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

4.5 Appendix E - 'Interest in Land' and 'Land affected'

Preamble

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

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

Persons affected by the operations may be much wider than those with an interest in land.

In applying fair and reasonable endeavours to identify these persons so that they can be considered for the serving of notices, payment of compensation or identified as possible relevant objectors, the local authority should have a clear record of the considerations given and parameters applied to land affected and persons affected by scheme operations.

Introduction

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

Paragraphs 1(1)(d) to (f) of schedule 2 to the Act require a local authority to send direct notification of a proposed scheme to those with an interest in land affected or any other land affected, e.g. by alteration in the flow of water, which could be upstream or downstream.

The relevant objectors falling within paragraph 5(6) of that schedule include those with an interest in land affected.

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

Scots Law

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

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

Human rights

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

Information about ownership etc. of land

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

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

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

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

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

Land affected

A local authority or, as the case may be, the Scottish Ministers must consider the objections made from 'relevant objectors' (see below) who are 'affected' by a modification (see paragraphs 7(5)(a) and 9(3)(a) of schedule 2 to the Act) and any person may appeal if affected by the confirmation of a scheme. A fair and reasonable assessment of how operations may affect land and those with an interest in land should be straightforward. However, such an assessment should be recorded and the parameters applied should be clearly stated. This is particularly important in considering the compensation that must be paid (see below) and also in identifying those who should be served notices under the Act, or later be considered as a 'relevant objector'.

'Any of the operations or by any alteration in the flow of water caused by any of the operations' should be considered. Scheme effects on land affected or persons with an interest in land can be indirect or remote from the scheme. For example, a scheme to reduce river flooding may also have an impact on water abstraction within the catchment, which should be readily available information, but may also impact on land drainage to agricultural land in the catchment. The increase or decrease in downstream flood levels is another example of where an interest in land remote to the scheme is relevant.

Another example, which might not be obvious, is a concrete batching plant established to provide supplies to construct a scheme would be considered to have an effect even if this was miles away from the 'site' of construction. Consideration should therefore be given to the upward supply chain for the scheme operations.

'Remote' effects can therefore have a particular relevance in considering environmental impacts. The local authority should have a clear record of the considerations given and parameters applied to land affected by such operations.

Compensation

Compensation must be paid to any person who has sustained damage as a consequence of exercising certain powers under the Act (see section 82). Section 83(1) defines damage as the depreciation of the value of a person's interest in land or the disturbance of a person's enjoyment of land. 'Enjoyment of land' therefore needs to be considered. As with 'interest in land' or 'interest in land affected', there is no definition within the Act of 'enjoyment of land'.

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

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

There is wider consideration of the interest in land of, for example, anglers or a 'dog walker', or those using an affected right of way such as footpath or bridleway, and their enjoyment in the land that may be affected by scheme operations or other powers exercised. The broad publication of notices, on site notices and in newspapers, and the broader consultation required to develop a flood protection scheme should be sufficient to allow for fair and reasonable notification of these wider interests. It would then be for the local authority or Scottish Ministers to consider an objection if made by such persons, who may then be classed as a relevant objector, or indeed in the eventuality of an appeal to the Lands Tribunal for Scotland.

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

Description of the operations

The description of the operations should contain sufficient information to allow a person to understand the scale and nature of the proposed works and determine the impacts the operation would have on his interests. Such a description should consider the wider aspects of those affected and the local authority should record this consideration.

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

Objections

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 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.

The local authority may seek legal advice on questions of validity of any objection and how it should be treated if any of the prescribed information has 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 to the Act applies.

In particular, a person determined at this stage to have a valid interest in land should be considered by a local authority to be a "relevant objector" for the purposes of paragraph 5(5) of schedule 2 to the Act.

The local authority should consider how, who and where objections are to be received and assessed. On the basis of the objection being valid, the local authority shall assess the objections with due consideration of need for independence of the assessment based on the nature of the objection. The local authority may wish to consider using the experience of their planning authority or others in assessing and determining objections to operations that the local authority are themselves the promoter of. The local authority should make it clear to the relevant objectors how objections are to be assessed and determined, and such assessments should be recorded.

Local authority 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 should be presumed as having a right to be given a fair and independent hearing. The aim is to give everybody, including interested third parties, a fair hearing. This will provide the Reporter (or any other person leading the hearing) with all the information necessary for their Report, but in a more flexible and less formal atmosphere than at a local inquiry.

Given the introduction of 'interested third parties' at this late stage of the process, the local authority should make clear in their earlier wider considerations of those with an interest in land how third parties have been defined and considered, and therefore how they might be determined to be 'relevant objectors'. Such clarity will assist the Reporter at the Hearing stage and reduce the risk presented by an unforeseen objector.

Post confirmation.

The confirmed scheme becomes operative 6 weeks after publication of 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. This would offer a final backstop for a person with 'interest in land', who has not been notified to be heard or who had not submitted an objection. It is considered that at this stage, given the Sheriff's consideration should be limited to the correct application of the procedure and that a local authority should have applied fair and reasonable endeavours to establishing a list of those who have an interest in land, that this represents a risk to the suspension of a notice of confirmation.