Surface water management planning: guidance (2018)

Appendix 2 Roles and responsibilities for surface water flooding

Further information on the main roles and responsibilities for drainage and surface water flooding are given below. The list is provided for information purposes and is not exhaustive.

Local authorities

Flood Risk Management (Scotland) Act 2009

• Section 56 gives local authorities general powers to manage flood risk (from all sources including surface water) in their area, including implementing actions set out in local flood risk management plans, flood protection schemes or any other flood protection work. The definition of flooding under the FRM Act does not include flooding solely from a sewerage system. Flooding solely from a sewerage system includes flooding from the sewerage system under usual rainfall events (usual rainfall is currently interpreted to mean up to the 1:30 year rainfall event), and comes under the jurisdiction of Scottish Water. In reality, surface water flooding is often a complex interaction of flooding from many different sources, requiring close working between partner organisations to resolve. Many of the actions identified through the SWMP process can help to manage surface water flooding and flooding solely from a sewerage system.
• Sections 17 and 18 require local authorities to map bodies of water and SUDS, assess bodies of water and prepare a schedule of clearance and repair works.
• Section 59 requires local authorities to carry out clearance and repair works described in the schedule of clearance and repair works, in specific circumstances.
• Section 1 requires all responsible authorities (including local authorities), when exercising their flood risk functions, to manage flood risk in a sustainable way and to co-operate with all responsible authorities.
• Section 41 requires all public bodies and office-holders to have regard to flood risk management plans and local flood risk management plans, which often encompass surface water flooding, when exercising functions that affect a flood risk district.

Roads (Scotland) Act 1984

• Roads authorities (including local authorities) have powers under the Roads (Scotland) Act 1984 to provide drainage of public roads (for normal circumstances), and for road safety. The latter may involve signage and traffic diversions in the event of flooding.
• Section 31 gives roads authorities power to drain a public road or proposed public road, or otherwise to prevent surface water from flowing onto it.
• Section 99 allows roads authorities to carry out works to prevent flows of water onto roads, where the owner or occupier of any land has failed to prevent the flow of water, filth, dirt or other offensive matter from, or any percolation of water through, the land onto the road.
• Section 21 refers to the need for consent for anybody other than a roads authority to build a new road. Where a developer is seeking to petition the roads authority, any proposed layout and construction of roads, including road and surface water drainage, must satisfy current design standards.

Sewerage (Scotland) Act 1968

• Section 7 allows roads authorities (including local authorities) and Scottish Water to enter into agreements on providing, managing, maintaining or using their sewers or drains for conveying water from the surface of a road or surface water from premises.

Town and Country Planning (Scotland) Act 1997

• This Act gives planning authorities (including local authorities) powers to grant or refuse planning applications.

Planning etc. (Scotland) Act 2006

• Part 2 requires the planning authority to exercise its planning function with the objective of contributing to sustainable development.
• Part 2 also states that a strategic development plan should set out the infrastructure of the area concerned, including communications, transport and drainage systems, and systems for the supply of water and energy.
• Part 2 further states that where land is not within a strategic development plan area, a local development plan should set out the infrastructure of that area, including communications, transport and drainage systems, and systems for the supply of water and energy.

Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008

• Regulation 25 and Schedule 5 require that planning authorities consult SEPA where a development is likely to result in a material increase in the number of buildings at risk of damage by flooding. Planning authorities must take into account SEPA’s advice, along with the development plan and other material considerations, when determining planning applications incurring flood risk.
• The regulations require key agencies, including SEPA, to co-operate with strategic development plan authorities and planning authorities when compiling the main issues reports, strategic and local development plans, and action (including proposed action) programmes.

The Town and Country Planning (Miscellaneous Amendments) (Scotland) Regulations 2011

• These regulations came into force on 1 April 2011. They amend The Town and Country Planning (Development Planning) (Scotland) Regulations 2008 to include reference to flood risk management plans and local flood risk management plans. When preparing strategic development plans and local development plans, planning authorities must have regard to any approved or finalised flood risk management plan that impinges on the strategic or local development plan area.

The Town and Country Planning (Notification of Applications) (Scotland) Direction 2009

• This requires planning authorities to notify Scottish Ministers of any application where SEPA has either advised against granting planning permission or recommended conditions concerning flood risk which the planning authority does not propose to attach to the planning permission.

Coastal Protection Act 1949

• Section 4 allows the competent authority to carry out coastal protection works to protect land from coastal erosion and to regulate works carried out by others within their authoritative boundary.

Civil Contingencies Act 2004

• Local authorities are a Category 1 responder under this Act.
• Part 3 places duties on Category 1 responders to assess risk of an emergency occurring, including surface water flooding.
• Part 4 requires Category 1 responders to maintain plans and arrangements to warn, inform and advise the public in the event of an emergency under Section 14.
• Such assessments and plans are to provide a framework of contingency actions, enabling the council and partner agencies to construct a co-ordinated and flexible response to mitigate the effects of flooding emergencies, including surface water flooding.

Water Environment and Water Services (Scotland) Act 2003

• Section 16 requires every public body and office-holder including local authorities, in exercising their functions, to have regard to the River Basin Management Plan.

Building (Scotland) Act 2003

• Section 8 refers to the issuing of building warrants for construction work and, in conjunction with Part 3, covers compliance and enforcement.
• Under Building (Scotland) Regulations 2004, Mandatory Building Standard 3.6, which is subject to review as part of local authorities issuing building warrants, requires every building and hard surface within the curtilage of a building to be designed and constructed with a surface water drainage system that will:
  • Ensure that surface water is disposed of without threatening the building and / or the health and safety of the people in and around it; and
  • Have facilities for separating and removing silt, grit and pollutants.

Lead local authority
In addition to the powers described above for local authorities, lead local authorities have additional responsibilities.

Flood Risk Management (Scotland) Act 2009

• Section 34 requires lead local authorities to prepare a local flood risk management plan.
• Sections 37 and 38 require lead local authorities to review the plan and to report on progress on implementing the actions therein.

Scottish Water
Flood Risk Management (Scotland) Act 2009

• Section 16 requires Scottish Water to assess flood risk from sewerage systems.
• Section 1 requires all responsible authorities (including local authorities), when exercising their flood risk functions, to manage flood risk in a sustainable way and to co-operate with all responsible authorities.
• Section 41 requires Scottish Ministers and every public body and office-holder to have regard to flood risk management plans and local flood risk management plans, which will include surface water flooding.

Sewerage (Scotland) Act 1968

• Sections 1 to 8 state that Scottish Water must design and fully maintain public sewers to ensure that they remain capable of effectively draining surface water.
• Section 12 sets out Scottish Water’s right to refuse permission to or impose conditions on a private owner to connect with and drain into public sewers.
• Section 21 specifies that Scottish Water must vet building applications to ensure that no building that could interfere with or obstruct a sewer is constructed over it.
• Other Sections (as amended by the Water Environment and Water Services Act 2003 and in particular Schedule 3) give Scottish Water responsibility for maintaining SUDS, which are defined as facilities that attenuate, settle or treat surface water from two or more premises (whether or not together with road water), where they have been designed and completed to a required standard.
• Section 7 allows roads authorities and Scottish Water to enter into agreements for providing, managing, maintaining or using their sewers or drains for conveying water from the surface of a road or surface water from premises.

Water Industry (Scotland) Act 2002

• Section 50 states that Scottish Water must, in exercising its functions, seek to ensure that its resources are used economically, efficiently and effectively.
• Section 51 compels Scottish Water to act in a way that contributes to achieving sustainable development.
• Under Section 53, Scottish Water must have regard to protecting cultural heritage, natural beauty / flora / fauna and geological sites of special interest.
• Under Section 54, Scottish Water must consult Scottish Natural Heritage ( SNH) and National Park authorities ( NPAs) when carrying out works that could affect designated sites or NPA land.

Water Environment and Water Services (Scotland) Act 2003

• Section 16 requires every public body and office-holder including Scottish Water, in exercising their functions, to have regard to the River Basin Management Plan.

SEPA
Flood Risk Management (Scotland) Act 2009

• Section 9 requires SEPA to produce the National Flood Risk assessment.
• Section 13 requires SEPA to identify Potentially Vulnerable Areas ( PVAs).
• Section 19 requires SEPA to map artificial structures and natural features.
• Section 20 requires SEPA to assess the potential for Natural Flood Management.
• Section 21 requires SEPA to prepare flood hazard and risk maps for PVAs.
• Section 27 requires SEPA to prepare flood risk management strategies.
• Section 72 requires SEPA to provide advice on flood risk to the planning authority when requested.
• Section 74 requires SEPA to make available flood warnings.

Planning etc. (Scotland) Act 2006

• The Act gives SEPA (as a key agency) the duty to co-operate in preparing development plans.

Water Environment and Water Services (Scotland) Act 2003

• Section 10 requires SEPA to prepare River Basin Management Plans.
• Section 9 requires SEPA to set objectives for the quality of the water environment and identify actions to achieve them.

Civil Contingencies Act 2004

• SEPA is a category 1 responder under this Act.

Transport Scotland
Roads (Scotland) Act 1984

• To ensure adequate drainage of all trunk roads.

Sewerage (Scotland) Act 1968

• Section 7 allows roads authorities (including Transport Scotland) and Scottish Water to enter into agreements for providing, managing, maintaining or using their sewers or drains for conveying water from the surface of a road or surface water from premises.

Police
Civil Contingencies Act 2004

• The police are a Category 1 responder under this Act, responsible for co-ordinating emergency services in the event of flooding.

The Fire and Rescue Service
Civil Contingencies Act 2004

• The Fire and Rescue Service is a Category 1 responder under this Act. Its duty is to save lives in the event of serious flooding that is likely to cause one or more individuals to die, be seriously injured or become seriously ill.

Public and communities

• It should also be remembered that we are all responsible for protecting ourselves and our property from flooding. This means the public and communities taking action to minimise flood damage to land or property. Members of the public have an important role in sharing local knowledge and taking part in flood protection actions for their areas.