Clearance and repair to reduce flood risk: local authority guidance

1. Legislative framework - sections 18 and 59 of the Act

1.1 Purpose

The purpose of this guidance is to help local authorities better understand their responsibilities and powers under sections 18 and 59 of the Act.

It is also intended to signpost other statutory requirements that have to be taken into consideration when carrying out clearance and repair works and highlight some of the issues and challenges which may need to be addressed.

This guidance contains a number of case studies to highlight real issues that have been experienced by local authorities when carrying out maintenance and repair work in relation to watercourses and how they dealt with these issues. These case studies are not offered as examples of best practice, but to illustrate some of the challenges local authorities may experience when carrying out their assessment, clearance and repair responsibilities.

Although local authorities are not required to have regard to this guidance (as it is not being given by the Scottish Ministers under section 2), it should help local authorities to better understand their responsibilities and powers under sections 18 and 59.

1.2 Introduction

Section 1 of the Act imposes a general duty on each local authority (and other responsible authorities) to exercise their "flood risk related functions" with a view to reducing overall flood risk and, in particular, to exercise their functions under Part 3 of the Act so as to secure compliance with the Floods Directive.

"Flood risk related functions" in relation to a local authority is defined in section 1(4). These include a local authority's functions under Parts 3 and 4 of the Act and any other functions relevant to flood risk management which the Scottish Ministers specify by order.

The Act is intended to provide local authorities with broad powers to allow them to take forward a full range of flood risk management measures.

1.3 Section 18 – Local authorities to assess bodies of water

Section 18 sets out two principle responsibilities of local authorities.

Firstly there is a need to assess relevant bodies of water:

Section 18 (local authorities to assess bodies of water)

(1) Every local authority must, from time to time (or when directed to do so by the Scottish Ministers)—
(a) assess the relevant bodies of water (other than canals) in its area for the purpose of ascertaining whether the condition of any such body of water gives rise to a risk of flooding of land within or outwith its area, and
...

Definition: 'relevant body of water' (as defined in section 17(5))

A relevant body of water means a body of surface water (other than a stretch of coastal water) or a body of underground water forming part of a watercourse (but not including a watercourse which is wholly underground), but does not include sewers and drains which drain into sewers.

Secondly, where any such body of water is assessed as giving rise to a risk of flooding of land and the authority considers that clearance and repair works would substantially reduce that risk, a schedule of clearance and repair works must be prepared.

Section 18 (local authorities to assess bodies of water)

(1) Every local authority must, from time to time (or when directed to do so by the Scottish Ministers)—
...
(b) where—
(i) a body of water gives rise to such a risk, and
(ii) the authority considers that clearance and repair works would substantially reduce that risk, prepare a schedule of those clearance and repair works.

(2) In subsection (1)(b), clearance and repair works are works that consist of any or all of the following—
(a) removing obstructions from a body of water,
(b) removing things that are at significant risk of becoming such obstructions,
(c) repairing artificial structures which form part of the bed or banks of a body of water.

The production of a schedule must meet certain criteria:

Section 18 (local authorities to assess bodies of water)

(3) A schedule prepared under subsection (1)(b) must—
(a) indicate when the local authority next intends to carry out an assessment under subsection (1)(a) of the body of water in question,
(b) contain such other information and be in such form as the Scottish Ministers may specify in regulations.

(4) A local authority must make available for public inspection the schedule of clearance and repair works prepared under subsection (1)(b) for the time being applicable to its area.

Section 18(5) and (6) makes further provision where any relevant body of water appears to the local authority to be in a condition which is likely to cause flooding of land outwith its area:

Section 18 (local authorities to assess bodies of water)

(5) Where it appears to a local authority, whether or not as a result of an assessment carried out under subsection (1)(a), that any relevant body of water in its area is in a condition which is likely to cause flooding of land outwith its area, it must notify the local authority for the area in which that land is situated.

(6) Subsection (5) does not apply where it appears to the first mentioned authority that the second mentioned authority is aware of the likelihood of the flooding.

1.4 Section 59 – Duty to carry out clearance and repair works

If a local authority considers that the carrying out of works described in a section 18 schedule (prepared by it) will contribute to the implementation of current measures described in any relevant local flood risk management plan or, alternatively, that the carrying out of those works will not affect the implementation of any such current measure, then the local authority is required to carry out those works.

Section 59 (duty to carry out clearance and repair works)

A local authority must carry out the works described in a schedule prepared by it under section 18 if it considers carrying out the works—
(a) will contribute to the implementation of current measures described in any relevant local flood risk management plan, or
(b) will not affect the implementation of the measures mentioned in paragraph (a).

1.5 Section 66 - Acquisition of land

Section 66 confers a power on each local authority to, by agreement, acquire land which it requires for the exercise of its functions under Part 4 of the Act, including any land required for the exercise of its duty to carry out works under section 59.

Section 66 (acquisition of land)

(1) A local authority may—
(a) by agreement, acquire land which it requires for the exercise of its functions under this Part,

1.6 Section 67 – Recovery of expenses

Where works are carried out by a local authority in accordance with section 59, the local authority may recover any expense it incurs in carrying out such work from the owner (or, as the case may be, the occupier) of the land in question but only if the expense is as a result of the actions of that person.

Section 67 (recovery of expenses)

A local authority may recover any expense it incurs in carrying out—
...
(b) any work required under section 59, from the owner or, as the case may be, occupier of the land on which work was carried out if such expense is as a result of the actions of that person.

1.7 Section 68 – Information about ownership of land

For the purposes of enabling a local authority to exercise its functions under Part 4 of the Act (including its duty under section 59), a local authority may, under section 68, require owners and occupiers of land to state their interest in that land. Owners and occupiers of land may also be required to provide contact details for any other person known to have an interest in that land. Any person who fails to comply with a requirement of a local authority under section 68, or intentionally or recklessly makes a statement which is false or misleading in a material particular, commits an offence.

Section 68 (information about ownership etc. of land)

(1) For the purposes of enabling it to exercise any of its functions under this Part, a local authority may require any person it believes to be the owner or occupier of any land to state in writing—
(a) the nature of the person's interest in that land, and
(b) the name and address of any other person known to the person as having an interest in that land.

(2) Any person who—
(a) fails to comply with a requirement of a local authority under this section, or
(b) in answer to any such requirement, intentionally or recklessly makes any statement which is false or misleading in a material particular, commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

1.8 Section 79(2) – Powers of entry

Section 79(2) entitles any person authorised by a local authority to enter land for the purposes of assessing a body of water under section 18 or carrying out works under section 59.

Section 79 (powers of entry)

(2) Any person authorised by a local authority is entitled to enter—
(a) any land for the purposes of assessing a body of water under section 18
(h) any land for the purposes of carrying out works under section 59

It also entitles any such person to enter a building because "land" in the Act includes (by virtue of other general interpretative provisions ^[1] ) building and other structures, land covered with water, and any right or interest in or over land to include buildings and other structures.

Any such authorised person may also enter land for the purposes of determining whether, and if so in what manner, any function conferred by or under Part 4 (including the duty in section 59) is to be exercised.

The right to enter land conferred by section 79 also includes (by virtue of section 81(1)) a right to enter (for the same purposes) any land adjacent to the land in question, and a right to survey and examine the land.

The right to enter any land conferred by section 79 may be exercised only at a reasonable time (see section 81(4)).

Further guidance on powers of entry is given in Chapter 7.

1.9 Section 80 – Warrants authorising entry

Section 79 entitles a person authorised by a local authority to enter land for relevant purposes but it does not expressly entitle that person to enter the land by force.

However, a sheriff or justice of the peace may (by warrant under section 80) authorise the person to exercise any such right of entry, if necessary using reasonable force (except force against an individual).

A sheriff or justice of the peace may only grant such a warrant if the sheriff or justice is satisfied that there are reasonable grounds for the exercise of the right in relation to the land concerned and that certain other conditions are satisfied.

If access is repeatedly refused by landowners or occupiers and all attempts to reach agreement fail, a warrant may be required.

Section 80 (warrants authorising entry)

(1) A sheriff or justice of the peace may by warrant authorise any person entitled to exercise a right conferred by section 79 to do so, if necessary using reasonable force, in accordance with the warrant.

(2) A warrant may be granted under subsection (1) only if the sheriff or justice is satisfied, by evidence on oath—
(a) that there are reasonable grounds for the exercise of the right in relation to the land concerned, and
(b) that
(i) the conditions in subsection (3) are satisfied,
(ii) the land is unoccupied, or
(iii) the case is one of urgency.

(3) The conditions mentioned in subsection (2)(b)(i) are
(a) the person applying for the warrant has given notice under section 81(3) of the person's intention to exercise the right,
(b) the notice period has expired,
(c) either:
(i) permission to exercise the right in relation to the land has been refused, or
(ii) such a refusal is reasonably expected.

(4) A warrant granted under this section:
(a) does not entitle a person to use force against an individual, and
(b) continues in force until the purpose for which the warrant was issued has been fulfilled or, if earlier, the expiry of such period as the warrant may specify.

(5) Any person who, without reasonable excuse, prevents or obstructs any other person from doing anything which is authorised by a warrant granted under this section commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

1.10 Section 81 – Powers of entry: Supplementary

Section 81 makes further provision in relation to powers of entry. In particular, before a person exercises any right to enter land under section 79 or 80 for the purposes of assessing a body of water under section 18 or carrying out works under section 59, the occupant of the land must be given at least 24 hours' notice. However, if entry without warrant is sought to a house or heavy equipment is to be taken onto the land without warrant, at least 7 days' notice must be given.

Section 81 (powers of entry: supplementary)

(1) A right to enter any land conferred by section 79 includes a right to—
(a) enter for the same purpose any land adjacent to it, and
(b) survey and examine the land.

(2) Any person who enters any land in exercise of a right conferred by section 79 is entitled, subject in the case of a right exercisable in accordance with a warrant to the terms of the warrant, to—
(a) take on to the land such other persons and such materials and equipment (including vehicles) as may be reasonably required for the purposes of assisting the person, and
(b) do anything else which is reasonably required in order to fulfil the purpose for which entry is taken.

(3) Before any such person exercises any such right, the occupant of the land concerned must be given—
(a) where—
(i) the person exercising any such right intends to take heavy equipment onto the land concerned or entry is sought to a house, and
(ii) the right being exercised is not being exercised in accordance with a warrant, at least 7 days' notice,
(b) in any other case, at least 24 hours' notice.

(4) A right to enter any land conferred by section 79 may be exercised only at a reasonable time.

(5) Subsections (3) and (4) do not apply to the exercise of—
(a) a right under section 79(2)(f), or
(b) if the situation is urgent, a right under section 79(1)(l).

(6) A person authorised to exercise any right conferred by section 79 must, if required to do so, produce written evidence of that authorisation.

(7) In subsection (3)(a)(i)—
"heavy equipment" does not include vehicles designed solely or mainly for the carriage of passengers, "house" has the meaning given in section 194(1) of the Housing (Scotland) Act 2006 (asp 1).

(8) In this section and section 82, references to a right to enter land conferred by section 79 include references to that right exercised in accordance with a warrant granted under section 80.

Any person who enters land under section 79 is entitled (subject to the terms of any associated warrant) to take other persons, materials and equipment (including vehicles) as may be reasonably required onto the land.

The person may also do anything else that is reasonably required to fulfil the purpose for which entry is taken, including, for example, the purposes of assessing a body of water under section 18 or carrying out clearance and repair works under section 59.

In all cases, the person authorised to exercise any right conferred by section 79 must, if required to do so, produce written evidence of that authorisation.

Further guidance in relation to powers of entry is given in Chapter 7.

1.11 Sections 82(2) and 83 - Compensation

A local authority must compensate any person who has sustained damage as a result of the carrying out of clearance and repair works under section 59, or the exercise of a right of entry conferred by section 79 for those purposes or for the purposes of assessing a body of water under section 18.

Section 82 (compensation)

(2) A local authority must compensate any person who has sustained damage in consequence of—
...
(d) the carrying out of works under section 59,
...
(f) the exercise of a right of entry conferred by section 79(2) (including the ancillary rights mentioned in section 81(1) and (2)).

By virtue of section 83(1), a person sustains damage if the value of the person's interest in land has been depreciated or the person's enjoyment of land has been disturbed.

See also 'Interest in Land' and 'Land affected' ( Chapter 9) for the extent to which a person's interest in land may be considered.

Section 83 (compensation: supplementary)

(1) In section 82, a person sustains damage if—
(a) the value of the person's interest in land has been depreciated, or
(b) the person has been disturbed in the person's enjoyment of land.

Compensation might therefore be payable to any individual or business that sustains any such damage in consequence of the carrying out of clearance and repair works by a local authority (see also Part 4 Guidance).

Section 83 (compensation: supplementary)

(2) SEPA or, as the case may be, a local authority must pay compensation under section 82 to a person only if—
(a) the damage is not attributable to an act or omission of the person,
(b) the act or omission causing the damage would have been actionable at the person's instance if it had been done or omitted otherwise than in exercise of statutory powers,
(c) the person gives notice to SEPA or, as the case may be, the local authority of the person's claim stating the grounds of the claim and the amount claimed, and
(d) the notice is given no later than the earlier of—
(i) 2 years after the depreciation first becomes apparent or, as the case may be, the first occurrence of the disturbance, and
(ii) 10 years from the completion of the scheme operations, maintenance, exercise of a right of entry or, as the case may be, exercise of another function mentioned in section 82.

However, a local authority is required to pay compensation only if the conditions in section 83(2) are met, including a requirement for notice of the claim to be given to the local authority within a specified period.

Section 83 (compensation: supplementary)

(3) Subsection (2)(b) does not apply where the damage has been sustained in consequence of circumstances falling within section 82(2)(e).

Any disputes over compensation under section 82 are to be determined by the Lands Tribunal for Scotland.

Section 83 (compensation: supplementary)

(4) Any question of disputed compensation under section 82 is to be determined by the Lands Tribunal for Scotland.