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EXECUTIVE SUMMARY
The First Minister announced on 5 September 2007 that the Scottish Government will introduce a Flooding Bill in 2008 to modernise the flood risk management system in Scotland. The broad objective in promoting new legislation is to provide the framework to ensure that a fully sustainable approach to flood risk management is in place across Scotland.
Problems With The Current System
At the moment, there are a large number of key players dealing with flooding from all its sources; however there is a lack of co-ordination between the different powers and duties under different legislation (including flood prevention, roads, urban drainage, sewerage and land drainage). This lack of co-ordination is because there is no national framework within which local authorities, Scottish Water, SEPA and others can take decisions relating to the management of flood risk. As a result, flood risk management has been largely reactive. We have to leave this reactive approach behind, and instead look to reduce the risk of significant impacts of flooding through sustainable flood management.
The Flood Prevention (Scotland) Act 1961 is the main piece of legislation for managing flood risk from rivers and the sea, but it was written for previous local government structures and responsibilities, and does not interact well with new duties such as the duty to promote sustainable flood management under the Water Environment and Water Services Act 2003 (The 2003 Act). In particular:
- its emphasis on large scale engineered solutions to flooding problems makes it difficult to implement a catchment wide approach.
- the measures permitted in the Act are only suitable for river and coastal flooding, and would not address all types of flooding as required by a sustainable approach.
- the statutory process set out in the Act is seen by many as the cause of delays in developing and building flood prevention schemes (as they are currently known) as it is not integrated with other statutory processes such as planning and the Controlled Activities Regulations (under the 2003 Act) and so requires local authorities to pursue three separate statutory processes in order to get a scheme built.
Another problem is the lack of integration of water industry infrastructure with other drainage and flooding infrastructure. At the time of the 1961 Act, local authorities were also responsible for water infrastructure and could use the water and sewerage legislation to carry out work on the sewerage infrastructure. They could only use the 1961 Act where the existing sewers or water mains had to be diverted as a consequence of carrying out a flood prevention operation.
Now that Scottish Water is responsible for water industry infrastructure, there are difficulties when proposed flood alleviation measures would require an upgrading of, or improvements to, the sewerage infrastructure which is not on Scottish Water's 6 year work programme.
This splitting of responsibilities has also meant that surface water drainage has become a grey area, where local authorities are responsible for the water on the road surface but Scottish Water is responsible once the water enters its sewers.
Finally, there is no legal restriction on building on a flood plain, although SPP7 - Planning and Flooding, published in February 2004, strengthened planning guidance on striking a balance between how we use land and avoid inappropriate development on flood plains.
The Way Forward
We are seeking views on the following proposals:
- identify a competent authority with overall responsibility for the implementation of the EC Floods Directive and responsible authorities (including local authorities, Scottish Water, SNH and the Forestry Commission) for the purposes of flood risk management planning.
- enable areas for flood risk management planning to be defined by Ministerial direction following consultation with SEPA and the responsible authorities. These areas will cover a single large catchment or combination of multiple catchments including coastal management units.
We require the competent authority to:
- undertake preliminary flood risk assessments ( PFRA) to create a national picture of flood risk in Scotland, by 22 December 2011.
- undertake Flood Risk and Hazard Mapping for those areas identified through the PFRA as being at significant flood risk by 22 December 2013.
- produce strategic Area Flood Risk Management Plans that will coordinate flood risk management objectives and measures across catchments, or groups of catchments, and set the framework in which measures are delivered or planned for at a local level by responsible authorities i.e. local authorities and others.
In preparing these plans, the competent authority will:
- secure the participation of responsible authorities via area advisory groups, and will consult stakeholders.
- submit the plans to the Scottish Ministers by the required date, and will monitor and review in accordance with the requirements of the Floods Directive.
- require local authorities to develop detailed Local Flood Risk Management Plans, prepared in co-operation with the other responsible authorities, which will set out in more detail the measures required to manage the local flood risk.
Local authorities will retain existing duties to:
- assess the condition of watercourses from time to time to ascertain whether their condition was 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.
However, we propose that the form and content of the biennial reports will be prescribed by the Scottish Ministers in secondary legislation, and that it will also be subject to Ministerial guidance.
Local authorities will also have 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. This would enable local authorities to implement the measures agreed in a Local Flood Risk Management Plan.
The present statutory process will be simplified by either:
- retaining a statutory process for approval of flood risk management measures, but for Ministerial confirmation to carry deemed planning permission, or
- removing entirely the Ministerial confirmation process.
The Scottish Government is also seeking views on proposals to introduce a transfer of responsibility for enforcement of the Reservoirs Act 1975 in Scotland from local authorities to a single enforcement authority, and is keen to obtain feedback on which organisation may be best placed to undertake enforcement.
The detailed proposals are set out fully later in this document.
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