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

2. Guidance on taking forward flood protection schemes

2.1 Taking forward a flood protection scheme

In the past, schemes have not always been specified in a clear and unambiguous manner. To overcome this difficulty, the local authority should follow the Model Outline Scheme provided in Appendix A to ensure that the statutory requirements are met.

It is further advised that sound risk management principles are applied in taking forward a flood protection scheme, for which separate guidance should be sought.

2.2 General

Any scheme proposed before June 2016 must state that it will not affect the implementation of any relevant LFRMP. However, it is open to a local authority to expand this statement to reflect its current flood risk management strategy if available.

2.2 Flood protection schemes - checklist

Things local authorities should check have been completed before proceeding with a scheme:-

Local Flood Risk Management Plan - a scheme must state how the measures included in it will contribute to the implementation of any relevant local flood risk management plan and, if they will not contribute, demonstrate how this will not affect delivery of such a plan (for example, because there is no such plan or because it will be possible to carry out the scheme as well as the measures contained in the plan).

Local Authority Commitment - The project should be identified as a commitment in the local authority's own programme of work or financial plan. The whole life cost of the project including maintenance and insurance should be considered. The project should conform with the local authority procurement rules and others, e.g. EU. The arrangements for governance, including the need for council committee approvals and the use of officer delegated powers should be considered.

Governance

It is important that local authorities establish governance arrangements for considering and deciding upon Flood Protection Scheme submissions. No guidance is given in the Act as to how this is done, nor is there any time limit specified for determining FPS applications. Some local authorities may feel that the matter can be dealt with through their planning committees while others may prefer that it be considered by a higher level policy committee, special committee or even by full council. Whichever route is chosen, every effort should be made to minimise the potential for a conflict of interest and to ensure that the process is as independent, fair and transparent as possible.

In Aberdeenshire Council the determining body is the Infrastructure Services Committee and the approach adopted is similar to that used for the promotion of traffic orders. The Scheme is developed under the auspices of the Flood Team but the notification process and receipt/collation of objections is by the Legal and Governance Service. Thereafter, advice on objections including possible modifications, may be sought from the Flood Team, but the report for committee on the proposals and accompanying representations is prepared by the Legal Team. Any subsequent referral to Scottish Ministers, the administration of a hearing and notification of decisions would also be arranged by the Legal and Governance Service.

The time required for assessing and determining an application is likely to be significantly influenced by the level of objection, time for discussion of potential modifications, and the complexity of the Scheme. However, for relatively straightforward schemes, the time from receipt of objections to consideration by committee should ideally not exceed 3 months.

Options Appraisal - Before proceeding with a scheme it is expected that local authorities have considered all the available options and taken into account both the costs and benefits of the proposed scheme through a robust and planned option appraisal process.

Separate guidance on the development of a preferred scheme has been provided under The Flood Risk Management (Scotland) Act 2009 Flood Protection Schemes - Guidance for local authorities, Chapter 5, Project Appraisal: assessment of economic, environmental and social impacts (The Scottish Government, 2012).

Fact gathering and checking exercise - local authorities should identify relevant stakeholders, identify any designations or legal obligations associated with proposed scheme, identify any other constraints and risks, historic events and carry out soil surveys etc. and gather other key data, and give consideration to the findings.

Environmental Impact Assessment ( EIA) - As any flood protection work or scheme is likely to be taken forward to achieve a positive environmental effect in the form of reduced flood risk, it is likely that an EIA will be required. Local authorities should consider whether the work has links to other projects, because if so an expanded EIA may be required. More details on EIAs are set out later in this document, see section 1.12, and in legislation.

Consider the need for a Compulsory Purchase Order ( CPO) - In certain circumstances, as an alternative to taking forward a formal scheme, local authorities may wish to use a CPO to support flood protection work, e.g. buying a property.

Build relationships with key stakeholders - local authorities should set up a stakeholder group, including statutory bodies and other key organisations and groups to help keep them fully informed on scheme proposals and get their input. Engagement with people who might be affected in both a negative or positive way early on, to avoid conflict, access issues and drawn out legal proceedings should also be undertaken.

Exhibition - Local authorities should hold exhibitions for the public on proposals at key stages - see Appendix I for example.

Once local authorities consider they have undertaken sufficient preparatory work, they can then proceed with the development of a flood protection scheme.

Selkirk FPS - Riverbank construction work

2.3 Land

The scheme must show all land affected by the operations and, if applicable, all land on which entry will be required (whether temporarily or otherwise) for the purposes of carrying out the operations. The former includes the latter together with any other land which may be designed as a flood relief area or where the operations affect the flow of water so as to increase the extent or depth of flooding. The land should be clearly defined on the plans by distinctive types of line or marking outlining the area, or areas, concerned. The line or marking should be indicated by legend so that it is not confused with other features on the plans.

It would be prudent for any access route over private roads or land to be included in the land on which entry is required, e.g. to avoid creation of "ransom strips". Normally, operations are permanent works but the extent of the land required for entry should take into account any temporary works required to carry them out.

Generally, the land which will be affected by the operations will coincide with the land upon which entry is required for the purpose of carrying out the operations. In most cases therefore a common limit can be used and the legend can read "Limits of land affected by the operations", and of "land upon which entry is required for the purpose of carrying out the operations".

Example of Line Marking Affected Land

The River Ness Flood Alleviation Scheme was promoted under the Flood Protection (Scotland) Act 1961 and the plans include both horizontal and vertical limits of deviation, and also included limits of land affected by the operations.

Horizontal Limits of deviation are shown on the plans thus:-

Vertical Limits of Deviation shown thus:-

Selkirk FPS - Limit of Land Affected

It should be noted that the local authority's rights of entry on the land shown as being required for the purposes of carrying out the scheme expire once the operations, including reinstatement of the land disturbed, have been carried out. Entry onto land for the purposes of maintenance of the works can be gained by notice under sections 79(2)(g) and 81(3) (see Section 1.18.2) or otherwise by agreement with the owner of the land concerned. It would be prudent to establish future access arrangement for maintenance in advance and ideally considered as part of the scheme operations, i.e. scheme should be designed with access in mind.

2.4 Description of the operations

It is imperative that flexibility is built into the description of the operations and land affected, so as to allow for changes as the scheme is progressed. See section 1.11 for further details.

All locations, place names, features and works referred to in the text of the scheme must be shown on the plans. The use of trade names to identify properties should be avoided as businesses may cease trading or relocate to other premises and this could lead later to uncertainty about the terms of the scheme. Labelling each operation in the text of the Scheme assists with referencing the operations on the plans.

Sufficient cross-sections of the operations should be shown to illustrate the scheme.

A broad description of the operation should contain sufficient information to allow a layperson to understand the scale and nature of the proposed works and determine the impacts the operation would have on his/her interests.

Reinstatement of any land disturbed is considered an essential part of carrying out an operation and does not need to be included in the operation description. However, it would be prudent to include a note to that effect in the legend in the plans.

Where there are operations which could not be reasonably inferred by a layperson as an essential part of an operation, for example a sheet piled cut-off or environmental enhancement or mitigation measure, these should be included in the descriptions of operations as appropriate.

There is no statutory requirement to include the diversion of any apparatus of a statutory undertaker in a scheme. This work is carried out by or on behalf of the statutory undertaker under its own statutory powers, not the local authority under the Act. It may be prudent to include a note to that effect in the legend of the plans.

The operations should be depicted on the relevant plans and labelled where appropriate or shown by individual colour or hatching and referred to by legend on these plans as "Operations". This practice complies with the requirement of the Act and allows the operations to be depicted more clearly on any cross sections.

It should be noted that "plans" may include sections etc. and the word "specifications" should not be interpreted to mean exclusively documents such as technical specifications or schedules of quantities. Sufficient information can normally be shown on the scheme plans and in the scheme documents. Only sufficient information as is required for the purpose of the scheme need be shown.

The maps and plans must be at an appropriate scale to enable interested persons to identify their land and whether their land will be affected by the operations.

2.5 Variation or Revocation of an Improvement Order (where applicable)

Where relevant, the scheme must describe any drainage works or protective works in an improvement order under the Land Drainage (Scotland) Act 1958 which would be materially altered by the operations and describe the proposals to remove the obligations on the authorised persons for maintenance of these works - see section 1.16 of this guidance. The scheme may otherwise include proposals to vary or revoke an improvement order where any operations are on land affected by an improvement order.

2.6 Cost

The estimated cost of carrying out the operations is to be contained within the text of the scheme. Only a statement of the cost is required. Detailed estimates of cost need not be included. However, it would be prudent for appropriate records to be kept of the methods used and the build-up of such a cost.

2.7 Plans

Plans mentioned in the scheme must have a signed statement on the face of the plan that "this is the plan marked *** referred to in the named scheme".

2.8 Signatures

It is not a requirement of the 2009 Act for local authorities to have the scheme signed or even sealed, as was the case for 1961 Act schemes, however, they may wish to continue this practice. In any case the local authority should retain a copy as a "document of record" on promoting the scheme and at subsequent stages under paragraphs 4, 5, 7 and 9 of schedule 2.

2.9 The statutory process

An overview of the statutory process for confirmation of a scheme is shown in 4.1 Appendix A - Flow chart of legal process of Flood Protection Scheme. The process begins with notification and publication of the scheme.

South West Inverness Flood Relief Channel under construction

2.10 Notification of flood protection schemes

Notification

1(1) The local authority must give notice of a proposed flood protection scheme-

(a) in at least one newspaper circulating in the local authority's area (which must, if practicable, be a local newspaper),

(b) where any of the proposed operations are to take place in another local authority's area, in at least one newspaper circulating in that area (which must, if practicable, be a local newspaper),

(c) in the Edinburgh Gazette,

The requirements for newspaper advertisements of a proposed flood protection scheme by a local authority are set out in paragraphs 1(1)(a) to (c) to schedule 2 of the Act.

Notification

1(1) The local authority must give notice of a proposed flood protection scheme-

(d) to every person known to the local authority-

(i) to have an interest in any land on which the proposed operations are to be carried out, or

(ii) whose interest in any other land may be affected by any of the proposed operations or by any alteration in the flow of water caused by any of the proposed operations,

(e) where any of the proposed operations are to be carried out on land affected by an improvement order, to each of the authorised persons,

(f) to the following persons-

(i) SEPA,

(ii) Scottish Natural Heritage,

(iii) any local authority in whose area any of the proposed operations are to be carried out,

(iv) where any of the proposed operations are to be carried out in a National Park, the National Park authority for that National Park,

(v) any responsible authority whose flood risk related functions may be affected by any of the operations or by any alteration in the flow of water caused by any of the operations (insofar as the authority has not been notified under another provision of this sub-paragraph),

(vi) any statutory undertaker whose statutory undertaking may be affected by any of the operations or by any alteration in the flow of water caused by any of the operations,

(vii) any other person specified by order by the Scottish Ministers,

Sub-paragraphs (1)(d) to (f) require a local authority to send direct notification of a proposed scheme to those with an interest in land affected, the authorised persons in respect of any land covered by an improvement order under the Land Drainage (Scotland) Act 1958 and a number of specified persons sub-paragraph (1)(f)(vii) enables the Scottish Ministers to specify additional consultees by order. See Appendix E - 'Interest in Land' and 'Land affected' for the extent to which a person's 'interest in land' or 'land affected' may be considered.

Detailed provision is also made in Regulation 15 of the 2010 Regulations about the service of notices

(2) The local authority must also display a notice of the proposed flood protection scheme in a prominent position in the locality in which the operations are to be carried out.

Sub-paragraph (2) requires the local authority to display notice of the proposed scheme in a prominent position in the locality.

(3) A notice given under sub-paragraph (1) or (2) must-

(a) contain a general description of the effect of the proposed scheme including-

(i) a summary of the operations to be carried out, and

(ii) a summary of the benefits which the local authority considers are likely to be derived from carrying out the operations,

(b) state where and at what times the scheme documents can be inspected in pursuance of paragraph 2, and

(c) state that objections can be made about the proposed scheme to the local authority before the expiry of the period of 28 days beginning with the date notice is first published under sub-paragraph (1)(a).

Sub-paragraph (3) sets out the required contents of each notice of the proposed scheme, whether published in a newspaper, sent directly to a person entitled to individual notification or displayed in the locality.

(4) Notices under sub-paragraph (1)(d) and (f) and sub-paragraph (2) must be given or, as the case may be, displayed no later than the date that notice is first published under subparagraph (1)(a).

Sub-paragraph (4) requires notice to be given to those with an interest in land and the specified consultees, and to be displayed in the locality, no later than the date that notice is first published in local newspapers.

See Appendix C for examples of notices

Where an environmental statement has been prepared relating to a proposed flood protection scheme, regulation 7 of the 2010 Regulations requires the above notice to include statements:

• that the scheme is likely to have a significant effect on the environment;
• that the scheme documents are accompanied by an environmental statement which is available for public inspection;
• describing the circumstances in which a public inquiry may be called; and
• setting out the nature of possible decisions that may be taken in relation to the scheme.

It also requires a copy of the scheme documents and the environmental statement to be supplied to the consultative bodies (as defined in regulation 2) no later than the date a notice is first published.

2.11 Public inspection of scheme proposal

Paragraph 2 of schedule 2 to the Act makes provision about the availability for public inspection of documents relating to the proposed scheme, in both the area of the local authority taking forward the scheme and that of any other local authority where work would be carried out. Local authorities should advertise proposed schemes as widely as practicable. They should consider new ways of advertising such as social media in addition to more traditional and statutory routes to ensure they reach target audiences.

2.12 Publishing the Scheme

The statutory process begins when the authority first gives notice of a proposed flood protection scheme in a newspaper under the provisions of schedule 2 to the Act. The 2010 Regulations contain further provisions.

The notice must be published in at least one newspaper circulating in its area and, where any of the operations are to take place in another local authority's area, in at least one newspaper circulating in that area (The newspaper must, if practicable, be a local newspaper); and in the Edinburgh Gazette.

No later than the date of first publication in a newspaper, the local authority must also give notice to the persons listed in paragraphs 1(1)(d), (e) and (f) of Schedule 2 and display it in a prominent position in the locality, or localities, where the operations are to be carried out.

Where an environmental statement relating to a proposed scheme has been prepared, the local authority must also supply a copy of the scheme documents and the environmental statement to SEPA, SNH, Scottish Water, any relevant planning authority and any other body designated by statutory provision as having environmental responsibilities which the local authority considers has an interest in the environmental effects of the scheme. In all cases, from the first date of publication until the date a final decision is made under paragraphs 4(1) or 9(1) or until notified by the Scottish Ministers of their decision under paragraph 7(4) of schedule 2 to the Act, the local authority must make a copy of the scheme documents, and any environmental statement, available for public inspection in a place in the authority's area and, where operations are proposed to be carried out in another local authority's area, in a place in the other authority's area.

The Notice must contain:

• a general description of the effect of the proposed scheme including:
  • a summary of the operations to be carried out; and
  • a summary of the benefits, considered likely to be derived from carrying it out;
• state where and at what times the scheme documents, and the environmental statement can be inspected; and
• state that objections can be made about the proposed scheme to the local authority, by writing to a named person at a specified address or by sending an e-mail to a specified electronic mailbox, before the expiry of the period of 28 days beginning with the date notice is first published in a local newspaper;

and, where an environmental statement has been prepared:

• a statement that the scheme is likely to have a significant effect on the environment;
• a statement that the scheme documents are accompanied by an environmental statement which is available for public inspection;
• a description of the circumstances under the Act in which the Scottish Ministers may cause a public inquiry into the application; and
• a statement setting out the nature of possible decisions that may be taken in relation to the scheme.

It is in everyone's interest to ensure that those who wish to make an objection do so in a way that best allows such objections to be considered appropriately. It would therefore assist the handling of objections received, if the Notice were also to include information about the requirements of paragraph 3 of schedule 2 to the Act and regulation 12 of the 2010 Regulations about the information to be provided in an objection for it to be considered 'valid', and as a result for an objector to be considered a 'relevant objector'.

2.13 Objections

Paragraph 3 of schedule 2 entitles any person to object to a proposed flood protection scheme.

Objections

3(1) Any person may object to a proposed flood protection scheme.

(2) An objection is valid if it-

(a) is made in writing,

(b) sets out the name and address of the objector, and

(c) is made before the expiry of the period of 28 days beginning with the date notice of the scheme is first published under paragraph 1(1)(a).

(3) An objection which is made by electronic means is to be treated as being in writing if it is received in a form which is legible and capable of being used for subsequent reference.

(4) In this schedule, a "late objection" is an objection that would be a valid objection but for the fact that it was made after the end of the period specified in sub-paragraph (2)(c).

Valid objections must be made in writing (including by electronic means so long as legible and useable) and include the name and address of the objector. Regulation 12 of the 2010 Regulations also requires that any objection to a proposed flood protection scheme be accompanied by a statement of the reasons for the objection. This is to ensure that the local authority has sufficient information about the substance of any objections and can properly identify those objectors who have certain rights under the Act.

Further, under regulation 12 of the 2010 Regulations, any objection must be accompanied by a statement of reasons for the objection and, where the objector has an interest in land on which the proposed operations are to be carried out, or which may be affected by any of the proposed operations, or by any alteration in the flow of water caused by any of the operations, that person's objection must include:

• details of the land in which the objector has an interest;
• disclosure of the nature of the objector's interest in the land ; and
• details of which aspects of the proposed operations affect the objector.

Objections must be made to the local authority within 28 days from the date the notice of the proposed scheme is published in local newspapers. Sub-paragraph (4) of schedule 2 defines a "late objection" for the purposes of schedule 2. However, under paragraph 4(2) a late objection must be treated as being valid so long as the local authority is satisfied that it was reasonable for the objector to make the objection after the specified deadline and before the preliminary decision is made.

The local authority should seek legal advice on the validity of any objection and how it should be treated if any of the prescribed information has not been provided, or not been provided timeously. It should also be satisfied that it has sufficient information to determine which objectors are persons to whom paragraph 5(6) of schedule 2 of the Act applies. Appendix E - 'Interest in Land' and 'Land affected' of this guidance provides further clarification on relevant objectors.

A late objection is an objection that would be valid but for the fact that it was made after the expiry of the period allowed. The local authority must treat 'late objections' as valid if they are received before a decision is made, it was reasonable for the objector to make the objection after the deadline for doing so, e.g. extended stay out of the country, and the late objection meets the requirements of paragraph 3 of schedule 2 to the Act and regulation 12 of the 2010 Regulations. The local authority should seek legal advice in such cases.

2.14 Scheme where no valid objections received

Decision where no valid objections received

4(1) Where, in relation to a proposed flood protection scheme, the local authority receives no valid objections the local authority must, after the expiry of the period referred to in paragraph 3(2)(c), either-

(a) confirm the proposed scheme, or

(b) reject the proposed scheme.

If no valid objections are made the local authority must, after the expiry of the objection period, proceed to either:

• confirm the proposed scheme; or
• reject the proposed scheme.

2.15 Schemes attracting objections

Preliminary decision following objections

5 (1) Where, in relation to a proposed flood protection scheme, the local authority receives a valid objection, it must make a preliminary decision to-

(a) confirm the proposed scheme without modification,

(b) confirm the proposed scheme with modifications, or

(c) reject the proposed scheme.

(2) Before making the decision under sub-paragraph (1), the local authority-

(a) must consider-

(i) any valid objections (unless withdrawn), and

(ii) any late objection if the authority is satisfied that it was reasonable for the objector to make the objection after the deadline for doing so, and

(b) may also consider any other matters it considers appropriate.

(3) The local authority must give notice of its decision under sub-paragraph (1) to every person who made an objection which it considered.

(4) A person who made such an objection is referred to in this schedule as a "relevant objector".

Local authorities should work with objectors to try and resolve any issues or concerns that they have.

The local authority must firstly determine whether an objection is considered to be 'valid'. The local authority must then consider all valid objections.

The local authority should notify all persons who submitted an objection, which is not considered valid with the reasons for this. As the period of notice for objections will have expired by this time, there is no immediate recourse for such persons to resubmit an objection.

It may be that discussions with each objector will help to resolve concerns. It may however be that sufficient agreement leading to withdrawal of an objection cannot be reached. However to save both parties time and expense at any hearing or public local inquiry the parties should seek to identify issues on which they agree so that later proceedings, whether a hearing or public local inquiry, can focus on the issues in dispute.

It may be that some minor change or a more substantial modification of the proposed scheme may satisfy an objector's concern leading to withdrawal of their objection. The authority should carefully consider whether such a change may be deemed to be a modification that might raise another person's concern.

CASE STUDY

Dealing with Objections

A local authority promoted a Flood Prevention Order under the 1961 Act. A number of objections were received and negotiations were entered into with the aim of making modifications to allay the concerns and enable the removal of the objection, which was successful in all but one objection. The final objection involved an objector who wished substantial mitigation measures to be implemented by the Council to enable him to remove his objection. To embody the agreements made, a legal 'minute of agreement' an undertaking by the Council in full and final settlement was entered into by both parties. Following completion of the scheme the legality of the minute of agreement was questioned, and it was established that you cannot contract out of a statute, and as such the compensation entitlement was that contained in the Act rather than that of the minute of agreement.

This case study demonstrates that when objections are received very careful consideration should be given about the lengths to which you are prepared to go to remove the objection. With hindsight in this case the objection should have remained and The Council should have progressed the Order with such an objection through the normal Order processes .

2.16 Preliminary decision following objections

If, following discussions, all objections are withdrawn, preferably received in writing but otherwise confirmed in writing by local authority then the authority can proceed to a preliminary decision under paragraph 5(1) and a final decision under paragraph 9(1) to:

• confirm the proposed scheme without modification; or
• confirm the proposed scheme with modification(s); or
• to reject the proposed scheme.

Such decisions may be made simultaneously.

There will however be circumstances that arise, despite a local authority's best efforts, where agreement cannot be reached. In such instances, the local authority must consider all valid objections and any other matters it considers appropriate before making a preliminary decision to:

• confirm the proposed scheme without modification; or
• confirm the proposed scheme with modification(s); or
• to reject the proposed scheme.

In arriving at its decision, paragraph 5(2) sets out that the local authority must consider any valid objections (unless withdrawn) and consider any late objections if the authority is satisfied that it was reasonable for the respondent to make the objection after the deadline.

From this point onwards, a person who has made an objection that is considered 'valid' is a 'relevant objector'.

Once it has made a preliminary decision, the local authority must give notice of its preliminary decision to every person whose objection was considered 'valid'. Where that decision was to confirm with modification, under regulation 13 of the 2010 Regulations, it must also offer every objector the opportunity to withdraw that objection in writing. Both the 2010 Regulations and the Act are silent about the period which should be given to objectors to consider their position, but it is suggested that this should not be less than 28 days and in any event the period should be declared to the objectors.

In addition, the local authority may consider any other matters it considers appropriate. Where such matters may have been identified in an objection, which is not considered to be 'valid', the local authority may still wish to consider the matters identified. There is a risk in this instance that a 'second-class' of objector is created, which should not be allowed. From this point onwards, objections must be both 'valid' and be from 'relevant objectors'.

2.17 Notice of preliminary decision to the Scottish Ministers

The local authority must, under paragraph 5(5) of schedule 2 to the Act, give the Scottish Ministers notice of its decision, along with other material including the scheme documents and other supporting information described in this paragraph.

Paragraph 5(6) of schedule 2 to the Act provides further detail on the persons deemed to be relevant objectors of which the Scottish Ministers notice require notice to be given. These are those referred to in paragraph 1(1)(e) or (f) of schedule 2 of the Act, and any person:

(a) having any interest in any land on which the proposed operations are to be carried out, or

(b) whose interest in any other land may be affected by any of the operations or by any alteration in the flow of water caused by any of the operations.

However, for completeness and simplicity, and to ensure the process runs smoothly, the local authority should include all details of the objections received and any other material considered in making a preliminary decision.

For further consideration of issues see Appendix E - 'Interest in Land' and 'Land affected'.

2.18 Withdrawal of objections following a preliminary decision to confirm a scheme with modification

Where, under regulation 13(2) of the 2010 Regulations all objections are withdrawn following confirmation of a scheme with modifications, the duty of the local authority to give the Scottish Ministers notice of its decision under paragraph 5(5) of schedule 2 to the Act does not apply.

All withdrawals of objections should be made in writing and unconditional, or at the least should be confirmed in writing. Any withdrawal, especially those subject to conditions, should be referred to the local authority's legal advisors. A withdrawal made by electronic means is to be treated as being in writing if it is received in a form which is legible and capable of being used for subsequent reference.

2.19 Decisions in relation to flood protection schemes with environmental statements

Where the preliminary decision is to modify a scheme which has a significant effect on the environment, it must also follow the procedure under regulation 8 of the 2010 Regulations to give notice of the modified scheme in the same manner as notice was given of the scheme as originally proposed in accordance with paragraphs 1(1), 2 and 4 of schedule 2 to the Act. The contents of the notice must comply with regulation 8(3). The local authority must make copies of the scheme documents and environmental statement available for public inspection and allow a period of 28 days from the date of publication of the modified scheme for making objections.

Any objections to the modified scheme are considered in the same manner as objections to the scheme as originally proposed.

Where there are no objections to be considered from objectors to which paragraph 5(6) of schedule 2 to the Act applies, there is no need to notify the Scottish Ministers of the preliminary decision under paragraph 5(5) of that schedule.

Where that paragraph applies, the local authority must notify the Scottish Ministers of its preliminary decision in writing to the Managing Flood Risk Team in the Scottish Government, together with:

• the scheme documents (and any environmental statement);
• a summary of the objections received by the local authority;
• copies of these objections; and
• any other material considered by the local authority.

Such documents should be sent in electronic form.

Regulation 10 of the 2010 Regulations describes how decisions in relation to flood protection schemes with environmental statements are to be made.

The local authority (or Scottish Ministers as appropriate) must take into account the environmental information, see below, and state in its decision that they have done so.

Environmental information is:

(a) any environmental statement or revised or updated environmental statement prepared in connection with the scheme;

(b) any representation made by any of the persons referred to in paragraph 1(1)(f) of schedule 2 to the Act;

(c) any representation made by any of the consultative bodies; and

(d) any valid objection to the scheme (unless withdrawn).

This applies to the confirmation of the scheme and the granting of deemed planning permission powers under the Act.

Flooding in the Borders January 2014

2.20 Ministerial call-in

Where the Scottish Ministers receive notification of a proposed scheme under paragraph 5(5) of schedule 2, paragraph 6(1) requires them to 'call in' the proposed scheme where any relevant objector is a local authority or National Park Authority. If the objection is submitted by any other relevant objector, the Scottish Ministers can choose whether or not to call the scheme in.

In these circumstances, the Scottish Ministers must within 28 days of receipt of a notice advise the local authority whether they will:

• consider the proposed scheme; or
• not consider the proposed scheme.

In reaching this decision on whether to call in, the Scottish Ministers must have regard to the factors listed in paragraph 6(3):

• the extent of the proposed operations;
• the likely reduction in flood risk that will result from the completion of those operations;
• the nature of the objections made;
• the likely effect on the objectors of the scheme being confirmed; and
• the extent to which the objections appear to raise issues of disputed fact.

Sub-paragraphs (4) and (5) allow the Scottish Ministers to extend the time in which they must decide whether or not to call in a scheme by up to 28 days, but they must make any decision to extend within the original 28 day period and must notify the local authority of the extension as soon as practicable.

2.21 Ministerial consideration of proposed Scheme

Paragraph 7 of schedule 2 to the Act applies where the proposed scheme has been called in by the Scottish Ministers and requires them to hold a public local inquiry, unless all objections made by relevant objectors are withdrawn.

Paragraph 7(3) of schedule to the Act applies the provisions of the Local Government (Scotland) Act 1973 concerning local inquiries to be held under paragraph 7(2). The Scottish Ministers must consider the material received by them under paragraph 5(5) as well as the report of the person who held the public local inquiry, if one is held, before either confirming the proposed scheme either with or without modifications, or rejecting the scheme.

The Scottish Ministers may not confirm a scheme with modifications unless they have notified relevant objectors and anyone else they consider to be affected of the proposed modifications at least 28 days before confirming the scheme, giving them an opportunity to make objections about the proposed modifications, and considered any objections made as a result. Paragraph 7(6) of schedule 2 requires the Scottish Ministers must notify the local authority of their decision as soon as reasonably possible.

2.22 Public local inquiry

Where a proposed scheme has been notified to the Scottish Ministers under paragraph 5(5) of schedule 2 to the Act and the scheme is to be considered by the Scottish Ministers, a public local inquiry must be held unless all relevant objections are withdrawn.

The Directorate for Planning & Environmental Appeals ( DPEA) will arrange for the appointment of a suitable Reporter and liaise with the local authority and relevant objectors about arrangements for the holding of the inquiry, usually within 24 weeks of the relevant date (refer to DPEA guidance).

The Scottish Ministers must consider the Report of any inquiry and the material provided by the local authority with the notification under paragraph 5(5) of schedule 2 before making a final decision under paragraph 7(4) to confirm the scheme with or without modification or to reject the scheme.

Where any modifications are to be considered, they must, at least 28 days before coming to a decision, give notice of the proposed modifications to the relevant objectors and anyone else they consider affected by them, unless such notice has already been given by the local authority under regulation 8, giving them an opportunity to object to the proposed modifications and consider any such objections received. The Scottish Ministers would normally release the Report of an inquiry at this stage.

Once the Scottish Ministers have made their final decision they shall notify the local authority of the decision as soon as reasonably practicable after making it. They will also send copies of their reasons for doing so to the relevant objectors. Having notified their decision and published their reasons for doing so, the Scottish Ministers will have fulfilled their functions under the Act.

2.23 Local authority hearing to consider proposed scheme

Paragraph 8 of schedule 2 to the Act applies where the local authority has made a preliminary decision in relation to a proposed scheme under paragraph 5 and the proposed scheme has not been called in by the Scottish Ministers (either because it did not have to be notified to them under paragraph 5(5) or because they decided not to call it in following such notification). A flow chart of the statutory process where a local authority makes the final decision on a scheme is shown in Appendix A - Flow chart of legal process of Flood Protection Scheme.

In accordance with paragraph 8, the local authority must hold a hearing to consider the proposed scheme if it has notified the Scottish Ministers under paragraph 5(5) but they have decided not to consider the scheme, or may hold a hearing in any other case before making a final decision (see also notes on paragraph 9). Sub-paragraph (3) requires the local authority to invite each objector to the hearing who has made a valid objection (unless withdrawn) or a late objection which the authority intends to consider. Any invitation under sub-paragraph 3 must be given not less than 28 days before the proposed hearing. Notice of the hearing must be published in a local newspaper within the relevant local authority area(s) at least 21 days before the proposed hearing.

It is for the local authority to make the arrangements for the hearing and determine who is to conduct the hearing. Objectors having an interest in land on which scheme operations are to be carried out, or whose interest in other land may be affected by the operations or alteration in the flow of water caused by the operations, have rights to be given a fair and independent hearing. See Appendix E - 'Interest in Land' and 'Land affected'. Given that the local authority will have already made two decisions: (1) to promote the scheme and (2) a preliminary decision to confirm it with or without modification under paragraph 5, the local authority should consider whether to appoint a person independent of the local authority to hold the hearing and Report to them although this is not a requirement of the Act. The Directorate of Planning & Environmental Appeals ( DPEA) can provide the services of a Reporter on request. However, the cost of the Reporter, his expenses and any administrative support for making arrangements for the hearing, would be a matter for the local authority.

Appendix G contains the Code of Practice for Hearings used by DPEA. This code contains the procedure which the objectors, the local authority and, if relevant, other parties should follow where a hearing is to take place whether or not the local authority has appointed a DPEA Reporter. The code is intended to save the parties time and money and to allow the Reporter to lead a structured discussion about the matters at issue. The aim is to give everybody, including interested third parties, a fair hearing and to provide the Reporter with all the information necessary for his Report, but in a more flexible and less formal atmosphere than at a local inquiry. Although the code does not have statutory force, all parties to a hearing are expected to comply with it.

Before coming to a final decision to confirm the scheme with or without modifications or to reject the scheme the local authority must consider:

• the representations made at the hearing and all valid objections;
• the environmental information specified in regulation 10(3) of the 2010 Regulations where this applies, and must state in their decision that they have done so; and
• where any modifications are under consideration, any objections to the proposed modifications.

Where any modifications are to be considered which have not been notified at an earlier stage they should be notified to the relevant objectors and anyone else they consider affected by them not less than 28 days before a final decision is made in accordance with regulation 8 of the 2010 Regulations (where this applies) and paragraph 9(3) of schedule 2 to the Act, giving them an opportunity to object to the proposed modifications and consider any such objections received.

It would be desirable therefore for the local authority to allow at least 28 days between the hearing and the consideration for the final decision.

Once the local authority has made its final decision, it shall give notice of the decision to every person given notice in relation to the proposed scheme under paragraph 1(1)(d) to (f) of schedule 2 to the Act; to any relevant objector; to anyone else who was notified under paragraph 7(5)(a) or 9(3)(a) of that schedule; and where the decision is to confirm the proposed scheme (with or without modifications) in the newspapers as detailed in paragraph 1(1)(a) to (c). See paragraph 2.26 below.

2.24 Final decision following preliminary decision

Paragraph 9 of schedule 2 to the Act requires the local authority to make a final decision in relation to the proposed scheme by either confirming it, with or without modifications, or rejecting it, unless the scheme has been called in by the Scottish Ministers.

Sub-paragraph (2) lists matters which the local authority is to take into account. Sub-paragraph (3) prohibits a local authority from confirming a scheme with modifications unless it has notified the relevant objectors and anyone else considered to be affected by the proposed modifications. This should be done at least 28 days before confirming the scheme, giving the relevant objectors an opportunity to make objections to the proposed modifications. The local authority must have considered any such objections before confirming a scheme.

2.25 Notice of final decision

Paragraph 10 requires that, where a final decision of a local authority or the Scottish Ministers is made on a proposed scheme, the local authority must give notice of the decision to every person given direct notification of the scheme at the outset, every relevant objector (see paragraph 5(3) and 5(4) of schedule 2 to the Act) and anyone else who received notification of a proposed modification to the scheme. Should it be decided to confirm the proposed scheme (with or without modifications) then notice must be given in local newspapers in the relevant local authority areas, and in the Edinburgh Gazette.

2.26 Post-confirmation

Whether a scheme has been confirmed by the local authority or the Scottish Ministers after a public local inquiry, notice of confirmation of the Scheme must be published by the local authority in the newspapers in which notices were first published by virtue of paragraph 1 of schedule 2 to the Act and, no later than the first date of publication in a newspaper, notice must be given to all parties served notice under paragraph 1(1)(d) to (f) of schedule 2.

A copy of the Report of any hearing or public local inquiry should be provided to all parties who participated and a copy of the reasoned decision provided to all objectors if not already issued. Where the Scottish Ministers have made the decision they will usually release the Report of the public local inquiry and publish their reasons when notifying their decision to the local authority.

The notice must include a statement that any person affected by the confirmed scheme may appeal the decision made by the local authority on the grounds specified in paragraph 12(5) of schedule 2 to the Act by summary application to an appropriate sheriff before the expiry of the period of 6 weeks beginning with the day this notice is published in a newspaper circulating in the local authority's area.

The confirmed scheme becomes operative 6 weeks after the notice of confirmation however, if an appeal is made, the sheriff may suspend the operation of the scheme or of any part of it either generally or insofar as it affects the interest of the appellant, pending determination of the appeal.

On confirmation of the proposed scheme by a local authority, if the proposed scheme constitutes development under planning legislation, the local authority must request the Scottish Ministers to direct that deemed planning consent to any development described in the scheme is granted by writing to the Planning Decisions Manager, National and Territorial Planning, Planning and Architecture Division of the Scottish Government. The request must be accompanied by the information required by Regulation 14 of the 2010 Regulations preferably in electronic form.

The Scottish Ministers may attach suitable conditions to the planning consent and any draft conditions recommended by the relevant Planning Authority should be included for their consideration. The local authority should seek advice from the relevant Planning Authorities, including National Parks Authorities, in recommending draft conditions.

Where the final decision to confirm a scheme has been taken by the Scottish Ministers, the direction of deemed planning consent, with any conditions attached, will normally be issued by the Scottish Ministers concurrently with the notification to the local authority of that decision.

If the Scottish Ministers have imposed a condition requiring the local authority to submit further details of the scheme for approval by the Planning Authority or by the Scottish Ministers and an environmental statement is prepared in respect of these further details the local authority must follow the procedures set out in regulation 9 of the 2010 Regulations, which provides for a period of 28 days for objections to the further details to be made.

On commencement of a confirmed scheme varying or revoking an improvement order made under the Land Drainage (Scotland) Act 1958, the local authority must send a notice of the variation or revocation to the Registers of Scotland for it to be registered in the relevant Register.

A copy of the confirmed scheme and plans, together with associated technical reports, should also be sent to SEPA for retention on the Scottish Flood Defence Asset Database.

2.27 Commencement of Scheme

Paragraph 11 of schedule 2 sets out that a scheme becomes operative 6 weeks after notice of its confirmation is published under paragraph 10(2)(d).

Progress being made on the River Ness Tidal Section

2.28 Appeals

Any person affected by a final decision of the local authority or a decision of the Scottish Ministers to confirm a scheme may appeal that decision.

Paragraph 12 of schedule 2 states that an appeal must be made within 6 weeks of the notice of confirmation of the scheme being published in a newspaper circulating in the area of the local authority taking forward the scheme.

An appeal under this paragraph is to be made by summary application to the sheriff of a sheriffdom in which all or some of the proposed operations are to be carried out. Sub-paragraph (5) provides that the grounds on which a decision can be appealed are, that the local authority or the Scottish Ministers: failed to comply with the requirements relating to improvement orders under the Land Drainage (Scotland) Act 1958 (see also section 61(3) and (4) of the Flood Risk Management (Scotland) Act 2009); erred in law; or failed to follow a procedural requirement.

Sub-paragraph (6) enables the sheriff to suspend the operation of the scheme in whole or in part pending consideration of the appeal. Sub-paragraph (7) enables the sheriff to uphold the appeal only where the interests of the appellant have been substantially prejudiced and to quash the scheme in whole or in part.

2.29 Managing changes

There may be circumstances where the local authority may need to make changes to a scheme for a variety of reasons following notification, after a preliminary decision or a final decision when a scheme has been confirmed. The timing, scale and type of change may require different actions to be taken and different processes to be followed.

A change may be required as a result of:

• issues arising during notification, which, for whatever reason, were not resolved prior to publication.
• an objection to a notified scheme;
• other issues arising following period of notification; or
• new information after the preliminary decision or a final decision ( e.g. more detailed study results, or archaeology discovered during construction).

Minor changes may not require a formal modification, if they do not materially affect the scheme. Local authorities should consider and seek legal advice on whether a small amendment, such as changing the material of a wall, would be considered a material change and therefore a modification under the Act.

For further consideration of the issues see Appendix H - Modifications and Managing Change - Post Scheme Approval.

CASE STUDY

Managing Modifications and Changes

The Highland Council promoted the River Ness Flood Alleviation Scheme under the 1961 Act, and the Order was made in 2009. Notices were served on affected landowners to enable the works to commence in 2013. Between the making of the order and the intention to start construction, a landowner had submitted a planning application to change the area affected from a commercial operation to a housing development. The housing development was refused as the development was to be on the 'wet' side of the flood alleviation scheme. The affected landowner requested that the scheme be amended to accord with his developed proposals. This gave rise to two issues:-

a) The variation was significant and could not be constructed under the made order. Consent to the revised flood alleviation measures were subsequently obtained under the 2009 Act.

b) Grant monies to construct the scheme was linked to the Order promoted under the 1961 Act. Scottish Ministers confirmed that if the Highland Council obtained the necessary consents and the proposal was cost neutral, then Scottish Government would grant aid the variation. A 'minute of agreement' was entered into such that the landowner would fund any increase in costs that arose as a result of the alternative line. It is of note that this was conducted at a time before tenders had been issued and two tenders were invited, the conforming Order and the alternative line, thus establishment of the tendered cost of the alternative line could be easily established and formed a part of the costs associated with the implementation of the variation, which included matters such as design costs and design adoption, additional site investigations, removal of manmade obstructions and also the compensation applicable to the conforming and alternative line.

This case study demonstrates good practice in the management of modifications and making changes to a Scheme.