Clearance and repair to reduce flood risk: local authority guidance

9. Appendices

9.1 'Interest in Land' and 'Land affected' in relation to section 18 and section 59

9.1.1 Preamble

The following are considered to represent persons with an interest in land:

• Land owners
• Occupiers
• Those with leases
• Those with servitudes
• Those with securities

Persons affected by the clearance and repair works may also include those on adjacent land. However, the scale of those with an interest in land is likely would be less than those affected by a flood protection scheme, and should be proportionate to the scale of the works.

In applying fair and reasonable endeavours to identify these persons so that they can be considered for the serving of notices, payment of compensation or identified as possible objectors. The term relevant objectors applies only to flood protection schemes, however, a similar but proportionate principle and approach should be applied to dealing with any objections related to section 18 and section 59 activities. This is certainly the case where a warrant is requested from a Sherriff and the landowner is granted a right of audience, becoming in effect an 'objector' (see section 9.1.19). The local authority should therefore have a clear record of the considerations given and parameters applied to land affected and persons affected by the clearance and repair works.

In this context clearance and repair works should also be considered to include inspection and assessment activities that require entry to land that may lead to damage or the payment of compensation, or recovery of expenses.

9.1.2 Introduction

There are a number of references within the Act to persons with an 'interest in land' and where land is 'affected'. This appendix should be considered in conjunction with the body of the guidance and also the separate Part 4 Guidance.

These are most notably applied to flood protection schemes and often in relation to raising objections. However, it is considered that these may also be applied to flood protection works and also clearance and repair works.

The Act gives some indication on what is meant by 'interest in land' or 'interest in land affected' but these are not defined. There is also the broader Scots Law context as described below.

9.1.3 Scots Law

Scots Law can be considered to be fairly clear on who has an "interest in land" or "real right". These are: (i) ownership and (ii) subordinate real rights, including servitude and lease. The latter are treated as real rights burdening the land directly. Real burdens are conditions upon lands which are effective due to their registration in the Register of Sasines or the Land Register of Scotland.

It is considered that each local authority should establish that it is content with the methods applied to determine those with a real right to land under Scots Law and also in terms of the interpretation to be applied to 'interest in land' as used in the Act and regulations. A record of this consideration should be made with clear reference to the parameters applied.

9.1.4 Human rights

People depend on the environment around them for their physical and mental health, and general wellbeing. When that environment is threatened, certain human rights may be undermined. In particular, the progression of flood protection works or a scheme may have implications for property owners and for occupiers where these interfere with the right to respect for private and family life (Article 8) of the European Convention on Human Rights and peaceful enjoyment of their possessions (Article 1 of the First Protocol to that Convention). However, it is generally considered that any actual or apprehended infringement of such Convention Rights is justified in the public interest and in accordance with the council's duty to carry out works to reduce the likelihood of flooding of land. However, the local authority should take legal advice to ensure that any such scheme or works is compatible with Convention Rights, including those Rights as read with Article 14 (prohibition of discrimination) of the Convention. In progressing a flood protection scheme or works, care should be taken to ensure that the poorest and most vulnerable people are not discriminated against, e.g. low value property is sacrificed at the expense of higher value land.

9.1.5 Information about ownership etc. of land

In order to enable it to exercise any of its functions under Part 4 of the Act, a local authority may require land owners or occupiers to state their interest in that land in writing (section 68). Land owners or occupiers may also be required to provide contact details for any other person known to have an interest in that land. Any person failing to comply with the requirements of a local authority under this section, or knowingly or recklessly providing false or misleading information, is guilty of an offence.

Given land owners have an 'interest in land' and occupiers have an 'interest in land' it may reasonably be interpreted that the provision of 'contact details for any other person known to have an interest in that land' could be limited to those who also own ( e.g. shared ownership) or occupy the land ( e.g. shared, sub-letting). This is relatively clear as to who definitely has an 'interest in land' under this section of the Act. However, other parts of the Act and broader legal interpretation ( e.g. those with a servitude) may indicate that there are other persons who have an 'interest in land'.

Common examples of servitudes include: right of access to property; right of drainage and/or sewage, and right to draw water from a private water supply.

Other burdens on land that the local authority should consider establishing are those relating to securities on land. These might be standard securities or heritable securities. Examples are those secured creditors over land where a debt is tied to the land with deeds, which may be registered securities over land. For example, banks and building societies may be 'heritable creditors' (equivalent to a mortgagee). Local authorities should consider the risks to the delivery of flood protection schemes resulting from those with securities on land, either standard or heritable, from their legal and estates services.

Therefore, in order for a local authority to be able to provide land owners or occupiers who have been required to state their interest and provide contact details for other persons known to have an interest in land, the local authority should have established the parameters of those with an interest as described earlier. This will allow the local authority to provide clear direction in seeking Information about ownership etc. of land.

9.1.6 Land affected

A fair and reasonable assessment of how clearance and repair works may affect land and those with an interest in land should be straightforward. However, such an assessment should be recorded and the parameters applied should be clearly stated. This is particularly important in considering the compensation that must be paid (see below) and also in identifying those who should be served notices under the Act.

The effects on land affected or persons with an interest in land can be indirect or remote from the clearance and repair works. For example, such works may impact on land drainage to agricultural land in the catchment, or increase or decrease downstream flood levels. Even if these may be considered to be reinstating the historic flows, this should be considered.

'Remote' effects can also have a particular relevance in considering environmental impacts, however given the likely scale of clearance and repair works these are not likely to be considered significant. They should though still be considered.

9.1.7 Compensation

Compensation must be paid to any person who has sustained damage as a consequence of exercising certain powers under the Act (see section 82). Section 83(1) defines damage as the depreciation of the value of a person's interest in land or the disturbance of a person's enjoyment of land.

'Enjoyment of land' therefore needs to be considered. As with 'interest in land' or 'interest in land affected', there is no definition within the Act of 'enjoyment of land'.

The 'legal' rights to enjoyment (of land) might cover the right to light, to clean air, to clean water, to lack of loud noise and so on. These might cover the right to rainwater from a neighbour's land, the right of passage to access landlocked land over that of a neighbour, or the right to pasture your animals on another's land. It might also extend to the right to enjoy the use and benefit of another's property by a beneficiary, i.e. life rent or fiar.

Land owners and occupiers should be aware of servitudes affecting their interests, and that this would provide insight for the local authority in considering the interest in land, which would apply to compensation, and other considerations under the Act, e.g. issuing of notices.

There is wider consideration of the interest in land of, for example, anglers or a 'dog walker', or those using an affected right of way such as footpath or bridleway, and their enjoyment in the land that may be affected by scheme operations or other powers exercised. However, given the likely scale of clearance and repair works these are not likely to be considered significant. They should though still be considered.

Advice on the amount of compensation in all these cases needs to be taken by the local authority, e.g. Valuation Office Agency and chartered surveyors.

9.1.8 Description of the clearance and repair works

Where there is a need to explain the nature of clearance and repair works on land, the description of the clearance and repair works should contain sufficient information to allow a person to understand the scale and nature of the proposed works and determine the impacts these would have on his interests. Such a description should consider the wider aspects of those affected and the local authority should record this consideration.

In addition, maps and plans where used should be at an appropriate scale to enable interested persons to readily identify their own land and identify whether their land will be affected by the clearance and repair works. Again in developing and publishing such maps and plans the local authority should consider the wider aspects of those affected and record this consideration.

9.1.9 Objections

The Act does not identify the process to be followed if persons object to clearance and repair works, other than it an offence to prevent or obstruct a person from exercising a power of entry under a warrant, unless the person obstructing or preventing access has a reasonable excuse for doing so (section 80(5)).

It is considered that there will be ample opportunity to seek to remove such an 'objection' through proper communication with the affected parties. The right to refuse entry remains, which would then allow the court to make a judgement on such an objection in deciding on the issuing of a warrant for entry to undertake the clearance and repair works. It is therefore essential that a local authority plans and records their actions in exercising their powers of entry to land.

In addition, the right to compensation allows objectors to seek redress for damage, i.e. the depreciation of the value of a person's interest in land or the disturbance of a person's enjoyment of land. Again, good and proper planning and record keeping will assist in the determination of any compensation claims.

9.2 Example procedure for section 99 of Roads (Scotland) Act 1984

Enforcement of Section 99 – Procedure, Standard Letters and Notices

1) Procedure for Dealing with Water Flow onto the Public Road – Guidance Note
2) Letter A – initial letter to landowner / occupier
3) Letter B – follow-up letter to landowner / occupier
4) Letter C – letter to Police Scotland advising of offence and seeking matter is investigated
5) Letter D – Notice to landowner / occupier requesting situation is rectified and advising further action will be taken if not
6) Letter E – Notice to landowner / occupier seeking costs for Dumfries and Galloway Council undertaking remedial work

Roads (Scotland) Act 1984 – Section 99

DRAFT

Procedure for Dealing with Water Flow onto the Public Road

Guidance Note

Logging Process
1. Incidents of water flowing or seeping on the public road will be logged on recorded in either an electronic or paper based format but whichever method is adopted full details of all occurrences identified must be described, dated and photographed. Corroboration of evidence gathered, including meetings with land owner or occupier should also be included.
2. The monitoring of the situation will be the responsibility of the Team Leader in the appropriate Local Office. Further incidents should be logged to ensure a full picture of the problems are understood.
3. Once logged this defect will be automatically assigned to the Team Leader for the appropriate area and the Senior Manager Roads Service advised.
4. It will be the responsibility of the Senior Manager Roads Service to ensure that the remaining steps are undertaken, and that the information contained within the electronic or paper file is maintained.

Monitoring and Inspection Process
5. An inspection of the site is to be carried out, with necessary photographs taken to determine the scale of the problem. A number of visits during different weather conditions may be required to determine the full extent.
6. It is critical that all incidents are recorded to ensure a good evidence base. This must include time-dated photographic evidence.
7. Should the flow of water present a clear and immediate danger to the travelling public necessary steps should be taken to warn of the hazard as quickly as possible. Further alleviation works should be carried out as required to reduce the immediate risk.
8. If possible the owner should be contacted, advised of the seriousness of the situation and that they are required to take immediate action.

Engineering solutions
9. In undertaking investigations, the Team Leader should give consideration to the availability of achievable solutions to the problems.
10. If there no obvious / simple solutions further guidance should be sought from manager and/or Team Leader Flood Risk Management

Land ownership
11. Investigations may require to be undertaken to determine the ownership of the ground from which the flow is passing onto the Public Road. This may involve discussions with colleagues in Strategic Property Services who may seek further input from Legal Services and the Assessor and Electoral Registration Officer.

Notification Process
12. Landowners are to be reminded of their legal responsibility to prevent the flow of water onto the public road. Letter A should be sent to the appropriate landowner(s) as soon as practicable after the determination of ownership. This letter will be issued by the Team Leader and copied to their manager and Legal Services
13. A follow up letter should be sent after 28 days if no action has been noted on site. Letter B should be used and again issued by the Team Leader and copied to their manager and Legal Services.
14. Should Letter B fail to achieve an immediate response steps should be taken to report the issue to the Police Scotland without further delay, at an appropriate Police Station near to where the alleged offence has been committed. Letter C should be used for that purpose and this is to be issued by the Senior Manager Roads Service

Formal Notice
15. Separately, Section 99(3) provides the opportunity for formal Notice to be served on the landowner. This step should be treated with caution and generally should only be considered should the notification process within this procedure fail to address the problem satisfactorily. Further guidance should be sought from the Director DGFirst / Director Planning and Environment Services and Legal Services before proceeding to issue a formal Notice. Any such Notice should, as far as practicable, include details of the works required to address the problem. Advice may be required from the Flood Risk Management Team to determine the nature of the works.
16. A standard Notice template is included as Letter D . This letter can only be signed by specific persons and further advice on issue should be sought from the Senior Manager Roads Service.
17. Should a formal Notice fail to be complied with Section 141(1) gives the Roads Authority the power to undertake the works, while 141(2) provides for the power to seek to recover costs.
18. Letter E should be used to inform the landowner of his failure to comply with the Notice, and of our intention to carry out the works and recoup the costs.

Exceptions
19. Should the discharge of water be minor in nature, such as seeping from a cutting/embankment onto the verge then onto the road, it may well be appropriate for DGFirst to undertake remedial measures. The final decision on this course of action is to be taken by the Senior Manager Roads Service.

Further considerations
20. The Team Leader should seek further guidance from the Senior Manager Roads Service in instances where the adjacent landowner, potentially a private residence is, as downstream neighbour, receiving the water from agricultural land upstream with limited options to manage within property boundary.

Letter A

Dear .....

Flow of Water onto (Road Number)

Dumfries and Galloway Council has recently become aware of water flowing onto 'Road Number' at 'Location'. This flow of water is endangering the passage of vehicles (and pedestrians) using the road. Please find enclosed a location plan and several photographs of the site affected by the flow of water.

Dumfries and Galloway Council understand that you are the owner(s) of the property from which water is flowing.

I am therefore, writing to make you aware that under the terms of the Road (Scotland) Act 1984, Section 99(1) the owner of any land ' shall prevent any flow of filth, dirt or other offensive matter from, or any percolation of water through, the land onto the road.' The flow of water from your land onto 'Road Number' is currently in contravention of the Act referred to above.

I am sure you will be aware of the serious safety implications that the water flow mentioned above can have for those travelling on the public road. I would therefore be grateful if you would please make the necessary arrangements, within 28 days of the date of this letter, to carry out such works as necessary to comply with section 99(1) of the Act. Please note that any works that you propose to carry out to rectify the situation which involves work in the public road will require the written consent of the Dumfries and Galloway Council.

Dumfries and Galloway Council take this matter very seriously as the maintenance of public safety on the road network is one of our primary concerns. Should you fail to rectify the matter within 28 days of the date of this letter then the Council will have to consider further action to remedy the situation.

At this time I should also make you aware that failure to prevent the flow of water onto a public road is a criminal offence, which is punishable by a fine of up to £2,500.

Should you require any further information, or require any advice regarding your remedial proposals then please do not hesitate to contact me on the above number.

Your

Team Leader

Cc Legal Services

Senior Manager Roads Service

(OWNERSHIP CHECK MUST BE DONE BEFORE SENDING ANY LETTER)

Letter B

Dear ........

Flow of Water onto (Road Number)

I refer to the above and to my previous letter dated (insert date) regarding the flow of water from your property onto 'Road Number' at 'Location'. (copy enclosed for ease of reference).

I am aware that it has now been more than 28 days from the date of my initial letter sent to you, and ongoing inspections of the area indicate that you have taken no steps to prevent the flow of water from your land.

I am very keen for this matter to be resolved amicably and therefore ask that you contact me to discuss your proposals to resolve this issue as a matter of urgency. As stated in my previous letter this is a matter which Dumfries and Galloway Council take extremely seriously as the current situation has the potential to endanger the passage of vehicles and pedestrians.

Dumfries and Galloway Council has powers under the Road (Scotland) Act 1984 to intervene and carry out such works (including excavations) as in its opinion are necessary for compliance. A separate statutory notice will be served on you should it be considered necessary to exercise these powers.

At this time I must also remind you that failure to prevent flow of water onto the public road is a criminal offence and currently attracts a fine, upon summary conviction of up to £2,500. Dumfries and Galloway Council will have little choice but to refer the matter to the Police for further action should you fail to make immediate contact with me at the above number or address in response to this letter.

I look forward to hearing from you as a matter of urgency.

Yours

Team Leader

Cc Legal Services

Senior Manager Roads Service

Letter C

Officer in Charge

Police Scotland

Dear Sirs,

Proposed Prosecution Under Section 99 of The Roads (Scotland) Act 1984

Dumfries and Galloway Council has recently become aware of water flowing onto 'Road Number' at 'Location' which is endangering the passage of vehicles (and pedestrians).

I enclose the following documents:-
1. Location Plan
2. Photograph of the site
3. Dumfries and Galloway Council's record of inspection
4. Council Tax Record
5. Initial letter from Dumfries and Galloway Council to landowner( s) dated ( insert date).
6. Follow up letter from Dumfries and Galloway Council to landowner( s) dated ( insert date).

It appears to the Council that the facts and circumstances constitute a contravention of Section 99 of the Roads (Scotland) Act 1984.

I am therefore writing to you to refer this matter for investigation. If you require any further materials then please do not hesitate to contact me on the above telephone number.

Yours

Senior Manager Roads Service

Cc Legal Services

Letter D

Notice - Roads (Scotland) Act 1984 Section 99

Prevention of Flow of Water ETC onto Roads

There is a flow of water or of filth, dirt or other offensive matter from, or any percolation of water through, land owned or occupied by yourself on the ................. (Road Number) at ...................................................(Location).

In accordance with Section 99(3) of the Act, the Council hereby requires you within 28days/ (or longer date if specified) from the date of service of this notice, to carry out such works or excavations* as are specified below which are necessary to ensure compliance with Section 99(1).

Specified works or excavations:_

......................................................................................................................................

.......................................................................................................................................

.......................................................................................................................................

An appeal against this Notice may be made by referring the matter by summary application to the Sheriff within 28 days of service of the Notice.

After expiry of the said 28 days or, in the event of such an appeal to the Sheriff, after failure of that appeal, in the event of non-compliance with the requirements of this Notice the Council may exercise its power under the Roads (Scotland) Act 1984 to carry out the required works (Section 141(1) of the Act) and recover from the recipient of this Notice the expenses reasonably incurred in carrying out such works (Section 141(2) of the Act).

Failure to prevent such flow or percolation is an offence under Section 99 of the Act.

Should you require any further information please contact ............. on ...................(telephone number).

Yours

Council Solicitor or Head of Infrastructure and Commissioning

Cc Legal Services/ Head of Infrastructure and Commissioning

Senior Manager Roads Service

*No works in or excavation under the public road may be commenced without the written consent of the Roads Authority. An application form for such consent is attached and should be returned to the above address as soon as possible.

Letter E

Notice of Intention Roads (Scotland) Act 1984 Section 99

Prevention of Flow of Water ETC onto Roads

I refer to the Notice served on .....(insert date) regarding the flow of water or of filth, dirt or other offensive matter from, or percolation of water through land owned or occupied by yourself, on the .........(Road Number) at ..........................(Location).

As the Notice has now expired with no satisfactory resolution the Council hereby advises that it intends to exercise its power under the Roads (Scotland) Act 1984 to carry out the required works (Section 141(1) of the Act), and recover from the recipient of this Notice the expenses reasonably incurred in carrying out such works (Section 141(2) of the Act).

Should you require any further information or wish to discuss an extension to the original Notice please contact 'Name' on the above telephone number.

Yours

Council Solicitor or Head of Infrastructure and Commissioning

Cc Legal Services/ Head of Infrastructure and Commissioning

Senior Manager Roads Service

9.3 Guidance Flow Chart