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CHAPTER 3: BILL PROPOSALS

General scope and content of Bill

3.1 The Flooding Bill will cover all aspects of planning and preparing for flooding, with the key provisions focusing on ⁶:

• Transposing the EC Directive on the Assessment and Management of Flood Risks (the Floods Directive);
• Creating a framework for a sustainable, catchment focused approach to flood risk management;
• Reforming the current legislation covering flood protection and prevention;
• Simplifying the approach to developing and implementing measures to manage flood risk;

3.2 The Bill will not cover the emergency response to a flooding event, as this comes under the auspices of the Civil Contingencies legislation outlined in ANNEX A. However, Flood Risk Management Plans as described further below should cross refer to the emergency plans for flooding developed by the Strategic Co-ordinating Groups.

Legislative framework

3.3 The framework on which the Flooding Bill will sit is that of the EC Floods Directive, which came into force in December 2007.

3.4 The Scottish Government's work on sustainable flood management already reflects the principles underpinning the Floods Directive.

3.5 The Floods Directive recognises the benefits of integrating flood risk management within the planning framework established for the Water Framework Directive. In creating the duty in the 2003 Act for responsible authorities to promote sustainable flood management, Scotland has, among other things, already made the statutory link between the objective of flood risk management to protect life and property and the environmental objectives of the Water Framework Directive.

3.6 The Government wishes to maximise the integration of the framework established by the 2003 Act for the development of River Basin Management Planning with the approach to planning for flood risk management.

General duties and responsibilities

The Competent Authority

3.7 The Floods Directive requires appointment of a competent authority/ies responsible for the implementation of the Directive in each River Basin District within Scotland. In Scotland there are 2 River Basin Districts identified under the 2003 Act - one for the Solway/Tweed area ⁷ and one covering the rest of Scotland. The latter district is subdivided for planning purposes into 9 subdistricts.

3.8 The competent authority will fulfil a strategic, coordinating role in flood risk management. The primary duties of the competent authority, as specified in the Floods Directive, are summarised in BOX 6.

3.9 The Scottish Government proposes that these duties should be set out in the Bill. The Bill will provide for the detailed direction of the competent authority by Ministers in the conduct of the new duties, and will reflect the timetable for the EC Floods Directive.

3.10 The Floods Directive requires Member States to map and plan for those areas that have been identified as being at significant risk of flooding. The Scottish Government proposes, therefore, to prepare flood risk and hazard maps and plans only for those areas identified in the preliminary flood risk assessment as being at significant risk of flooding. For those coastal areas where an adequate level of protection is in place (at the moment the standard of flood protection in Scotland is a 0.5% annual probability of flooding), and for those limited areas of Scotland that are affected by flooding from groundwater sources, we are proposing to prepare flood hazard maps that show only the extent of a flood, and not the water depth or flow velocity.

For the purposes of the Floods Directive, the term "flood" may exclude floods from sewerage systems. We are proposing to exclude floods from sewerage systems in our transposition of the Directive, however, we do believe that it is necessary to include sewer flooding in the Flood Risk Management Plan process described below.

3.12 The Floods Directive requires member states in identifying a competent authority to consider the administrative arrangements of the Water Framework Directive. However, it is not a requirement of the Floods Directive that the competent authority is the same body as designated under the Water Framework Directive.

3.13 The options for appointing a competent authority are therefore fairly wide ranging. We could identify a single, national authority or we could identify different competent authorities for each river basin district or sub-district. Alternatively, we could consider establishing a new Floods Authority. This body would be responsible for all aspects of flood management in Scotland, including flood risk assessment, flood management and planning, building of flood defences, flood warning and coordinating responses to flooding.

3.14 The Scottish Government recognises that a number of important elements come together to manage risks from flooding, including flood risk assessments, flood warning, flood protection and flood response. Bodies are already in place in Scotland with responsibilities for these different elements of flood risk management and the role of local authorities is of central importance. While the Scottish Government recognises the importance of ensuring proper and effective strategic leadership, and the need for coordination and consistency among all these bodies, it does not believe that a single body with responsibility for all aspects of flood risk management is the most practicable way forward. There was no support at the Flooding Issues Advisory Committee, or at the recent flooding summit for a move to a single flooding authority.

3.15 Creation of a new body would require key functions from a number of existing bodies to be carved out and transferred to the new body. This would be very resource intensive and there would also be a risk that important elements of Scotland's integrated approach to water and land management, and local authorities' ability to coordinate and engage at local level would be prejudiced. The Scottish Government considers that local participation and involvement is essential to successful flood risk management planning. It considers in particular that local authorities must have a continuing and central role in the development and promotion of local measures. Indeed, one of the key findings of the Pitt Review of the floods in England and Wales in summer 2007 was that local authorities should adopt a new leadership and scrutiny role, overseeing flood risk management within their local area.

3.16 The Scottish Government has considered having a number of competent authorities at a local authority or regional level, but concluded that this would not provide a vehicle for a national, strategic overview of flood risk in Scotland. The Scottish Government has spent the last few years developing a strategic approach to flood risk management in Scotland through the National Flooding Framework, and the development of the SEPA flood risk maps and the database of flood defences in Scotland. We do not want to take a step back from this and return to a system where local authorities feel that there is no national framework within which they are carrying out their flood risk management functions.

3.17 The Scottish Government therefore believes that a single competent authority with a national remit for implementing the Floods Directive should be identified, and that the important role of local authorities in implementing flood defence works and engaging at a local level should be maintained. This approach will ensure that the national and catchment focused approach to flood risk management planning is underpinned by local co-ordination and delivery of measures by those bodies with direct experience of implementing flood risk management measures in Scotland.

Q3. Do you agree with the conclusion as set out in paragraph 3.17?

3.18 There are a number of qualities required of the competent authority to enable delivery of the Floods Directive. These include:

• Technical capability: Flood risk assessment and management must be underpinned by robust and reliable scientific evidence. Common forms of data include monitoring records, modelling outputs, and socio-economic analysis. Data must be used to produce a national and local picture of flood risk and flood management options.
• Operational capacity: Delivery of the EC Floods Directive requires assessment of flood risks, the separation of rivers, catchments and coasts into relevant management units, the production of large scale management plans that are not interrupted by local authority boundaries and the identification of opportunities to link outcomes with other environmental improvements. This requires considerable experience in water management at a local, catchment and national scale.
• Accountability: A partnership approach to flood management that includes clear opportunities for public participation and stakeholder engagement is essential. The competent authority must have the ability to engage with and bring on board other parties and the wider community. The ability to take a national perspective is also essential; otherwise there would be a risk of inconsistent practice across the country and a lack of focus on national flood risk priorities.

3.19 On the basis of the criteria outlined the Government considers that SEPA is best placed to take the lead role in the implementation of the Floods Directive and should be identified as the competent authority.

3.20 SEPA has the ability to adopt both a national perspective and to reflect regional and local issues. SEPA is accountable to Scottish Ministers. SEPA also has extensive experience of flood risk assessment and, through the 2003 Act, an existing duty to produce and deliver management plans that coordinate measures across catchments via extensive stakeholder participation. Identifying SEPA as the competent authority would provide an opportunity to draw on these experiences to deliver the principles of sustainable flood management.

3.21 In preparing the Flood Risk Management Plan, SEPA would have a duty to secure the participation of responsible authorities and to consult stakeholders.

Q4. Do you agree that there should be a single competent authority with a national remit for implementing the Floods Directive, and that it should be SEPA?

A clear and participative approach to flood risk planning

3.22 The Scottish Government also proposes that a hierarchical approach to flood management planning would be the most effective way to deliver flood risk management in Scotland (BOX 7, Figure 2). As described in BOX 7, the Area Flood Management Plans developed under the Floods Directive would set the strategic framework for flood risk management in Scotland. The competent authority would have a duty to produce these plans. In summary, these plans would:

• Summarise significant flood risks (preliminary flood risk assessments);
• Map flood hazards (likelihood of flooding) and flood risks (impacts of flooding);
• Set out objectives to manage flood risk; and
• Set out broad-scale measures and polices to address flood risk.

3.23 The identification of areas at significant flood risk would be a collaborative process between the competent and responsible authorities. The assessment would use information from a variety of sources, and information held or produced by local authorities through biennial reporting and other studies would be of vital importance.

3.24 The Scottish Government does not intend to define significant flood risk in legislation; instead the intention is to issue ministerial guidance on determining and assessing significant flood risk.

3.25 The strategic Area Flood Risk Management Plans must be translated into sets of specific measures to address flood risk, for instance building new flood defences or adopting natural approaches to flood management. The identification of specific measures must be done in consideration of local and catchment conditions, locally derived datasets and thorough options appraisals.

3.26 The Scottish Government propose that local authorities are given new responsibilities in relation to the production of Local Flood Risk Management Plans. We propose that local authorities have the power to prepare a Local Flood Risk Management Plan in any area within their boundaries, but that they have a new duty to prepare a Local Flood Risk Management Plan where a significant flood risk has been identified. In developing Local Flood Risk Management Plans, local authorities must take account of Area Flood Risk Management Plans.

3.27 It is proposed that Local Flood Risk Management Plans would include the following:

• an appraisal of flood risks to inform a selection of measures - this assessment must take into account the preliminary flood risk assessments and the flood risk and hazard maps produced by the competent authority.
• measures to manage that risk;
• a sustainable urban drainage plan (where necessary, or a justification for its omission);
• a timetable for implementation;
• a funding plan (including joint funding arrangements for plans crossing local authority boundaries); and
• any other matters specified by Scottish Ministers following consultation with SEPA and the responsible authorities.

3.28 It is important that Local and Area Flood Risk Management Plans are integrated and developed in full recognition of the duty placed on responsible authorities' to promote sustainable flood management. It is the Scottish Government's intention to use the Flooding Bill to enable future development of regulations to specify the scope, structure and content of Area and Local Flood Management Plans, and mechanisms to ensure integration of plans.

3.29 Any Local Flood Risk Management Plan would be prepared on the basis of the catchment in which a significant flood risk is situated. Where there is more than one area of significant risk within a catchment, a single plan can cover these areas. There would be a duty on all responsible authorities within the defined catchment to participate in the Local Flood Risk Management Plan process. Where a Local Flood Risk Management Plan is being produced for a catchment covering two or more local authority boundaries, all responsible authorities within the catchment, including local authorities, would have a duty to collaborate in the production of the plan. It should be for those authorities to determine the best approach to that cooperation - it is unnecessary for an external body - SEPA or Scottish Ministers - to identify a lead authority.

3.30 As funding for flood risk management has now been transferred to the local government settlement, we envisage that the future allocation of that money will be based on the level of significant flood risk in each local authority. This will be informed by the preliminary flood risk assessments, and the flood risk and flood hazard maps developed by the competent authority. This will ensure that, if an Area Flood Risk Management Plan, identifies a particular flood risk in a local authority area, the local authority will have funding to put into a funding plan for dealing with the risk.

Q5. Do you agree that this is a sound basis for the development of Local Flood Risk Management Plans? If not what alternative do you propose?

Q6. Should Ministers or SEPA have the power to designate a lead authority within a local area, or should it be left to the partners?

FIGURE 2 - Summary of Area and Local Flood Risk Management Plans

Responsible Authorities

3.31 As outlined above, improving flood management in Scotland requires clarification of the roles and responsibilities of all the bodies involved in flood risk management, and appointing a competent authority is only one step in this process. The Government recognises that a number of important elements come together to manage risks from flooding, including flood risk assessments, flood warning, flood protection and flood response. Bodies are already in place in Scotland with responsibilities for these different elements of flood risk management and the role of local authorities is of central importance.

3.32 A general duty has already been placed on relevant public bodies by the 2003 Act to contribute to the delivery of sustainable flood management. We therefore propose that the Bill should provide for responsible authorities to be listed by statutory instrument. Responsible authorities should include Scottish Water, Local Authorities SNH and Forestry Commission among others - as responsible authorities they will have a duty to co-operate in the development of the Area Flood Risk Management Plans.

FIGURE 2 - Summary of Area and Local Flood Risk Management Plans

Q7. Do you agree that Local Authorities, Scottish Water, the Forestry Commission, and SNH should be identified as responsible authorities?

Q8. Which other bodies should be identified as responsible authorities?

Moray 2002

Flood Risk Management Planning - a participative process

3.33 It is important that Flood Risk Management Planning is undertaken in full cooperation between the competent authority and the relevant authorities with responsibilities or interests in the area affected by a plan. It is also important that the preparation and implementation of these plans is undertaken in full and continuing consultation and discussion with the local population directly affected.

3.34 To support collaborative working, we propose that responsible authorities within a designated area would have a duty to work together with the competent authority to produce the Area Flood Risk Management Plans. We propose that the best way to do this would be to form flood risk management advisory groups comprising all the relevant responsible authorities. To support integration with the Water Framework Directive, these groups would be subgroups of the Advisory Groups established under the 2003 Act.

3.35 We also propose to establish groups to support production of Local Flood Risk Management Plans. The groups would be established for each local authority and would have representation from all relevant responsible authorities. The responsible authorities would be under a duty to collaborate to produce the Local Flood Risk Management Plans. Where there is a requirement to develop a Local Flood Risk Management Plan for a catchment crossing a local authority boundary, the relevant groups would have a duty to collaborate in the production of that plan. Where appropriate, the groups would be based around existing Flood Liaison Advisory Groups.

3.36 To ensure wider stakeholder and community engagement, the Scottish Government also propose to establish stakeholder forums. These forums would help harness the ideas and enthusiasm of individuals and groups and help the organisations involved in flood management communicate how and why specific objectives and measures are being considered.

3.37 The groups supporting flood management planning would be established under ministerial direction.

Q9. Do you agree that responsible authorities should have a duty to work together within Flood Advisory Groups to produce plans?

Q10. Do you agree the proposals are sufficient to support wider stakeholder and community engagement in the flood risk management planning process?

Approving the plans

3.38 The 2003 Act sets out a detailed procedure for the preparation and approval by Scottish Ministers of River Basin Management Plans. Ministers can require the modification of the plan before approval. The Act also provides for the regular review of the plan. The system adopted for River Basin Management Plans is broadly similar to the existing approval of structure plans for planning purposes. The Scottish Government considers that the Bill should set out a similar procedure for the development of the plan involving consultation. There should also be a similar role for the Scottish Ministers to whom the Plans should be presented ultimately for approval.

3.39 We envisage a system whereby the competent authority, having developed the Area Flood Risk Management Plans with the relevant responsible authorities, and in consultation with all relevant parties, would submit the Plans to the Scottish Ministers for approval. As with the River Basin Management Plan, Scottish Ministers would consider the Plan and could approve, reject or instruct modifications. The Scottish Ministers would be accountable to the Scottish Parliament for their decisions.

Q11. Do you agree that the Bill should set out a process similar to that for River Basin Management Planning for the preparation by SEPA of area flood risk management plans?

Q12. Do you agree that Ministers have the power to approve, reject or modify Area Flood Risk Management Plans?

3.40 There will then be a requirement for the local flood risk management plans to conform with the Area plans. Ministers should not be directly involved in the approval of the local plans, unless objections cannot be resolved.

Ensuring compliance with the Flood Risk Management Plans

3.41 The Scottish Government believe that the flood risk management planning framework outlined in this paper will deliver an integrated and catchment focused approach to flood risk management. The success of these plans will depend on co-operation and collaboration between the competent and responsible authorities, and we believe that placing a duty on all responsible authorities to collaborate in the production of plans that are ultimately approved by the Scottish Ministers will ensure that the plans are translated into co-ordinated and agreed actions on the ground. It would be the responsibility of each body involved in flood risk management to ensure that their investment plans are aligned with the measures and objectives agreed through the Flood Risk Management Planning process.

3.42 Alternative options for ensuring compliance and investment in measures agreed through Flood Risk Management Plans include giving the competent authority enforcement powers to ensure compliance with the Area Flood Risk Management Plan, and/or establishing a mechanism to agree investment plans between the competent and responsible authorities. The Scottish Government does not believe that this is necessary or consistent with SEPA's wider role. Responsible authorities are separately accountable for the conduct of their statutory duties.

Managing surface water and urban drainage

3.43 The Scottish Government wishes to ensure that urban drainage plans sit within a Local Flood Risk Management Plan, and wishes to identify the most effective means to facilitate co-ordination of efforts to reduce flooding from surface water run-off and sewers.

3.44 One particular area of concern is the lack of integration of water industry infrastructure with other drainage and flooding infrastructure. This is one of the current "grey areas" where responsibilities are unclear, and we feel it is important that the Flood Risk Management Plans address the need for integrated urban drainage as outlined in the example given in BOX 3. For example, as a result of the Glasgow Strategic Drainage Plan there is now effective interaction between all the relevant parties, but that came about in response to a major flooding incident. Such interaction is still not the norm for all urban areas.

3.45 The long term answer cannot be the renovation of all sewerage infrastructure as this would be impractical and prohibitively expensive. Managing storm water on the surface is the key and may involve the creation of designated flood routes - either green corridors or roads. It could also involve the designation of areas of open space that would be allowed to flood when storms occur. These are significant planning issues for urban areas of the future.

3.46 It is important that new development does not add to the risk of flooding in an area, and that integrated drainage and flood resilience are considered from the start, where appropriate. Scottish Water has just published the 2 ^nd Edition of Sewers for Scotland which includes a section on the design of Sustainable Urban Drainage systems ( SUDs - as described earlier in the paper), and is currently looking to form standard agreements with all Scottish Local Authorities for the provision of integrated drainage arrangements. We propose that such agreements would form part of a local flood risk management plan.

Q13. Do you think that integrated urban drainage plans should be included as part of a Local Flood Risk Management Plan?

The planning system

3.47 SPP7 sets out the Scottish Government's policy for identifying flood risk and taking it into account in the planning process. It is clear that new development should be free from significant flood risk, and Local Flood Risk Management Plans that can inform local authorities' development plans should help planning authorities to make more informed judgements on flood risk. This information would add to the current provision whereby SEPA give advice to planning authorities.

Q14. Should Flood Risk Management Plans inform the way that development plans are prepared, or should there be a stronger linkage such as a requirement on planning authorities to show that they have regard to the FRMPs?

Flood protection measures - Simplifying the Statutory Process

3.48 The 1961 Act gives local authorities discretionary powers to mitigate flooding of non-agricultural land in their areas through the carrying out of certain operations and sets out a procedure for the promotion of these operations

Promoting a flood prevention scheme

3.49 Under the 1961 Act local authorities wishing to secure new or improved flood defence within the definitions of the Act, must promote a flood prevention scheme which is widely advertised before being submitted to the Scottish Government for confirmation. As well as advertisement the Act requires notification of certain interests affected by the scheme (this includes those with an interest in land affected by the scheme as well as other local authorities and statutory bodies whose functions may be affected). Only objections from those to whom the scheme was notified and those who are likely to be affected by the carrying out of a scheme or the change in the flow of water must be considered at a public local inquiry. Scottish Ministers may confirm with or without modification, or refuse to confirm a scheme.

3.50 In confirming a scheme under present legislation Ministers must have regard to the desirability of protecting the water environment in terms of the 2003 Act, will consider the scheme's technical soundness and, taking account of the goal of sustainable development, whether it is sympathetic to the environment and provides value for money. As well as being the basis on which central grant has been awarded, confirmation gives authorities powers of entry onto private land and ensures independent scrutiny of proposals.

Separate processes

3.51 However, in addition to the confirmation process described above, there are separate legislative procedures for granting flood prevention schemes planning permission. In most cases the Scottish Ministers are involved in both processes, but in different roles and at different times. As FIAC examined (see box) there are some significant differences between the 2 procedures. It is possible that an inquiry can be required as part of each process.

3.52 In addition, since 2006 engineering works in watercourses require authorisation from SEPA under the CAR regulations. This can add to the procedural burden and timetable.

EXAMPLE OF THE STATUTORY TIMESCALE FOR A FLOOD PREVENTION SCHEME - THE WHITE CART (GLASGOW CITY COUNCIL)

CAR only came into force towards the end of this process and so Glasgow City Council was not in a position to apply for a CAR authorisation any earlier.

3.53 Local authorities, and many others, have expressed concerns about these overlapping processes. As well as the bureaucratic overload, they consider that the procedures can add unnecessarily to the time taken to undertake a scheme. The Government recognise this is a significant issue which requires to be addressed.

3.54 Guidance to local authorities on how best to co-ordinate both processes is given in Planning Advice Note 69 Planning and Building Standards Advice on Flooding 2005 . The 2005 Planning White Paper Modernising the Planning System also said that consideration would be given to improving the interaction between the planning process and the statutory procedures for flood prevention schemes.

3.55 In recent years, the statutory process for schemes with no objections has taken around 5-6 months, but for those where there are objections the process can take over 2 years if a Public Local Inquiry has to be held. However, there have been only 4 Inquiries held into planned flood prevention schemes in Scotland in the last 20 years. The shortest of these lasted only 20 minutes, while the longest was the Inquiry into the Water of Leith Flood Prevention Scheme in Edinburgh, which lasted for 6 weeks. The Planning process usually takes around 6 months.

Simplifying Procedures

3.56 The Scottish Government believes that the present processes must be radically simplified. The possibility of two public inquiries being held; one on planning and one on flood risk management measures must be removed. Local authorities should have to prepare only one set of drawings and carry out one consultation exercise.

3.57 The Government considers that there are 2 basic possible approaches to this simplification. The first is that Ministerial confirmation should carry deemed planning permission. The second is for a local authority based process which would similarly lead to deemed planning consent.

3.58 Under either option the procedures would have to ensure the following:

• That the rights of those entitled to object under planning law and those entitled to object under 1961 Act are maintained.
• The flood risk management measure would have to be submitted with sufficient details for the planning issues to be considered.
• The flood risk management "permissible limits of deviation" would have to be accommodated in the deemed planning consent.
• The requirements of the environmental impact assessment directive were met.

Simplifying Procedures - Option 1 - Ministerial Approval To Also Grant Deemed Planning Permission

3.59 Under this option the Bill would provide that, when Scottish Ministers confirm a flood risk management measure, they would make a statutory Direction that planning permission was deemed to be granted for the relevant parts. This process would approve all the measures in the scheme, including those such as wetland creation or tree planting, which are unlikely to require planning permission.

3.60 The Bill would set out a procedure largely similar to the present confirmation procedure under the 1961 Act so that people would continue to have the right to object and there would be a similar opportunity for objections to be examined in an inquiry.

3.61 This would be broadly in line with the procedure provided for in Section 57 of the Town and Country Planning (Scotland) Act 1997, where a consent given under the Electricity Act for major wind farms enables Ministers to direct that planning permission is deemed to be granted.

3.62 Under this proposal there could be one inquiry with 2 classes of objectors - those entitled to appear at the inquiry because the scheme was to be built on their land and those who could only appear at the inquiry by invitation. This might give rise to some awkwardness. However, it occurs at present in that the Scottish Ministers are only obliged to call an inquiry to consider maintained objections from eligible parties. These parties would have an automatic right to be heard at the inquiry. Any other party might be heard at the discretion of the Reporter, and the Ministers would be required to consider their objection. However, should the first group of objectors withdraw, there would be no need for the inquiry to proceed and the Ministers would simply consider the remaining objections.

Q15. Do you think that the granting of deemed planning permission at the end of the statutory process for flood risk management will deliver a more streamlined approach to the delivery of flood risk management?

Q16. Should Ministerial confirmation be made necessary even where features of a scheme do not require planning permission?

Q17. Is the present procedure for Ministerial confirmation satisfactory for this new purpose or are there revisions e.g. to timescales which should be considered?

Simplifying procedures - Option 2 - Relying on a local authority based procedure

3.63 An alternative to simplify the procedures would be to remove the Ministerial confirmation process and rely wholly on local authority based procedures.

3.64 Local authorities are able to undertake a wide range of development activity in line with their statutory responsibilities without a process of approval or confirmation by Scottish Ministers. In many of these areas, e.g. roads and highways, authorities have powers of compulsory purchase. Procedures are wholly undertaken at local authority level but, where there are unresolved objections, they may be passed to Scottish Ministers for determination. It is not clear that flood prevention schemes are of such a character that a similar process is not appropriate.

3.65 The Government has already taken one step in simplifying the process by transferring funding for flood risk management part to the block grant to local authorities.

3.66 Now that Ministers no longer award central grant to a flood scheme, confirmation under the 1961 Act has lost a significant part of its purpose. The Government therefore wishes to consider whether there is still a need for a separate statutory process involving Ministers for flood risk management schemes.

3.67 A local authority based procedure - which would carry deemed planning consent - would give local authorities the power to carry out such flood risk management measures as may appear to them to be necessary or expedient for the protection of any land or property in their area.

3.68 A statutory procedure of advertisement and consultation would be described and where objections could not be resolved, a local inquiry would be held.

3.69 SEPA and responsible authorities would be identified as required consultees in addition to those already identified in the 1961 Act. Where a scheme did not conform to the approved flood risk management plan, or met with an objection from SEPA or other responsible authorities, Scottish Ministers could call it in.

3.70 The safeguards conferred by the European Convention on Human Rights, such as the right to compensation for the loss of land, would still apply. However, for those occasions where local authorities could not reach agreement with a landowner on the use of land for flood management purposes, they would have the option to use powers of compulsory purchase.

3.71 Technical standards would be provided by regulation under the Bill or guidance - just as in promoting a road they are required to ensure that defined standards are met and construction consent is granted under the Roads (Scotland) Act 1984.

3.72 This process would raise the importance of Local Flood Risk Management Plans and the process of their development, as the first opportunity that the public would have to go through a formal objection process would be when any flood risk management measures was identified.

3.73 Local authorities would as now, preferably have to include the proposals in their development plans. A procedure for informing or notifying Scottish Ministers might also be required in specific circumstances, for example unresolved objections.

3.74 There are a number of questions which arise in relation to this proposal including the capacity of local authorities to take it forward. A procedure separate from planning is necessary - it would be inappropriate to make the full technical detail of a flooding scheme the responsibility of the planning authority. In addition it may be that even under such a procedure the majority of proposals would be referred to Ministers under one or other criterion.

3.75 The technical capacity of local authorities is a significant issue, but is not unique to this proposal. It is relevant also to the flood risk management planning process. In order to ensure informed scrutiny of any engineering proposals, local authorities in each Flood Risk Management Planning Area might contribute to an area pool of experienced flooding engineers, which could be utilised by each authority for technical scrutiny of proposals and for long-term development of in-house expertise, thereby avoiding sole reliance on expertise bought in from consultants.

Q18. Do you think that the option to rely on a local authority based process in a similar way as other local authority development activity should be taken forward?

Q19. What would be the appropriate timescales for notification and response?

Q20. Would it be appropriate for such a process to carry deemed planning consent?

Q21 How should the issue of technical expertise and capacity to ensure the necessary technical standards are observed, be addressed?

Q22 Are there any additional alternatives to the options outlined above which would simplify procedures?

Flood measures beyond the 1961 Act

3.76 The definition of operations for the purposes of the 1961 Act is not fully consistent with sustainable flood management. This has hitherto been a constraint on local authorities' approaches to flood risk management since schemes that did not fit the definition could not be eligible for central funding. With the transfer of funding to local authorities this is no longer a constraint - local authorities are empowered under other legislation to undertake other activities. Some of these may require approval through planning or other processes, some may not. It is only a certain class of flood risk measures i.e. those involving engineering operations, which are subject to the statutory procedures. The Government consider that procedures for measures outwith the definition of the 1961 Act are satisfactory and do not require to be amended.

3.77 Nevertheless, rainfall events can have a number of damaging effects on property and cause risk to life. Local authorities have extensive powers to act to protect life and property. However given the increasing incidence of severe rainfall events, it may be advisable to ensure that local authorities are fully empowered, where a clear and present danger exists, to take urgent remedial action, including on private land, to avoid damage to life and property, and to recover costs after it has taken such action.

Q23 Do you consider local authorities' powers are sufficient to take necessary action to avert danger to life and property?

CAR authorisation

3.78 Either of these options would deal with the difficulty of having separate statutory processes for flooding and planning. However it would, in most cases, still be necessary for a CAR authorisation to be obtained from SEPA before a scheme can be constructed. In the example given on page 40 of the White Cart Flood Prevention Scheme in Glasgow, CAR had only just come into force and so Glasgow City Council was not in a position to apply for a CAR authorisation any earlier in the process.

3.79 An application for a CAR authorisation has to be advertised and objections considered. The timetable for the consideration of the application is subject to a strict timetable set out in regulations. There is scope for objectors to appeal to Ministers to determine the application.

3.80 The Scottish Government wishes to consider how best to align the CAR process with the options listed above. In order to achieve this it considers that:

• Local authorities should seek CAR authorisation at the same time. Application and advertisement should cover all relevant factors.
• It is unlikely that any statutory provisions are required to achieve this alignment. The Government will therefore work with SEPA, local authorities and other interested parties to ensure that guidance ensures the necessary alignment.
• if it is decided to retain a process of Ministerial confirmation, then such confirmation could carry deemed CAR authorisation.

Q24. Do you agree that streamlining the CAR and flooding/planning processes can be managed through better guidance?

Q25. Do you think there is anything further SEPA, the Scottish Government or others should be doing to promote joined-up regulation?

Q26. Do you think that there is an alternative approach to simplifying the process of promoting flood measures to those discussed above which the Government should consider?

Ensuring a Co-operative Approach

3.81 Authorities are not limited to their own administrative area in using their powers to mitigate flooding, and may use them jointly with other authorities. However, this co-operative approach has been rarely applied, given the differing priorities in each local authority. Therefore, as mentioned above at paragraph 3.29, the Government propose that the Bill should place a duty on local authorities to co-operate for the purposes of flood risk management planning.

Other duties under the 1961 Act

3.82 As well as the power to mitigate flooding, at present local authorities have a duty to:

• Assess the condition of watercourses from time to time to ascertain whether their condition is likely to cause flooding of non-agricultural land in their area
• Maintain watercourses in a due state of efficiency where such maintenance would substantially reduce the risk of such flooding
• Publish a biennial report of instances of flooding and measures taken since their last report, and any further measures they consider they require to take to mitigate flooding of non-agricultural land.

3.83 The Government propose to maintain these duties.

3.84 The biennial reports should form an important component of the Preliminary Flood Risk Assessment required under the Floods Directive. The Government propose that duties on local authorities to produce these reports should be retained and that they form part of their duties as responsible authorities. In order to ensure consistency the Government propose that the form and content of the biennial reports should be prescribed by Ministerial direction made under the Bill.

Q27. Do you agree that the form and content of the biennial reports should be more systematic, and subject to direction from Ministers?

Delivering Sustainable Flood Management

3.85 Removing the formal statutory process, and therefore the definition of 'schemes' within the meaning of the 1961 Act, will also provide local authorities with the flexibility to develop an incremental approach to providing protection based on a portfolio of measures including land management techniques, as well as the more traditional flood prevention schemes. However, we do not propose that the Bill should set out in detail what a flood management measure might be. Rather, the Bill would establish the framework to ensure that all flood risk management measures are implemented as part of a strategic approach to flood risk management in Scotland.

3.86 We therefore do not believe that it is necessary to specify a detailed range of flood management measures in the Bill; instead we plan to issue guidance on sustainable flood management, based on the work of FIAC. If we retain the need for Ministerial confirmation of flood risk management measures, then we will expect local authorities to have taken the guidance into consideration in the development of the most appropriate measures in order to achieve confirmation.

3.87 The aim of the Flood Risk Management Plans will be to manage the consequences of flooding on people, economic activity and the environment where these are significant. This may include taking steps to slow the flow, or to store flood waters where the consequences will be less, in order to reduce the consequences elsewhere. We do not wish to prescribe the nature of the land where these measures may be taken and the simple distinction between agricultural and non-agricultural land in the 1961 Act is no longer appropriate.

3.88 The proposals outlined above provide a new framework of duties and responsibilities on a number of bodies across Scotland with a role to play in flood risk management. The powers remain largely permissive, with duties only being placed on the competent authority and responsible authorities to collaborate in flood risk management planning. However, this is combined with the existing duty under the 2003 Act to promote sustainable flood management, and with the fact that all responsible authorities should have signed up to a national flood risk management plan that has been approved by Ministers. The Scottish Government believe that this approach will support delivery of the Floods Directive and ensure that Scotland is equipped to take forward sustainable flood management.

Q28. Do consultees agree that the proposals as outlined will improve flood risk management and ensure Scotland is equipped to implement sustainable flood management?

Q29. Do consultees feel that this is enough to ensure that flood risk is addressed or should local authorities have a new duty to promote measures to alleviate flooding?

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