Flood Risk Management (Scotland) Act 2009: local authority functions under part 4 guidance

4.8 Appendix H - Modifications and Managing Change - Post Scheme Approval

Flood Protection Schemes - Modifications

Section 60 (1) of the 2009 Act makes provision for a local authority to promote a flood protection scheme.

Section 60 (2) introduces Schedule 2 which makes further provision about the making of flood protection schemes.

Schedule 2 Section 5 (1) sets out a process for resolving objections to a scheme. This requires that when a local authority receives a valid objection (as defined in Section 3 (2) of Schedule 2), it must make a preliminary decision to:

(a) confirm the proposed scheme without modification;

(b) confirm the proposed scheme with modification; or

(c) reject the proposed scheme.

This process provides a mechanism for resolving objections (as defined in Section 5 (2), (3) and (4) of Schedule 2) without any necessary recourse to either a local authority hearing (as per Section 8 (2) of Schedule 2) or a public local inquiry (as per Section 7 (2) of Schedule 2).

This provides an opportunity, which was not available under the 1961 Act, to consult further with relevant objectors to determine whether or not it is possible to modify the proposed scheme to satisfy the objector without compromising the scheme objectives.

If such a modification is possible and the local authority is prepared to implement the proposed scheme with modification it should ask the objector if they will remove the objection if the modification is incorporated as part of the scheme.

When the preliminary decision to confirm the proposed scheme with modification has been taken, the local authority must then give notice of its decision to every person who made a relevant objection.

There is then a reasonable expectation that the relevant objector who instigated the modification will confirm in writing that he has removed his objection to the scheme with modification.

Provided there are no other remaining relevant objections this will allow the final decision to be made by the local authority (as per Section 9 (1) of Schedule 2) or Scottish Ministers (as per Section 7 (4) of Schedule 2).

If Scottish Ministers decide to call-in and consider the proposed scheme (as per Section 6 of Schedule 2) there is a corresponding opportunity to resolve relevant objections through the incorporation of modifications.

It is noted, that neither local authorities nor Scottish Ministers may confirm a scheme with modification unless it has:

(a) given notice of the proposed modifications to the relevant objectors and anyone else who it considers is affected by them at least 28 days before confirming the scheme;

(b) given those persons an opportunity to make objections about the proposed scheme; and

(c) considered any objections so made.

It is therefore advisable that any person, in addition to the relevant objector, whose interest in any land may be affected by the modification, or who may be affected by an alteration in the flow of water caused by the modification, or any statutory authorities (as per Section 1 (1) (f) of Schedule 2) who may have an interest in the modification, are consulted and their agreement to the proposed modification obtained in advance of the preliminary decision.

A scheme can only be modified during the making of a scheme. Modifications cannot be made after a final decision to confirm the scheme, with or without modification, has been made either by a local authority or by Scottish Ministers.

Any proposed alteration to a scheme after the final confirmation is not a modification, but is a change and must be managed by an acceptable change procedure.

It is arguable that design changes during the making of a scheme can be incorporated as a modification. This will only be acceptable if the changes are not major in scope, are in accordance with the objectives of the scheme and all persons that are affected by the changes and interested statutory authorities are consulted and agree that the changes can be incorporated into the scheme as a modification.

Change within a FPS pre-approval:

• Where a change is required before the publication of the Scheme one simply changes the design.
• Where a change is required following publication but prior to confirmation this is a modification and it is dealt with through the processes defined in the guidance.

Managing Changes to a scheme post-approval (Managing Change):

There is no provision in the Flood Risk Management (Scotland) Act 2009 or its 2010 Regulations that deals with changes to a scheme post-approval. Furthermore, there is currently no precedent from an existing flood protection scheme.

With a major flood protection scheme in an urban environment, given the level of complexity of such a scheme and the interaction with existing public utilities, the built environment and many stakeholders, it is almost certain that a change will be required.

How changes are to be managed needs to be considered, identified and documented by the local authority. The following provides guidance on how post-approval changes could be managed.

Nature of Change

How has the change arisen? Is it "unforeseen" or a "change of choice"? And ultimately, what are the impacts / consequences of the change?

If there are effectively no impacts then presumably there is no issue in making the change. In coming to this decision one should consider the change; the land owners and other stakeholders; the deviation from the approved scheme operations and thereby the "material change" criteria that would apply to a scheme modification / normal planning consideration.

On the basis that a local authority can advance any flood protection works by agreement. Advancing a change by agreement within a FPS is therefore a logical advancement of this ability. Where a change affects multiple parties then the level of consultation with other potentially affected parties and reaching agreement becomes more complex.

Other significant effects may result through dealing with 'unforeseen conditions' during construction. These may result in effects on the environment with or without changes to the permanent works. It would appear unrealistic that these latter changes would be changes that require a modification, but they should be recorded on as-built drawings and scheme operation management plans.

Where agreement is not reached on a proposed change post-approval and certainly during construction, it is considered unreasonable that a local authority cannot proceed with that change if it has followed a reasonable approach to consulting with affected parties and mitigating any adverse effects on them or the environment.

Change management post-approval and certainly during construction needs to plan and record the approach taken and decisions made. This would be standard practice for construction contracts, however, consideration of the nature and impact on the change to the scheme on non-contractual parties should be recorded.

Case Study: The Selkirk FPS used the Change by Agreement route at Ravensheugh, Selkirk in 2013. They wished to include this location in the scheme but pre-approval the stakeholder did not wish for them to do so. They did not need to fight the matter as it did not affect the scheme hydraulics: it was essentially an added bonus and completed the restoration of the lower reach to the upper catchment. The stakeholder then requested that they increase the length of the Long Philip Burn River Restoration by approx. 140m immediately upstream of the scheme end-point and through their property post-approval. This is entirely within private property and a CAR Licence will be obtained before works commence. In essence it added to the scheme, by agreement, without being in (or funded by) the scheme. It did not therefore complicate the scheme: it is however not funded by the scheme!