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

1. Part 4 of the Act - General

1.1 Introduction

Part 1 of the Flood Risk Management (Scotland) Act 2009 (the "Act") sets out a number of general duties on local authorities and other responsible authorities to exercise their flood risk related functions with a view to reducing overall flood risk and, in particular, to do so to secure compliance with the EC Directive (2007/60/ EC). "Flood risk related functions" are defined in section 1(4) and include functions under the Act and any other functions relevant to flood risk management which the Scottish Ministers may specify by order. Therefore these duties apply to local authorities when they are involved in the preparation of flood risk assessments, flood maps and flood risk management plans under Part 3 of the Act, and when considering use of their functions under Part 4.

Part 4 of the Act sets out the provisions which replace the Flood Prevention (Scotland) Act 1961 (the '1961 Act'). The 1961 Act was both restrictive and prescriptive so the intention of the 2009 Act was to provide local authorities with broad powers to allow them to take forward a full range of flood risk management measures.

1.2 Section 56 - General power to manage flood risk

These powers are permissive; local authorities do not have a duty to use these powers.

1.3 Local Flood Risk Management Plans

56 General power to manage flood risk

(1) A local authority may do anything which it considers

(a) will contribute to the implementation of current measures described in any relevant local flood risk management plan,

Section 56(1)(a) enables a local authority to do anything which it considers will contribute in a positive way to the implementation of current measures described in any relevant local flood risk management plan ( LFRMP). This could include supporting or contributing to activities carried out by others, including other responsible authorities.

This guidance has been prepared on the basis of a local flood risk management plan being in place. Until such time as the plans are in place, it is expected that local authorities would proceed as if there were a plan in place and appraise any proposed schemes or flood protection works in a similar manner.

Each local authority will have standing orders and schemes of delegation, and may have other policies that impact on the general power, which should be considered in taking forward works and schemes. For example, procurement authority limits and processes will need to be complied with, as may civil contingency plans.

1.4 Emergency works

It is considered that an emergency situation occurs when a flood is imminent and is expected to result in serious adverse consequences to human health, the environment, cultural heritage or economic activity. In such cases, under section 56(1)(b) a local authority may do anything it considers necessary to reduce the imminent risk of flooding to avert the expected serious adverse consequences.

56 General power to manage flood risk

(1) A local authority may do anything which it considers

(b) is necessary to reduce the risk of a flood in its area which is likely to

(i) occur imminently, and

(ii) have serious adverse consequences for human health, the environment, cultural heritage or economic activity,

This may include for example: preventative actions, emergency repairs or other flood aversion activities. Local authorities also have powers of entry under section 79(2)(f) to enable them to carry out these emergency flood reduction activities.

79 Powers of entry

(2) Any person authorised by a local authority is entitled to enter

(f) any land for the purpose of carrying out flood protection work on the ground mentioned in section 56(1)(b),

It may be that these activities would normally require an authorisation under the Water Environment (Controlled Activities) Regulations (Scotland) 2011. SEPA should be consulted ahead of any such works (" CAR"). Reference should be made to ' CAR 2011 Emergency Provisions and Accelerated Determination' where the emergency works are undertaken by a category one responder under section 48 of the Water Environment (Controlled Activities) Regulations (Scotland) 2011.

1.5 Flood protection measures outwith the Local Flood Risk Management Plan

In addition to emergency measures and those in a LFRMP, local authorities may carry out other flood protection work to manage flood risk under section 56(1)(c), so long as it does not affect the implementation of measures in the LFRMP.

56 General power to manage flood risk

(1) A local authority may do anything which it considers

(c) will otherwise manage flood risk in its area without affecting the implementation of the measures mentioned in paragraph (a).

This could include works identified as beneficial since the LFRMP was published, or circumstances where funding has become available for flood protection work, perhaps from other sources which may reduce the local authority's contribution and hence make flood protection works more affordable.

1.6 Carrying out flood protection work

It is for the local authority to consider the most appropriate arrangement for carrying out any work.

Section 56(2) provides various illustrations of what a local authority may do under the Act without restricting the generality of the power contained in section 56(1).

56 General power to manage flood risk

(2) Without prejudice to the generality of subsection (1), a local authority may in particular

(a) carry out any operations to which a flood protection scheme relates (see section 60),

Section 56(2)(a) enables the local authority to take forward flood protection schemes under section 60 of the Act. The decision to take forward a scheme by a local authority will be dependent on the nature and scope of the work that needs to be undertaken, the ownership or occupation of any land required as part of the scheme, and whether agreement can be reached with all parties affected by the works.

CASE STUDY

Agreement which didn't go to plan.

A project involving fairly significant flood works was developed by Aberdeenshire Council. This was accepted in principle by the landowners with very little dissension, and planning permission and a CAR licence were subsequently received. However, it then proved extremely difficult for the council to obtain agreement with all of the landowners to either acquire ground or obtain servitude rights to construct the works. The main stumbling block was in agreeing compensation settlements.

Landowners were in no hurry to accept the level of compensation offered and without the backing of a scheme, the council was unable to control the issue or dictate timescales. As a result, the landowners pressurised the Council to try and increase its offer in order to reach a settlement without recourse to more formal prolonged procedures.

In summary, agreements can work, however care should be taken when adopting this approach.

Agreements are most suited to situations where simple flood alleviation works are required involving a single landowner when there is reasonable certainty that the landowner will not subsequently change their mind. At the very least, this should be backed up by an early letter written by the Council and countersigned by the landowner to say that they are willing to enter into an agreement and that should they not accept the terms on offer - which will reflect current market values - within a fixed timescale (say 28 days) the proposed arrangement will be withdrawn and a formal flood scheme progressed.

When reaching an agreement with landowners and relevant stakeholders seems unlikely due to the scale and complexity of a proposed programme of flood protection works, local authorities should promote a flood protection scheme which, on confirmation, gives the authority the necessary powers under section 79(2)(e) to enter any land for the purposes of carrying out the scheme.

79 Powers of entry

(2) Any person authorised by a local authority is entitled to enter

(e) any land on which scheme operations are to be carried out, for the purposes of carrying out the operations or of executing any temporary works in relation to them,

More detailed guidance on promoting a scheme is set out in Chapter 2.

56 General power to manage flood risk

(2) Without prejudice to the generality of subsection (1), a local authority may in particular

(b) carry out any other flood protection work,

Section 56(2)(b) enables local authorities to carry out any other flood protection works. Flood protection works are defined under section 95(1) as being, any operation on land for the purpose of protecting any land from flooding including:

a) any work of construction, alteration, restoration, enhancement, improvement, repair, maintenance, demolition or removal,

b) any work that involves the alteration (including enhancement) or restoration of natural features and characteristics of any river basin or coastal area,

c) the sowing or planting of vegetation or forestry,

d) any work ancillary to an operation specified in paragraphs (a) to (c).

Local authorities would benefit from following the guidance on taking forward a scheme when undertaking flood protection works under section 56(2)(b) as many of the same principles will apply. However, there will be deviations between the two processes particularly in relation to planning permission amongst others. In certain circumstances local authorities may wish to use a Compulsory Purchase Order ( CPO) to support flood protection work. Guidance on CPOs can be found here.

Section 56(2)(c) enables local authorities to carry out any temporary works required for the purpose of a flood protection scheme or any other flood protection work.

56 General power to manage flood risk

(2) Without prejudice to the generality of subsection (1), a local authority may in particular

(c) carry out any temporary works required for the purposes of a flood protection scheme or any other flood protection work,

In general terms for a scheme of flood protection works, temporary works might be needed to create access for these works, storage of equipment or creation of a temporary works site near the actual works, which will all be reinstated to their former condition once the scheme or flood protection works are completed.

In terms of the construction of a scheme or flood protection works, temporary works ( TW) are the parts of a construction project that are needed to enable the permanent works to be built. Usually the TW are removed after use, e.g. access scaffolds, props, shoring, excavation support, falsework and formwork. Sometimes the TW is incorporated into the permanent works, e.g. haul road foundations and crane or piling platforms may be used for hardstanding or road foundations (refer to BS5975: 2008 for further clarity on what constitutes TW).

56 General power to manage flood risk

(2) Without prejudice to the generality of subsection (1), a local authority may in particular

(d) enter into agreements or arrangements with any other person

(i) for the carrying out by that person or by the authority of any work which could be done by the authority under this Part, or

(ii) relating to the management by that person of land in a way which can assist in the retention of flood water or slowing the flow of such water,

Section 56(2)(d) enables local authorities to enter into agreements or arrangements with other people or organisations such as land managers, other responsible authorities including Scottish Water and other local authorities, community groups, charitable organisations and private businesses to carry out works or to manage the flow of water.

Local authorities should ensure that any such agreements/arrangements are robust and this may mean they need to address any potential issues in advance and be legally valid.

For example, they may need to include any servitude rights that may be required in perpetuity and include financial implications of any such agreements. Local authorities should seek appropriate professional advice when entering into such agreements / arrangements.

There are also circumstances where less formal arrangements might suffice, e.g. where community group members volunteer to be local flood wardens and help deploy sandbags when a flood is imminent or other similar activities. Local authorities should take risk into consideration when entering into any agreements/arrangements under this power to ensure a proportionate approach is undertaken.

Under section 56(d)(i) the arrangements/ agreements can include undertaking flood protection works, clearance and repair work under section 59, or any other activity that the local authority could undertake under Part 4 of the Act. The activity or work could be carried out by the authority or by other people. Local authorities can contribute towards the expenditure of the other body under section 56(2)(e) or receive contributions from any other body towards expenditure incurred under Part 4 of the Act under section 56(2)(g). For example, a local authority could contribute towards the development of a flood warning scheme by SEPA; to Scottish Water for a joint project to improve surface water management or a community group for the purchase of flood sacks. A local authority could also receive contributions towards works, for example, from a developer wishing to increase flood protection to support a development proposal.

Section 56(2)(d)(ii) also enables local authorities to enter into agreements relating to the management of land in a way which can assist with slowing the flow or retaining flood water. These activities are generally known as natural flood management ( NFM).

56 General power to manage flood risk

(2) Without prejudice to the generality of subsection (1), a local authority may in particular

(f) make payments to any other person in compensation for income lost as a result of entering into agreements or arrangements of the type mentioned in paragraph (d)(ii),

Under section 56(2)(f) the local authority can compensate the land manager for income lost as a result of entering into such arrangements. Local authorities can also work with a coordinating body (for example, as Scottish Borders Council have done with the Tweed Forum) to coordinate these types of activities. A Natural Flood Management Handbook is being prepared separately and includes guidance on how to take forward this type of work. This document will be available in the near future. Supplementary technical guidance is also being prepared and will be available at a later date.

1.7 Works outwith local authority's area

56 General power to manage flood risk

(3) Work carried out under this section may be carried out within or outwith the local authority's area.

Where works are carried out outwith an individual authority area, as per section 56(3), the local authority promoting the work should liaise closely with the neighbouring authority, and the governance of such works need to be established. The Local Flood Risk Management Plan should be referred to.

1.8 Limits of general power: statutory undertakings

57 Limits of general power

(1) The power under section 56 does not enable a local authority to do anything which it is, by virtue of a limiting provision, unable to do.

(2) In subsection (1), a "limiting provision" is one which

(a) prohibits or prevents the local authority from doing anything or limits its powers in that respect, and

(b) is expressed in an enactment (whenever passed or made).

(3) The absence from an enactment of provision conferring any power does not of itself make that enactment a limiting provision.

Section 57 prevents local authorities from doing anything under section 56 which it would be otherwise unable to do as a result of other Acts or forms of legislation which contain a positive restriction on the powers of a local authority, e.g. the Water Environment and Water Services (Scotland) Act 2003. In considering actions under section 56, local authorities should determine what they are unable to do as a result of other legislative restrictions and satisfy themselves that these restrictions have been adhered to.

Formerly, a local authority was limited in its use of its statutory scheme powers to work only on a diversion of public water mains or sewers as a consequence of other flood prevention work, and only with the consent of the water authority. The position with other statutory undertakings was uncertain but was usually applied in a similar way.

Inverness FPS - Construction work

58 Limits of general power: statutory undertakings

(1) A local authority may not exercise the power under section 56 in a way which

(a) damages any works or property belonging to a statutory undertaker, or

(b) interferes with the carrying on of its statutory undertaking, unless the undertaker consents.

(2) But consent is not required if it is withheld unreasonably.

(3) It is for the Scottish Ministers to determine any question which arises as to whether consent has been withheld unreasonably, and their decision is final.

Section 58 prohibits a local authority from exercising its general power to manage flood risk in a way which damages any works or property belonging to a statutory undertaker, or interferes with the carrying on of its statutory undertaking unless the undertaker consents. "Statutory undertaker" and "statutory undertaking" are defined in section 71 and are copied here for convenience as follows:

71 Interpretation of Part 4

In this Part

"statutory undertaker ^{[ 1]}" means

(a) the holder of a licence under section 6(1) of the Electricity Act 1989 (c.29),

(b) a gas transporter within the meaning of Part 1 of the Gas Act 1986 (c.44),

(c) the Civil Aviation Authority,

(d) a holder of a licence under Chapter 1 of the Transport Act 2000 (c.38),

(e) the operator of an electronic communications code network within the meaning of paragraph 1(1) of Schedule 17 to the Communications Act 2003 (c.21), and

(f) any other person who is a statutory undertaker within the meaning of section 214(1) of the Town and Country Planning (Scotland) Act 1997 (c.8),

"statutory undertaking"

(a) means, in relation to a person mentioned in paragraphs (a) to (e) in the definition of "statutory undertaker", the person's undertaking,

(b) means, in relation to Scottish Water, its core functions within the meaning of section 70(2) of the Water Industry (Scotland) Act 2002 (asp 3),

(c) otherwise has the meaning given in the Town and Country Planning (Scotland) Act 1997.

Care should be taken to check the legislation itself for any amendments since the publication of this guidance document.

Local authorities should take time in advance of developing proposals for flood protection schemes and works, to consider any potential implications on statutory undertakers. If a local authority considers consent is being withheld unreasonably in relation to proposed flood protection works, they can apply to the Scottish Ministers in the event of a dispute, their decision being final, to determine whether consent has been withheld unreasonably.

In some circumstances it may be advisable to agree enabling contracts with statutory undertakers as a matter of course, e.g. for diverting or protecting utilities. These can help resolve issues at an early stage, as time can be an issue for more urgent flood protection projects, and hence may reduce construction costs and risk.

1.9 Section 59 - Clearance and repair works

Section 59 of the Act imposes a duty on local authorities to carry out works described in the schedule of clearance and repair prepared under section 18. Such works must contribute to measures detailed in the relevant Local Flood Risk Management Plan or do not affect the implementation of the measures in the plan.

Separate Guidance on Clearance & Repair is being prepared and will be available following publication of this guidance.

1.10 Section 60 - flood protection schemes

60 Flood protection schemes

(1) A flood protection scheme is a scheme by a local authority for the management of flood risk within the authority's area.

A flood protection scheme is a scheme by a local authority for the management of flood risk within the authority's area. They may also be undertaken by local authorities working jointly for the management of cross-boundary flood risk issues. A local authority may include in a scheme any work which it considers will contribute to the implementation of current measures described in any relevant LFRMP, or will otherwise manage flood risk in its area without affecting the implementation of any relevant LFRMP. The Act does not authorise the carrying out of operations in contravention of any limiting provision expressed in any other enactment and in particular those listed in section 58 without the consent of the statutory undertaker.

Specific guidance on the promotion of flood protection schemes is provided in Chapter 2.

1.11 Contents of a flood protection scheme

60 Flood protection schemes

(2) A proposed flood protection scheme must-

(a) contain a description of the operations the local authority proposes to carry out,

(b) include such maps, plans and specifications as may be specified by regulations by the Scottish Ministers,

(c) state how the operations will contribute to the implementation of current measures described in any relevant local flood risk management plan, and

(d) inasmuch as they will not so contribute, state the reasons why the local authority considers carrying them out will not affect the implementation of those measures.

(3) Schedule 2 makes further provision about the making of flood protection schemes.

(4) The Scottish Ministers may by order amend schedule 2 so as to modify the procedure for making flood protection schemes.

(5) Before making an order under subsection (4), the Scottish Ministers must consult-

(a) every local authority,

(b) such bodies appearing to them to be representative of the interests of local authorities as they consider appropriate,

(c) SEPA,

(d) Scottish Natural Heritage,

(e) Scottish Water,

(f) the National Park authority for each National Park, and

(g) such other persons as they consider appropriate.

Section 60 (2) sets out what a proposed flood protection scheme must contain, with further requirements set out in regulation 11 of the Flood Risk Management (Flood Protection Schemes, Potentially Vulnerable Areas and Local Plan Districts) (Scotland) Regulations 2010 (the "2010 Regulations").

Further provision about the procedures for making of a flood prevention scheme is set out within schedule 2 to the Act.

The Act establishes a framework for new statutory procedures which local authorities must apply when considering a proposed flood protection scheme. The 2010 Regulations supplement this with more detailed provision for particular aspects of those procedures. The purpose of these Regulations is to:

• establish the procedures for assessing the environmental impact of flood protection schemes.
• prescribe the documents that must form part of a flood protection scheme.
• make further provision about the procedures to be followed for the approval of flood protection schemes.

These procedures refine the provisions that existed under the 1961 Act with the aim of ensuring the procedures can continue to be followed by local authorities and the public in a fair and consistent manner across Scotland.

A flood protection scheme is promoted by the local authority, and confirmed under the Act by the local authority or, in certain circumstances, by Scottish Ministers.

The 2010 Regulations specify the maps, plans and specifications that a proposed flood protection scheme must, as a minimum, include. This is to ensure that the public have sufficient information to be able to ascertain the extent to which their land may be affected by a proposed scheme. The mandatory requirements for inclusion in such a scheme are as follows:

• a statement of how the operations will contribute to the implementation of current measures described in any relevant LFRMP, OR a statement of the reasons why it considers carrying them out will not affect the implementation of the LFRMP
• a description of the extent and scale of the proposed operations and a description of the land which the local authority considers may be affected by those operations and any land on which the local authority would require to enter whether temporarily or otherwise for the purpose of carrying out the operations, all by reference to maps, plans and specifications, an
• an estimate of the cost of carrying out the proposed operations.

It is imperative that flexibility is built into the description of the operations and land affected, so as to allow for foreseeable changes as the scheme is progressed. This will allow the authority to make allowance for uncertainty in terms of detailed design and manage risk to the delivery of the scheme. For example, it is easier to reduce the amount of land affected when, for example, the detail design is complete. However, the assessment made at the time of describing the operations should be proportionate, transparent and fair.

The 2010 Regulations also make provisions about the making and withdrawal of objections, deemed planning permission and the service of notices. More detailed guidance on the procedure to follow when taking forward a scheme is set out in Chapter 2.

1.12 Assessment of environmental effects

Prior to undertaking flood protection works or giving notice of a flood protection scheme, and at subsequent stages in the process the local authority has a duty to consider the environmental impact of the proposed works or scheme.

There is EU legislation in the form of Council Directive 85/337/ EEC on the assessment of the effects of certain public and private projects on the environment ("the Environmental Impact Assessment Directive") which requires that, before consent for certain public and private projects is given, an assessment is made of their effects on the environment. Flood protection works are one such project. Prior to the Act, the necessary environmental assessment for flood prevention works was carried out as part of the planning process and that remains the position where flood protection works are carried out other than as part of a scheme. Under the Act, however, confirmation of flood protection scheme carries deemed planning permission.

Part II of the 2010 Regulations ensures the necessary environmental assessments are undertaken as part of the scheme process. It ensures that the environmental impact of a proposed flood protection scheme is considered at the appropriate junctures (prior to confirming a flood protection scheme with modifications) so ensuring compliance with the EIA Directive. It makes provisions about the consideration to be given to the likely environmental effects of the operations contained in the scheme before a scheme is promoted or confirmed under paragraph 4, 7 or 9 of the 2010 Regulations.

It ensures that an environmental statement is prepared for schemes that are likely to have a significant effect on the environment, and that the public are notified of the existence of any environmental statement and have the opportunity to make representations. The 2010 Regulations requires the 'competent authority' (which would be the local authority promoting a flood protection scheme) to consider any such representations before making decisions to confirm a scheme.

1.13 Environmental impacts and other considerations

In relation to a scheme, the 2010 Regulations require that, where a scheme is considered likely to have a significant effect on the environment, the local authority must prepare an environmental statement in consultation with the consultative bodies (as defined in regulation 2).

In the event of a local authority taking the view that a proposed flood protection scheme is NOT likely to have a significant effect on the environment, they should request a screening opinion from each of the consultative bodies in accordance with regulation 5 of the 2010 Regulations. The consultative bodies are currently SEPA, Scottish Natural Heritage, Scottish Water and any planning authority whose district is likely to be affected by the proposed scheme. The results of the determination of the screening opinions will determine how the local authority should proceed thereafter. It is expected that due to the nature of flood protection work, in the majority of cases local authorities will need to prepare an environmental statement.

In relation to flood protection works, the necessary environmental assessments should be carried out as part of the planning process. In relation to works that may be considered permitted development and are considered not to require planning, the environmental impacts could still be significant. In these circumstances local authorities should follow the same procedure for assessing the impacts as for flood protection works that do require planning permission to ensure the requirements of the EIA Directive are met.

The details of what should be included in an environmental statement are set out in Schedule 2 to the 2010 Regulations.

It is likely that planning staff in local authorities will have experience of dealing with environmental assessments and requirements in relation to a variety of different projects. It may be beneficial for flood risk management teams to consult with planning colleagues on these matters.

In addition, it is likely that both flood protection works and flood protection schemes will require a separate authorisation, most likely as a licence from SEPA under CAR. SEPA has guidance available here: Early consultation should be undertaken with SEPA as this may prevent key issues that could potentially cause delays at a later stage.

In addition, where there is a potential impact on sites designated for the protection of habitats or species, an appropriate assessment, under the Conservation (Natural Habitats &c.) Regulations 1994 (as amended in Scotland) must be carried out by the 'competent authority' before taking forward any flood protection works or giving its consent to confirm a scheme and in both circumstances must take into account the advice of SNH. The competent authority for confirmation of a scheme under the Act is the confirming authority, which, in most cases, will be the local authority. SEPA is the competent authority for CAR.

Consents that may require applications to be made on behalf of others, e.g. a timber extraction licence under the Timber Extraction Regulations should be identified and considered.

Other statutory consents may be required where flood protection works or scheme operations may impact for example on listed buildings or on protected species where Historic Scotland and SNH have an interest. Consents from statutory undertakers for operations as part of flood protection works or schemes that affect their apparatus may also be required - see Section 1.8.

As many of the stakeholders are common to each approvals process, as many applications for consent as possible should be run in parallel so that each statutory consultee has sufficient information to make an informed contribution to the decision making process. It is, therefore, expected that the local authority will develop its preferred scheme or flood protection works in close consultation with the relevant Planning Authorities, SEPA, SNH, Historic Scotland and the statutory undertakers to identify all associated issues and concerns through early and regular engagement.

For a successful outcome, it is essential that flood protection works and schemes enjoy a broad consensus of support from the community affected. Of course, those whose property would be directly affected by the proposals must be closely consulted however flood protection works and schemes can have wider impacts on the community and the views of other community interests and organisations should be taken into account as the proposals are developed. This engagement will involve the local authority's own staff as well as its designers, most often private consultants, and the resource needs should not be underestimated. The nature of this engagement will be influenced by the scale of the proposals, the nature of the community affected and the local authority's consultative practices.

1.14 Planning Permission

Flood protection schemes have deemed planning permission under the Act, see also Section 1.15.

Flood protection scheme operations that constitute development will, pursuant to section 57(2B) of the Town and Country Planning (Scotland) Act 1997, be deemed to have been granted planning permission under the Act.

Non-scheme flood protection works are likely to require planning permission depending on the nature, scale and location of the works. In such cases, if planning permission is required, local authorities should follow the appropriate procedure for securing planning permission. Early discussions with the planning authority should be held to establish the most appropriate way to proceed.

The views of the planning authority should also be taken into account as part of the consideration of the application for confirmation of a scheme. In most cases, the local authority will also be the relevant Planning Authority and will have other statutory functions which may be affected, e.g. education authority and roads authority. In proposing a scheme, any local authority is deemed to have considered the impacts of the proposals on these interests and so there is no statutory requirement to serve notice on itself.

It is important to ensure the planning authority is supportive of the proposals, to avoid the use of the scheme process to raise objections of a planning nature to the work. In effect local authorities may benefit from following the normal planning guidance when taking forward schemes to ensure issues like the aesthetics of the project are properly taken into consideration and thus avoiding subsequent valid objections.

It would be particularly helpful if land identified for flood protection work (and schemes) was identified as such in the local development plan.

Where National Park Authorities may be impacted by flood protection works and schemes, contact should be made early in the process and effective engagement undertaken throughout the development of the Scheme. It may be beneficial to enter into a Memorandum of Understanding with National Park Authorities over how to proceed in these circumstances where the National Park is also the planning authority.

Confirmation of a scheme under the Act carries deemed planning permission, however a request must be submitted to Scottish Ministers for deemed planning permission to be granted (see Section 1.15). A key element to take into consideration is therefore that the Scottish Ministers may attach conditions to the deemed planning consent, which should always have been anticipated. Local authority and National Park planning specialists are likely to be well placed to provide advice on the type of conditions that should already have been included.

1.15 Deemed planning permission for scheme work

Section 65 of the Act inserts a new section 57(2B) into the Town and Country Planning (Scotland) Act 1997.

65 Deemed planning permission for scheme work

In section 57 of the Town and Country Planning (Scotland) Act 1997 (c.8) (deemed planning permission), after subsection (2A) insert-

"(2B) On-

(a) confirming a flood protection scheme under paragraph 7(4) of schedule 2 to the Flood Risk Management (Scotland) Act 2009 (asp 6) in respect of any operation which would constitute development, or

(b) a local authority confirming such a scheme under paragraph 4(1) or 9(1) of that schedule, the Scottish Ministers must direct that planning permission for that development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.".

This provides that once a flood protection scheme is confirmed (whether by the local authority or the Scottish Ministers), the Scottish Ministers are to direct that any necessary planning permission is deemed to be granted, subject to any planning conditions which Ministers may specify - see above. Regulation 14 the 2010 Regulations sets out the procedure to be followed when a local authority asks the Scottish Ministers to make a direction about deemed planning permission for a confirmed scheme. Regulation 14(2) specifies the documentation that should be included in the written request, for deemed planning permission to be granted. These include:

a) a brief description of the nature and purpose of the confirmed scheme;

b) a copy of the confirmed scheme;

c) a summary of the scheme documents; and

d) a summary of the environmental statement (if any).

Local authorities should also include any other material which they consider is relevant to the grant of deemed planning permission.

1.16 Orders under the Land Drainage (Scotland) Act 1958

There are a significant number of Land Drainage Orders still in place across Scotland. It can be difficult to identify if any will be affected by proposed flood protection schemes or works as land owners and occupiers may be unaware that they are still in place.

Where the proposed operations materially alter any drainage works or protective works authorised by an improvement order made under the Land Drainage (Scotland) Act 1958 (the '1958 Act'), the Scheme must include proposals to vary the improvement order so as to remove the obligation on the authorised persons of maintenance in respect of such works so altered. Where the proposed operations are to be carried out on any land affected by an improvement order, under Section 61(2) the scheme may include proposals to vary or revoke the improvement order but may not include proposals to impose any new obligations on the authorised persons in respect of the operations described in the scheme.

A local authority promoting flood protection works or schemes should consider whether these would affect, or be affected, by improvement orders made under the 1958 Act. Given that the records of such orders in the National Archives may not be particularly detailed or easily searchable, this is likely to involve a degree of specific consultation with the local owners of agricultural land to establish whether any improvement orders are affected by proposed schemes. If for example, there is an artificial embankment which protects agricultural land from the river, there may well be a land drainage order in place. It is important to record what has been done to establish whether there is a land drainage order in place. Having established that there are, or may be, orders affected by the works, the local authority should consider the advantages of the additional powers provided for promoting a scheme, which allow orders to be varied. Further details on how an order can be varied are set out in Appendix D - Land Drainage Orders.

1.17 Repeal of the Flood Prevention (Scotland) Act 1961

By virtue of the Flood Risk Management (Scotland) Act 2009 (Commencement No. 2 and Savings Provisions) Order 2010 ( http://www.legislation.gov.uk/ssi/2010/401/contents/made) the 1961 Act was revoked on 24 December 2010. However, under article 5 of the same Order, certain provisions relating to confirmation, powers of entry, compensation, Crown rights, interpretation and powers in the First Schedule to the 1961 Act continue to have effect as they had effect immediately before that date in the case of any flood prevention scheme where a notice of intention to submit a scheme for confirmation was first published before 24 December 2010.

Selkirk FPS - Tree clearance

1.18 Land

1.18.1 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. 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.

Further consideration of those with an 'interest in land' or 'land affected' is given in Appendix E - 'Interest in Land' and 'Land affected'.

1.18.2 Powers of entry

79 Powers of entry (Part 6)

(2) Any person authorised by a local authority is entitled to enter-

(a) any land for the purposes of preparing, reviewing or updating a map under section 17 ,

(b) any land for the purposes of assessing a body of water under section 18,

(c) any land for the purposes of preparing a local flood risk management plan under section 34,

(d) any land for the purposes of preparing a report under section 37 or 38,

(e) any land on which scheme operations are to be carried out, for the purposes of carrying out the operations or of executing any temporary works in relation to them,

(f) any land for the purpose of carrying out flood protection work on the ground mentioned in section 56(1)(b),

(g) any land for the purposes of maintaining flood protection work carried out

(i) under section 56, or

(ii) in accordance with a flood prevention scheme confirmed under section 4 of the 1961 Act,

(h) any land for the purposes of carrying out works under section 59, and

(i) any land for the purposes of determining whether, and if so in what manner, any function conferred by or under Part 4 is to be exercised.

(3) In subsection (2), paragraphs (c) and (d) apply only where the local authority is a lead authority within the meaning of section 34.

Section 79(2) creates powers for local authorities to enter land for the purposes of carrying out some of their functions under Part 4 of the Act, as listed. The power to enter land includes a power to enter buildings because "land" is defined in the Interpretation Order ^{[ 2]} to include buildings and other structures. It is worth noting that section 79(1) gives similar powers to SEPA to enable them to carry out their responsibilities under the Act.

The powers of entry available to local authorities are wide, permissive and focused on the intended use under the Act. It allows them to enter land on which flood protection scheme operations, temporary works, emergency flood protection work, maintenance operations or clearance and repair works are to be carried out under Part 4 of the Act and for the purposes of maintaining flood prevention schemes constructed under the 1961 Act. Land may also be entered for the purposes of determining whether any function conferred by or under that Part is to be exercised. Any land adjacent to it, and rights to survey and examine land are also conferred under section 81(1) - see below.

If possible, the local authority should discuss access with landowners, occupiers and other people affected prior to entry, including any repair and reinstatement work that will be undertaken. The local authority should specify what the land is going to be used for. When taking access, the local authority should set out how damage will be minimised and what actions will be taken to repair any damage. It is important that a plan for such actions is prepared and that a record of any such discussions is kept, including the decision making process and any actions taken, in order to deal with any future claims for compensation. As with all projects requiring land access on a temporary basis, good pre-entry, construction and post-construction photographs and survey records should be taken and held with copies issued to all affected parties.

CASE STUDY

B712 - Merlindale Bridge Flooding

On the 30 December 2013 flow in the upper Tweed was the highest recorded since gauges were installed in 1986. One of the consequences of this high flow was that an agricultural flood bank protecting haughland upstream of Merlindale Bridge on the B712 road was overtopped along its entire length and was breached at one end. Flood waters flowed across the road affecting property alongside and downstream of the road. When the high flows subsided the road remained flooded and access to properties was cut off for a number of days. Additional flooding occurred due to the breach in the flood bank. Flooding of the road had significant safety implications and necessitated long detours for road users.

A meeting to discuss how to remedy the situation was held on site. Scottish Borders Council, SEPA, SNH, Tweed Commissioners, Community Councillor, the landowner and his agent were in attendance. The landowner's preferred remedy was to repair the breach and upgrade the entire agricultural flood bank to significantly reduce the risk of flooding. Scottish Borders Council said that they could not justify upgrading the entire agricultural flood bank and that their concern was to reduce the risk of flooding to the public road and the effect on residential properties. The landowner made the suggestion that access to land would not be permitted unless upgrading of the entire floodbank was considered. At this point Scottish Borders Council advised that they considered this to be an emergency situation and that they had powers under the Flood Risk Management (Scotland) Act 2009 to gain access to the site to undertake emergency works. The discussion continued and it was agreed that Scottish Borders Council would undertake an emergency repair of the breach in the flood bank and undertake an option assessment to determine the most effective solution to mitigate the flood risk to the road and residential property

This case study demonstrates the benefits of having powers of entry in the FRM Act.

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

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.

A sheriff or justice of the peace may grant a warrant to any person entitled to exercise a power of entry where there are reasonable grounds in relation to the land concerned. Local authorities should ensure the warrant is served on the right person and that all the actions and decisions made are recorded.

CASE STUDY

Asbestos surveys of buildings

In developing a scheme, several buildings were identified as needing to be demolished to make room for the flood protection works. Discussions and land negotiations, including compensation, were proving contentious as the land owner had not taken the offered opportunities to object formally to the scheme. Numerous and recorded attempts were made to make arrangements with the land owner for local authority surveyors to gain access to buildings to undertake an asbestos survey. The landowner had considered that the access was to be gained to allow a valuation survey to be undertaken, which was not the case, and refused access. The local authority therefore proceeded to seek a warrant from the Sheriff so that access could be gained to undertake the asbestos survey. No other survey was to be undertaken in gaining access. The Sheriff granted the warrant. Unfortunately, despite the warrant being issued, the land owner still refused to allow access to the buildings. Access using reasonable force in the presence of a police officer was subsequently taken to allow the asbestos survey to be undertaken. However, the land owner remained dissatisfied with the repairs made to secure his property by the council's contractor. This resulted in an agreement to pay the land owner the cost of alternative locks.

This case study provides a cautionary tale on the care that should be taken in exercising the right of entry via a warrant, particularly where reasonable force to gain access is required. Close collaboration with legal and estates/property colleagues, as well as Police Scotland is required. Preparations for reputational risk should also be expected and planned.

Whilst a warrant allows the person authorised to use reasonable force it does not allow the use of force against individuals (see subsections (1) and (4)(a)). Local authorities should take care when exercising reasonable force and be clear about who is going to be on site when exercising powers of entry.

Subsections (2) and (3) set out the circumstances in which a warrant may be granted. These require the sheriff or justice of the peace to be satisfied by evidence on oath that there are reasonable grounds for seeking entry to the land, that permission to enter has been refused or a refusal is reasonably expected, the land is unoccupied, or where the case is urgent. Where the case is not urgent and a warrant is sought on the basis that permission to enter has been refused or a refusal is expected then the applicant must first have given notice that they intend to enter the land and the notice period must have expired. The notice periods are set out in section 81(3).

Subsection (5) makes 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.

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.

Section 81 supplements sections 79 and 80 and details the notices that are required to be served, including advance notice, an explanation of what the purpose of the taking access is and a description of what persons, materials and equipment will be used. Subsection (4) requires that, except in the urgent cases set out in subsection (5), people entering land under section 79 (with or without a warrant) may only do so at a reasonable time.

Subsection (2) entitles those entering land under section 79 (with or without a warrant) to take other persons, materials and equipment onto the land. This includes vehicles. The subsection also enables them to do anything else reasonably required to fulfil the purpose of entering the land.

Subsections (3) sets notice periods which must be complied with except in the urgent cases defined in subsection (5). A 7 day notice period applies where the power under section 79 is to be exercised without a warrant in order to enter a house or to take heavy equipment onto land (subsection (3)(a)). "Heavy equipment" and "house" are defined in subsection (7).

A 24 hour notice period applies where the power under section 79 is to be exercised without a warrant, without entering a house and without taking heavy equipment onto the land (subsection (3)(b)). A 24 hour notice period also applies to all cases where the power under section 79 is to be exercised with a warrant (subsection (3)(b)).

In all cases, subsection (6) requires those entering land to be able to produce written evidence that they have been authorised to enter.

1.18.3 Compensation

82 Compensation

(2) A local authority must compensate any person who has sustained damage in consequence of-

(a) scheme operations carried out by or on behalf of the local authority,

(b) the subsequent maintenance of any such operations by or on behalf of the local authority,

(c) any other exercise of the power in section 56(1),

(d) the carrying out of works under section 59,

(e) the variation or revocation of an improvement order under section 61, or

(f) the exercise of a right of entry conferred by section 79(2) (including the ancillary rights mentioned in section 81(1) and (2)).

Section 82(2) obliges local authorities to compensate any person who has sustained damage as a result of scheme operations, subsequent maintenance by or on behalf of the local authority, clearance and repair works, the variation or revocation of an improvement order or the exercise of a right of entry.

CASE STUDY

The River Ness Flood Alleviation Scheme was promoted under the Flood Protection (Scotland) Act 1961 and the Order was made in 2009. Works commenced in 2013. Development occurred in the intervening period. The issue of entitlement to compensation arose as it would appear that the developer had placed themselves in this position. A debate ensued and legal opinion was sought. The legal opinion was:-

The proper interpretation of s.11(1) of the 1961 Act is that the claim to compensation arises "in consequence of the carrying out of any flood prevention operations". It is not the making or the confirming of the Scheme which gives rise to a claim for compensation, but rather the actual carrying out of the flood prevention operations. In other words, the practical blighting effect of the making or confirmation of a flood prevention scheme does not give rise to any compensation under the 1961 Act. That may well reflect the fact that schemes may be made but unless funding is available, such schemes may never be put into effect. In that event, no compensation is payable under the 1961 Act.

It is understood that the compensation issues are identical in the 2009 Act.

It is the 'consequence of carrying out any flood prevention operations' that is significant. So although the order came into effect in 2009 and the development occurred after this date, compensation became applicable as the flood prevention operations occurred after the development.

This case study demonstrates that, following the making of a Scheme under the 2009 Act, the local authority should manage developments that may occur in proximity to the Scheme.

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. See Appendix E - 'Interest in Land' and 'Land affected' for the extent to which a person's interest in land may be considered.

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 may be payable to businesses that are affected by the construction works. See Appendix F - Example of VOA correspondence compensation.

Flooding on the River South Esk and River Street, Brechin

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.

Subsection (2) places certain limits on the right to compensation and requires notice of any claim to be given to the local authority within the specified periods. It should be read with subsection (3).

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).

Subsection (4) provides that any disputes over compensation under section 82 are to be determined by the Lands Tribunal for Scotland.

83 Compensation: supplementary

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

1.18.4 Acquisition of land

The Act gives local authorities significant and wide ranging powers to put in place flood protection schemes, however there may be times when the most appropriate option is to purchase a particular section of land or property, for example when constructing an embankment on agricultural land. Local authorities need to consider where ownership is best placed to be. This may require a whole life examination and consideration of factors such as future maintenance, access needs, asset management strategies and costs.

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,

(b) with the authorisation of the Scottish Ministers, compulsorily acquire land (other than Crown land within the meaning of section 91(7)(a)) which it requires for the purpose of carrying out scheme operations.

(2) The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c.42) applies in relation to an acquisition under subsection (1)(b) as if that provision were contained in an Act of Parliament in force immediately before the commencement of that Act.

Section 66 enables local authorities to acquire land which they require to exercise functions under Part 4 by agreement. It also empowers local authorities, with the authorisation of the Scottish Ministers, to acquire land by compulsory purchase in connection with operations under a flood protection scheme. Subsection (2) applies the procedure contained in the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 to any compulsory purchase by a local authority in connection with a scheme.

Crown land as defined in section 91(7) is excluded from the power of compulsory acquisition.

1.18.5 Abandonment, retreat and long term management

Historically, local authorities have not normally acquired land as part of flood protection activities, but have compensated affected parties. For some work considered to be of strategic importance and likely to be by exception, an authority should consider whether acquisition of the land by agreement, or compulsorily, would more appropriately serve the public interest than acting through a combination of a statutory scheme and land management agreements.

For example abandonment of high risk properties, managed retreat from the sea or constructing or altering a reservoir for flood storage.

CASE STUDY

The Brechin Flood Prevention Scheme 2010 was confirmed under the 1961 Act, however, the consideration of acquiring land are applicable to 2009 Act schemes.

Several parcels of land were acquired through agreement with compensation only paid to other affected landowners, where acquisition was not appropriate.

The rear sections of a series of gardens are to be cut off by a retaining wall to a flood embankment. The wall reduces the overall land take but forms part of the permanent scheme works, so it was deemed appropriate to take ownership of the land beneath the wall and flood embankment.

Other industrial use land was purchased as the land as the previous usage would be sterilised and the land acquisition cost is the equivalent to the compensation payment. Whilst the expansion of the council's land interest is not a desired outcome and the ability to maintain the flood scheme would be perfectly possible through the relevant Act, the option to acquire land resulted in a smoother agreement with the affected parties, which should not be underestimated.

1.19 General

1.19.1 Registers of Flood Protection / Prevention Schemes

Sections 62 and 63 have not yet come into effect. Further guidance will be provided at an appropriate juncture, i.e. once regulations under section 64 are in place.

1.19.2 Damage to certain flood protection work

Local authorities should have in place a programme of operation and maintenance of flood protection schemes and works, as any damage may result in failure during a flood event.

69 Damage to certain flood protection work

(1) Any person who intentionally or recklessly damages any-

(a) barrier, embankment or other work for defence against flooding constructed or otherwise created by a local authority-

(i) in exercise of any of its functions under this Part, or

(ii) in accordance with a flood prevention scheme confirmed under section 4 of the 1961 Act, or

(b) apparatus ancillary to such work, commits an offence.

It is a criminal offence, under Section 69(1) of the Act, for any person to intentionally or recklessly damage any work for flood defence created by a local authority under this Part, or any ancillary apparatus.

This includes owners and lawful occupiers of the land on which the work is located, but excludes a person carrying out flood protection work. Flood protection schemes under the Act and any flood prevention scheme works carried out under the 1961 Act are also covered by this subsection.

69 Damage to certain flood protection work

(3) It is a defence to a charge in proceedings for an offence under subsection (1) that the person did not know and had no reasonable means of knowing that the works or apparatus were for defence against flooding.

Subsection (3) provides that, where a person did not know and had no reasonable means of knowing that the works or apparatus were for defence against flooding, this is a defence to a charge in any proceedings under subsection (1). Local authorities should raise awareness of the presence of flood protection works through signage and in correspondence relating to scheme construction to reduce the risk of people damaging works without realising the consequences of their actions.

A person who commits an offence under Section 69(1) is liable on summary conviction to imprisonment (of up to 3-6 months) or a fine, as detailed in sub-section (4).

1.19.3 Recovery of expenses

Section 67 enables a local authority to recover any expense incurred by it in repairing or reinstating flood protection work it has put in place, including any flood prevention scheme carried out under the 1961 Act, from the owner or occupier of the land, where that person's actions have caused the damage.

Recovering expenses can quite often be costly in their own right. However there may be circumstances where it is beneficial for the local authority to pursue cost recovery, particularly in seeking other parties to repair damage they have caused by their actions. Local authorities should consider the risks before proceeding to recover expenses.

Inaction is not an action. Inaction, such as not clearing vegetation or sediment, or repairing banks and defences, is not an 'action'. Expenses in undertaking such works of clearance and repair by the local authority would need to be borne by the local authority. Actions would include depositing vegetation or debris in a body of water that might cause or contribute to a blockage and increased flood risk.

1.19.4 Duty to carry out clearance and repair works

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).

Section 59 imposes a duty on local authorities to undertake the clearance and repair works described in the schedule prepared under section 18 of the Act, as long as the works contribute to the implementation of measures described in the relevant LFRMP or do not affect the implementation of those measures. The Scottish Government is to publish separate guidance on clearance and repair.