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ANNEX A: SUMMARY OF CURRENT FLOODING LEGISLATION
The Land Drainage (Scotland) Act 1958
This Act provides that owners of agricultural land may request the Scottish Ministers to make an order permitting them to carry out improvement works, which may include flood protection, to improve the agricultural potential of their land. This Act is now little used, the last order being made in 1985.
The Flood Prevention (Scotland) Act 1961
This Act empowers local authorities to take such measures as they consider necessary to mitigate flooding of non-agricultural land. The cause of flooding is not prescribed, however the measures available are in relation only to watercourses, barriers and similar flood defence works, and their ancillary apparatus and so may only be of use in instances of river or tidal flooding. Since 1997, authorities have had duties to assess the condition of watercourses and maintain them in a due state of hydraulic efficiency where that would substantially reduce the risk of flooding to non-agricultural land, and to publish a biennial report of instances of flooding of non-agricultural land and measures taken or still to be taken to mitigate such flooding.
Works, other than maintenance and repair, can only be carried out under a flood prevention scheme, promoted by the authority and confirmed by the Scottish Ministers. There is provision for objections to be considered at a public local inquiry and the Scottish Ministers may confirm a scheme, with or without modification, or refuse to confirm a scheme.
From April 2008, funding of flood prevention schemes will be included in the local government block grant and it will be the responsibility of each local authority to allocate the total financial resources available to it on the basis of local needs and priorities having first fulfilled its statutory obligations and the national and local outcome agreement priorities agreed with the Scottish Government.
The Roads (Scotland) Act 1984
This Act empowers the roads authorities, who are the Scottish Ministers (who exercise these powers via Transport Scotland) for trunk roads [and special roads ( i.e. motorways)] and local authorities for other public roads, to carry out works to protect roads from flooding. The Act also empowers roads authorities to carry out various works to drain roads and to prevent surface water from flowing onto them. There is an interaction between roads authorities' drainage powers and Scottish Water's responsibilities under drainage and sewerage legislation (see below). Finally, roads authorities can make contributions to the expenses of flood prevention operations under the 1961 Act and land drainage works under the Land Drainage (Scotland) Act 1958, where they consider that the operations or works are desirable for the protection of roads.
Planning Legislation and Guidance
The Town and Country Planning (Scotland) Act 1997 as amended provides for the control of new development and the preparation of development plans (currently structure and local plans) by planning authorities. Planning applications have to be determined in accord with the development plan unless material considerations indicate otherwise. Flood prevention schemes prepared under the 1961 Act are development and therefore require planning permission.
The Town and Country Planning (General Development Procedure)(Scotland) Order 1992 (as amended in 1996) and the Notification of Applications Direction make specific provisions regarding development where they may be a risk of flooding. If a proposed development is likely to result in an increase in the number of buildings at risk of being damaged by flooding the planning authority have to consult the Scottish Environment Protection Agency ( SEPA) before granting planning permission. If SEPA advise against planning permission but the planning authority wishes to approve or recommends conditions which the authority does not intend to apply, they are required to notify the application to the Scottish Ministers who may call it in for their own decision.
National guidance on addressing flood risk in development planning and determining applications is set out in Scottish Planning Policy 7 - Planning and Flooding and Planning Advice Note 69 - Planning and Building standards Advice on Flooding. The SPP contains policy specifically directed at planning authorities and developers, promotes pre-application discussions to identify flooding issues and says that developers should commission a flood risk assessment if necessary. Central to the SPP is a Risk Framework which describes the planning response to different risks of flooding. Planning Advice Note 69 complements this by outlining approaches to ensure that future built developments are not located in areas with a significant risk of flooding. It outlines advice and background information that, together with SPP7, has become the reference point for strategic and local planning consideration of flood risk. The guidance includes the provision that every Council should convene a Flood Liaison and Advice Group ( FLAG) or combine with other councils, possibly on a catchment basis. Flags provide a forum for the key public and private interests to share knowledge and offer advice on flooding issues.
The EC Water Framework Directive
(Directive 2000/60/ EC) aims to preserve and improve the ecological status of the water environment including rivers, lochs, coastal waters, transitional waters and groundwater. The Directive has two key components. Firstly it ensures that for the first time the water environment across Europe is managed in a co-ordinated and sensible manner. Secondly it requires that all activities that impact adversely on the quality (using quality in its widest sense) of the water environment are controlled. Our rivers and lochs are the lifeblood of our communities - the EC Water Framework Directive ensures their continued good health for future generations.
The Water Environment and Water Services (Scotland) Act 2003
The 2003 Act transposes the EC Water Framework Directive into Scots Law. The legislation sets up strong links between the role of flood management in protecting people and property, and river basin planning and environmental protection in in improvement of the water environment. As such, the legislation has significant implications for local authorities with respect to their strategies for flood management and flood alleviation.
Under section 2 of the 2003 Act Scottish Ministers, SEPA (as the competent authority) and the responsible authorities (designated under the Act and who include local authorities) have a duty to carry out certain functions (including, in the case of local authorities, flood prevention, road drainage and planning functions and, in the case of the Scottish Ministers and SEPA, functions under CAR) in compliance with the requirements of the EC Water Framework Directive.
They also have a duty, so far as is consistent with relevant enactments or the designated functions in question, and having regard to social and economic impacts:
"to promote sustainable flood management, and act in the way best calculated to contribute to the achievement of sustainable development."
In respect of flood risk management, the 2003 Act (section 2(3) and (4)) requires the Scottish Ministers, SEPA and the responsible authorities "to work in an integrated fashion and co-operate with each other to promote sustainable flood management" so far as practicable.
In practice this means that local authorities are required to promote sustainable flood management when carrying out flood prevention functions under the 1961 Act and should co-operate with each other and (where possible) with other responsible authorities when doing so. However "sustainable flood management" is not given a specific meaning in the 2003 Act. That is why FIAC proposed that it should be clear what it comprises so that there is a common understanding of what compliance with the duty to promote sustainable flood management might involve.
The River Basin Management Plan is a 6-yearly statement which sets out how we are meeting the requirements of the Water Framework Directive and how we are planning to continue to do so. Producing such plans will involve identifying risks to the status of our water environment, and assessing how and to what extent these risks can be addressed in the current or subsequent planning cycles.
The objective setting process will allow us to strike the right balance between protecting the water environment and securing its sustainable use for the purposes of economic and social development. The planning process will also provide new opportunities for interested parties to become actively involved in shaping how we protect and improve our river basin districts. The plans do not cover drains or sewers, which are the responsibility of Scottish Water.
The Water Environment (Controlled Activities) (Scotland) Regulations 2005.
Section 20 of the 2003 Act made provision for a new system to regulate activities which affect the water environment, which are known as "controlled activities". The new system was established by the Water Environment (Controlled Activities) (Scotland) Regulations 2005 ( CAR). Certain activities (generally more minor activities) are automatically authorised if they comply with rules (known as "general binding rules"), most of which are set out in CAR, others require to be registered with SEPA and may be subject to conditions imposed by SEPA and other activities (generally those which will have a more major impact on the water environment) require a formal water use licence to be granted by SEPA.
The Scottish Ministers have a role in directing SEPA, they can call in and determine particular applications and they also determine appeals against decisions taken by SEPA under CAR. Since impoundments and engineering works for flood defence will generally be controlled activities under CAR (the position for certain coastal works is more complex, with some authorisations governed by the Food and Environment Protection Act 1985 rather than CAR), authorisation under the CAR regime will be required for most flood management activities (although some more minor activities, carried out as part of management and maintenance of watercourses under the 1961 Act, may be authorised under general binding rules). Further details about CAR can be found at: http://www.sepa.org.uk/wfd/index.htm .
The EC Directive on the Assessment and Management of Flood Risks
The EC Floods Directive builds on and is closely related to the Water Framework Directive. It is now in force but does not have to be implemented by Member States until 2009. The Directive creates a 3-step approach to flood management. Member states will first have to undertake a preliminary flood risk assessment. Where a significant flood risk exists, the competent authority/ies will need to develop a flood map and flood risk management plans must then be drawn up for these zones. The management plans should include measures to reduce the probability of flooding and so its potential consequences. The plans will also need to address all phases of the flood risk management cycle but focus particularly on prevention, protection and preparation.
The Environment Act 1995
Under section 25 of the Environment Act 1995 and Part VI of the Agriculture Act 1970, SEPA has a variety of responsibilities in relation to flooding. SEPA has discretionary powers for the provision of Flood Warning for Scotland and it currently exercises these by operating the formal flood warning schemes, in partnership with other responsible authorities, and the operation of Floodline (including provision of 24 hour Flood Watch cover for all of Scotland by monitoring of data from river levels, rainfall, tide predictions and weather forecasts). SEPA has the function of assessing as far as it considers appropriate the risk of flooding in any area of Scotland and a duty to provide advice to planning authorities based on the information held. SEPA can also provide advice to local authorities on flood risk for planning purposes and on flood prevention. Under the Act, provision of information in response to public queries on flood risk areas and properties is also their responsibility.
The Water Industry (Scotland) Act 2002 ("the 2002 Act") and Sewerage (Scotland) Act 1968 ("the 1968 Act")
This gives responsibilities to Scottish Water to manage the discharge of surface water that enters its drainage systems (by providing sewers and public SUD systems) and to maintain water supplies and drainage infrastructure. As mentioned above, there is an interaction between the drainage of surface water under the 1968 Act and drainage of roads under the Roads (Scotland) Act 1984. The 1968 Act defines "surface water" as run-off of rainwater from roofs and paved ground surfaces "within the curtilage of premises" so the term does not generally cover run-off from roads. However, section 7 of the 1968 Act allows roads authorities to enter into agreements with Scottish Water so that Scottish Water's sewers, SUD systems and drains can be used to carry run-off from roads and/or so that roads authority drains or other infrastructure can be used to carry surface water from premises.
The provisions about SUDS in the 1968 Act are relatively new, having been inserted by the 2003 Act and brought into force in autumn 2007.
Under Section 25 of the 2002 act, Scottish Water at its discretion may also engage with 3 rd parties to carry out activities that are consistent with its core function. Scottish Water could thus collaborate with local authorities or private contractors on matters related to sustainable urban drainage systems ( SUDS) in accordance with its technical manual "Sewerage for Scotland" (2 nd Edition).
The Civil Contingencies Act 2004
This Act and accompanying regulations and non-legislative measures will deliver a single framework for civil protection in the United Kingdom capable of meeting the challenges of the twenty-first century. The Act is separated into two substantive parts:
- Part 1: focuses on local arrangements for civil protection, establishing a statutory framework of roles and responsibilities for local responders.
- Part 2: focuses on emergency powers, establishing a modern framework for the use of special legislative measures that might be necessary to deal with the effects of the most serious emergencies.
The basic principle applied in Scotland and the UK is of local management of incidents. Eight strategic coordinating groups throughout Scotland, led by the Chief Constable and Local authority Chief Executives, make detailed plans for all types of incidents in their area. These plans are exercised regularly and all groups have experience of dealing with different types of emergencies.
At the Scottish level the Scottish Government chairs the Scottish Emergencies Co-ordinating Committee ( SECC), which ensures that steps are taken to respond to the changing risk environment. It also ensures that work is co-ordinated with the UK Government's Civil Contingencies Secretariat. Membership of SECC includes the Scottish Government, emergency services, local authorities and the Military.
At Scottish Ministerial level sits the Ministerial Group on Civil Contingencies ( MGCC) chaired by the Minister for Justice and comprising the Ministers for Environment and Rural Development, Finance and Public Service Reform, Health and Community Care, Transport, Parliamentary Business and the Lord Advocate.
The Reservoirs Act 1975
This is an administrative structure to manage reservoirs, whether constructed or planned, that minimises the risk of water escaping . The Act does not define safety. What it does define is the regime of inspection and the function and responsibilities of who will carry this out.
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