to combine amendments to two different types of statutory instrument to create a form of hybrid. Accordingly, it asked the Government to comment on the vires of their approach. 17. The Scottish Government admits that to combine different forms of instrument is unusual practice and it appears to indicate in its response that it does not intend to depart from normal practice in the future. The Committee notes that the Government has not provided any justification for having departed from normal practice of making separate amendments in the appropriate form in this case The Committee also notes that the response provided by the Government does not provide any analysis of the issue in point justifying its conclusion that the instrument is valid and within the enabling powers. 18. While there are certain technical objections to combining forms of instrument, such as the title, enabling powers and citation only being capable of referring to one of the component parts, the Committee s main concern is the more fundamental issue of vires. 19. The Committee has considered the enabling power used to make this instrument and whether it permits the combination of amendments to a scheme and to regulations in a hybrid form of instrument. 20. The Committee notes that section 2(2) of the 1972 Act has recently been amended by the Legislative and Regulatory Reform Act 2006 in order to permit that power to be used to make orders, rules, regulations or schemes. The Committee considers that the natural reading of section 2(2) in listing the various forms of instrument which can be made using it conjoined with or is that these are to be understood as alternatives. The Committee consider this natural reading to be supported by analysis of the rationale behind the amendments made by the 2006 Act and by the general principles that statutory instruments should take a single form as described in the parent Act. The Committee notes it is a matter of normal drafting practice that combinations of forms of instrument are not used (hence the need to amend section 2(2) by the 2006 Act in order to facilitate its combination with domestic enabling powers which take the form of rules or schemes). 21. The Committee considers that if it were intended that section 2(2) were to contradict this principle by permitting a combination of forms within a single instrument, then this would have been clearly expressed. No argument is put forward by the Government as to why such a conclusion could be implied from the terms of section 2(2). 22. The Committee therefore does not consider that the enabling power can be read so as to make schemes and regulations in combination to create a hybrid form of 3

45 RAE/S3/08/6/14 Agenda item 3 instrument as this instrument purports to do. The Committee considers that this is not appropriate in terms of general principles, nor is it consistent with the terms of section 2(2) which require the Scottish Ministers to determine which form of instrument they are making when exercising the power from the alternative options provided in the parent Act. The Committee concludes therefore that there is a doubt as to whether the instrument is intra vires. Point (b) 23. The Committee sought clarification from the Government of the decision which is to be subject to appeal in respect of paragraph 6(5) of the scheme. It was not immediately apparent to the Committee what discretion or determination was available to Ministers given that paragraph 6(5) provides for a fixed reduction in grant in a particular set of circumstances as required by Community law. 24. The Government s response has helpfully clarified for the Committee that in the context of applying the mandatory requirements of Community law in the reduction of grants in particular circumstances, claimants are to be entitled to appeal determinations made by Ministers as to the level of eligible grant and whether or not the inclusion of ineligible amounts was intentional. While this is not stated on the face of paragraph 6(5), the Committee believes that a court would strive to interpret the availability of a right of appeal broadly so as to include such matters. It therefore accepts the Government s explanation. 25. The Committee draws this instrument to the attention of the lead committee and Parliament on the grounds that in relation to point (a), there appears to be a doubt whether it is intra vires. 26. In relation to point (b) the Committee draws this instrument to the attention of the lead committee and Parliament on the basis that a response was sought from and provided by the Government with which it is satisfied. Extract from 11th Report, 2008 The Agricultural Processing, Marketing and Co-operation Grants (Scotland) Regulations 2008 (SSI 2008/64) 27. The Committee considered these Regulations at its meeting on 4 March 2008 and asked the Scottish Government to explain (a) why it is considered that regulation 7(2) is within the enabling powers to make the Regulations under the European Communities Act 1972 ( the Act ), given that (i) paragraph (1)(c) of Schedule 2 to the Act provides that the powers conferred by section 2(2) of the Act shall not include power to confer any power to legislate by means of orders, rules, regulations or other subordinate instrument (other than rules of procedure for any court or tribunal); and (ii) it appears that regulation 7(2) delegates or subordinates powers to the Scottish Ministers to issue provisions in guidance which they must have regard to (particularly) so far as they set out rules to assess 4

46 RAE/S3/08/6/14 Agenda item 3 the costs, and the proportion of costs, which may be supported by grant awarded under the Regulations. (b) whether a word is missing at the start of regulation 9(4)(f) and, if so, whether that word is (for example) may or shall. 28. The Scottish Government s response is reproduced at Appendix 4. Point (a) 29. The Government s response indicates that it considers the power conferred by regulation 7(1) to publish guidance to which the Scottish Ministers must have regard by virtue of regulation 7(2) is not a power to legislate. The Government considers it to be a power to give direction as to matters of administration which is specifically permitted by paragraph 1(2) of Schedule 2 to the 1972 Act. 30. The Committee does not consider that the use of the expression guidance is conclusive in determining that regulation 7 amounts to a power to give directions as to administration. It notes that guidance can, if mandatory, prescribe that particular action is to be taken and therefore could be regulatory or legislative in character. However, the Committee notes that the content of the guidance in this particular case is restricted by regulation 7(1). While the Government has not provided any detailed analysis of the permitted subject matter of the guidance in its response, the Committee considers that it could be argued that the restricted nature of the content of the guidance points to the power being limited in scope to matters concerning the administration of the grant scheme and the overall conduct of Ministers within the limitations prescribed in the Regulations. 31. Accordingly, the Committee acknowledges that there are arguments which can be put forward in this case that the power to issue guidance which requires to be followed by Ministers is equivalent to a power to issue directions as to administrative matters, and therefore within the vires of the enabling power. The Committee is therefore satisfied with the Government s response on this point. Point (b) 32. The Scottish Government has acknowledged that the word may is missing from the start of regulation 9(4)(f). Regulation 9(4) sets out both powers which authorised persons are intended to be able to exercise, and places duties on other persons to take certain actions. The Government argues that it is reasonably clear that regulation 9(4)(f) is intended to be a power, but acknowledges that this would benefit from clarification. It intends to correct this omission at a suitable opportunity. 33. The Committee notes that regulation 12(2) makes it a criminal offence for any person to obstruct an authorised person in the exercise of powers under regulation 9. The Committee considers it important that the circumstances in which a contravention can give rise to criminal sanction are clearly and unambiguously described. It also takes the view that it would be a reasonable construction of regulation 9, considered as a whole, that it is intended to permit authorised persons to exercise the activities set out in sub-paragraph (4)(f). 34. Nevertheless, the Committee is of the view that as criminal penalties are to be construed more strictly, the powers in regulation 9 which attract a sanction in the 5

47 RAE/S3/08/6/14 Agenda item 3 event of obstruction should be clearly expressed. It considers therefore, that there is a doubt as to whether it would be possible to enforce regulation 12 as regards any obstruction of regulation 9(4)(f), and that the defect in regulation 9(4)(f) may be such as to affect the operation of the Regulations. 35. In relation to point (a), the Committee draws this instrument to the attention of the lead committee and Parliament on the grounds that a response was sought from and provided by the Scottish Government, with which it is satisfied. 36. In relation to point (b), the Committee draws these Regulations to the attention of the lead committee and Parliament on the grounds that regulation 9(4)(f) contains an error such as could affect the operation of the instrument, which has been acknowledged by the Government and which it has undertaken to correct at a suitable opportunity. 6

48 RURAL AFFAIRS AND ENVIRONMENT COMMITTEE RAE/S3/08/6/15 For information THE CROWN ESTATE: CORRESPONDENCE WITH CABINET SECRETARY LETTER FROM CONVENER I write with reference to the letter from Ian Grant, Chairman and Scottish Commissioner of the Crown Estate, to you of 11 January, seeking an explanation of why the Crown Estate was not invited to be a member of the Sustainable Seas Task Force. As you know, this letter was copied to the Committee clerk for information and subsequently circulated to the Committee for information (as paper RAE/S3/08/2/12). Given the Committee s recent scrutiny of the Crown Estate, which included consideration of its role in marine policy, members would also be interested to know the answer to Mr Grant s question. I would therefore be grateful if you could now send me a copy of your reply to him. Roseanna Cunningham MSP Convener 22 February 2008 REPLY BY CABINET SECRETARY Thank you for your letter dated 22 February requesting a copy of my response to Mr Grant, Scottish Commissioner of The Crown Estate, regarding membership of the Sustainable Seas Task Force. I am pleased to enclose a copy of my response in which I address Mr Grant s concerns and invite The Crown Estate to be a member of the Task Force. Richard Lochhead MSP Cabinet Secretary for Rural Affairs and the Environment 10 March 2008 Attachment: Cabinet Secretary letter to Chairman of the Crown Estate Thank you for your letter dated 11 January 2008 concerning the membership of the Sustainable Seas Task Force. We discussed membership at the first plenary meeting of the Task Force on 23 January. The Crown Estate was identified as one of the organisations with a valuable contribution to make. Since the plenary discussion, I understand that my officials have contacted Dr Carolyn Heeps, Head of Policy and Sustainable Development, to make arrangements for attendance at the various workshops. Paul Bancks attended the first workshop on the 30 January on Licensing and Enforcement and attendance at the remaining workshops is being confirmed. I would be happy for you to represent the Crown Estate at the final plenary meeting on 9th April. 1

49 RAE/S3/08/6/15 For information I hope that this is satisfactory and I look forward to the expertise which The Crown Estate can bring to the table. Richard Lochhead, MSP 12 February

50 RAE/S3/08/6/16 For information RURAL AFFAIRS AND ENVIRONMENT COMMITTEE RECENT DEVELOPMENTS WITHIN THE COMMITTEE S REMIT Note by the Clerk: Each time an agenda and papers for a meeting are circulated to members, a short paper like this one will also be included as a means of alerting members to relevant documents of general interest which they can follow up through the links included. Reports Scottish Natural Heritage has published a report (available at df) from Heriot-Watt University on SNH s future role in the new planning framework established by the Planning etc (Scotland) Act The British Potato Council s report and accounts for (SG/2008/20) were laid before the Parliament on 11 March. Scottish Government announcements The Cabinet Secretary for Rural Affairs and Environment has announced the creation of a Zero Waste Think Tank as part of measures to promote waste reduction and recycling. The SG news release is available at: The Cabinet Secretary also announced 57.7 million of funding under the LEADER programme, the first tranche of money to be released under the 1.6 billion Scotland Rural Development Programme. The SG news release is available at: Correspondence The Convener has received a letter from the Scottish Urban Regeneration Forum (SURF) drawing attention to its work. Further information about SURF is available from its website: Correspondence with the Scottish Government From January 2008, correspondence between the Committee and the Scottish Government is available via the Committee s correspondence webpage at: Such correspondence will no longer be circulated with agendas as papers for information. However, correspondence that relates to agenda items will continue to be provided in the papers for the relevant meeting. Brussels Bulletin The fortnightly Brussels Bulletin produced by the Parliament s European Officer is available online at:

51 RAE/S3/08/5/M RURAL AFFAIRS AND ENVIRONMENT COMMITTEE MINUTES 5th Meeting, 2008 (Session 3) 5th March 2008 Present: Roseanna Cunningham (Convener) Jamie Hepburn Peter Peacock John Scott (Deputy Convener) Karen Gillon Des McNulty Mike Rumbles Bill Wilson The meeting opened at am. 1. Flooding and flood management inquiry witness expenses: The Committee agreed to delegate to the Convener responsibility for arranging for the SPCB to pay, under Rule , any expenses of witness in the inquiry. 2. Flooding and flood management inquiry: The Committee took evidence from Chris Spray, Director of Environmental Science, and David Faichney, Flood Unit Manager, Scottish Environment Protection Agency and then from Assistant Chief Constable Ewan Stewart and Superintendent James Urquhart (Grampian Police), Association of Chief Police Officers in Scotland, and David Wynne (Dumfries and Galloway Fire and Rescue Service), Chief Fire Officers Association of Scotland. 3. Subordinate legislation: The Committee considered the following document that is subject to negative procedure Environment Act 1995: The UK Strategy for Radioactive Discharges Draft Statutory Guidance (SG 2008/13)