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1. Partial Regulatory Impact Assessment

Partial Regulatory Impact Assessment of Proposals for Draft Flooding Bill

1.1 This partial Regulatory Impact Assessment has been prepared to assess the cost and benefits for proposals for the draft Flooding Bill.

1.2 The Bill is intended to establish a framework within which sustainable flood risk management in Scotland will operate more effectively. The proposals will aim to create a more joined up approach, eliminating duplication of effort and ensuring that the flood risk management process will be more streamlined and better co-ordinated. The Bill will transpose the EC Directive on the Assessment and Management of Flood Risk. The Bill will also set out proposals to transfer responsibility for enforcement of the Reservoirs Act 1975 in Scotland from local authorities to a single enforcement authority.

2. Purpose and intended effect of proposals

Objectives

2.1 Currently there is no strategic overview of flood risk management in Scotland, and 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, and funding on a first come first serve basis.

2.2 The Bill will identify a competent authority with overall responsibility for the implementation of the EC Floods Directive and responsible authorities for the purposes of flood risk management planning. Ministers, SEPA and the responsible authorities will be under a duty to promote sustainable flood management when carrying out their flood risk management functions.

2.3 The competent authority will fulfil a strategic, coordinating role in flood risk management. It will undertake preliminary flood risk assessments ( PFRA) to create a national picture of flood risk in Scotland, by 22 December 2011. It will undertake Flood Risk and Hazard Mapping for those areas identified through the PFRA as being at significant flood risk by 22 December 2013. It will also produce strategic Area Flood Risk Management Plans that will contain an assessment of flood risk in each catchment area, and measures for the alleviation/management of flood risk. These plans 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' ie local authorities and others.

2.4 The proposals for the draft Bill will:

• reform the current legislation covering flood protection and prevention- the Flood Prevention (Scotland) Act 1961 (The 1961 Act);
• transpose the EC Directive on the Assessment and Management of Flood Risks (the Floods Directive);
• establish a streamlined approach to developing and implementing measures to manage flood risk;
• create a framework for a sustainable, catchment focused approach to flood risk management; and
• Set out proposals to transfer responsibility for enforcement of the Reservoirs Act 1975 in Scotland from local authorities to a single enforcement authority.

Background

2.5 The First Minister announced on 5 ^th 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 modern approach to flood management is in place across Scotland.

2.6 Flooding can have serious effects on people, their homes and businesses, and their health. According to the most recent flood maps almost 100,000 properties in Scotland are either at risk of fluvial flooding or lie within coastal flood zones. Flooding may also arise from sewers overflowing and from the overland flow of surface water (pluvial flooding), as a result of heavy and intense rainfall. More generally, flooding impacts on the transport infrastructure and on many other aspects of people's lives.

2.7 Scotland has experienced a number of damaging floods in recent years: Perth 1993, Strathclyde 1994, Edinburgh 2000, Elgin 1997 and 2002 and Hawick 2005, which equally resulted in suffering and distress to those affected by the floods.

2.8 A wide range of legislation underpins flood risk management in Scotland, much of which is now outdated and does not reflect changes to the way that government and local services are delivered in Scotland, including the creation of the Scottish Government, unitary local authorities, Scottish Water and SEPA.

2.9 Similarly, current legislation does not interact well with modern approaches to flood management, which are underpinned by catchment focused planning of a range of measures to alleviate and avoid flood risk as well promoting awareness of flood risk and improving assistance once flooding has occurred.

2.10 EU Environment Ministers agreed in October 2004 that there was a need for greater European coordination of flood risk management, leading to proposals for a new EC Directive. The purpose of the Directive, which came into force in December 2007, is to establish a common framework for the assessment and management of flood risks. The Floods Directive requires action by Member States in 3 main areas:

• Production of preliminary flood risk assessments
• Production of flood hazard maps and flood risk maps
• Production of flood risk management plans

The Floods Directive must be transposed into Scots Law by December 2009.

2.11 In Scotland, it is up to owners to provide a level of protection from flooding appropriate to their property, including overland flooding caused by the build up of water on land following heavy rainfall or by a high water table causing ponding of standing water in low lying areas.

2.12 Several public bodies have powers to act in the general interest in the light of local circumstances; local authorities, SEPA, Scottish Water and the Scottish Ministers. The statutory responsibility for flooding however is currently widespread and at times unclear, leading to a piecemeal approach being adopted in many instances. The Government's proposals for a Flooding Bill will shift the emphasis to a catchment focused approach to managing flood risk. As a result, co-operation between responsible authorities will be required in order to create a fully integrated approach to flood management.

Reservoirs

2.13 The objective of the proposed reform of the Reservoirs Act 1975 is to increase reservoir safety by putting measures in place which will reduce the likelihood of a structure failing, thereby increasing resilience to such events. In order to achieve this, an improvement in the reporting cycle would be desired.

2.14 Achievement of this objective could be gained by the proposed amendments; to provide for the duties and powers given to local authorities, except those relevant to local authorities' functions as reservoir undertakers, to be transferred to one single body. This proposed transfer of responsibility for enforcement of the Reservoirs Act 1975 would ensure a uniform and efficient application of legislative powers throughout Scotland. The transfer would ensure that one body assumes full responsibility for the following:-

• Maintaining a register of reservoirs (and making this information available to the public),
• Ensuring that the Undertaker has appointed a Supervising Engineer,
• Ensuring that the Undertaker commissions regular inspections of the dam by an Inspecting Engineer,
• Enforcing the Reservoirs Act 1975 by influencing, warning, cautioning and ultimately prosecuting non-compliant Undertakers,
• Commissioning essential works required in the 'Interests of Safety' in the event of non-compliance and recouping full costs incurred from the Undertaker,
• Producing a Biennial Report for submission to the Scottish Government,
• Acting in an emergency if the Undertaker cannot be found or identified.

Rationale for Government Intervention

2.15 The Bill is intended to establish a framework within which sustainable flood risk management in Scotland will operate more effectively than at present. Although we are seeking to create a more joined up approach, this may not make the process of implementing flood alleviation measures any quicker. Rather it will ensure that there is no duplication of effort, and that the flood risk management process will be more streamlined and better co-ordinated.

2.16 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, and sewerage & land drainage).

2.17 There is no strategic overview of flood risk management in Scotland, and 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, and funding has been based on a first come, first served basis.

2.18 The Flood Prevention (Scotland) Act 1961 is the main piece of legislation for managing flood risk from rivers and the sea, but it was largely 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. 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 as the cause of the lengthy 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 WEWS Act) and so requires local authorities to pursue three separate statutory processes in order to get a scheme built

2.19 There is a 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 authorised under the 1961 Act.

2.20 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.

2.21 There is no legal restriction on building on a flood plain, although SPP7 - Planning and Flooding, published in February 2004, strengthened planning guidance on the balance between how we use land and avoid inappropriate development on flood plains.

Reservoirs

2.22 The safe operation and management of reservoirs to reduce flood risk is extremely important. A dam failure could have major consequences, including loss of life. Although the responsibility for safety remains with the undertakers, enforcing this responsibility is an important role.

2.23 A transfer of authority would ensure greater resilience to the risk of dam breaches as one body would take responsibility for, and accumulate knowledge on, all reservoirs in Scotland. The concentration of enforcement duties within Scotland in one body would provide not only a more focussed approach on matters affecting the safety of reservoirs but also an opportunity for Ministers to receive advice and an overview from a single public body, sponsored by the Government, on the working of the Act in Scotland and the role of panel engineers. As reservoir safety is currently bound by the Reservoirs Act 1975, an amendment to this is required to be undertaken by Scottish Ministers otherwise the status-quo would remain.

2.24 Scotland is increasing in the position that, if legislation is not amended, the risk of dam failure could increase. Inconsistent and infrequent reporting of reservoir works may lead to poor tracking of the progress of these works, with potential catastrophic consequences should a dam breach. The appointment of a single enforcement authority would also result in accurate data regarding the number of reservoirs under the Act, being recorded at all times, providing an instant national overview.

3. Consultation

Within Government

3.1 The consultation proposals take into account the recommendations of the Flooding Issues Advisory Committee ( FIAC), and of the more recently formed Flooding Bill Advisory Group.

3.2 With regards to Reservoir Safety proposals, local authorities were informally consulted on our proposed amendments during our informal scoping exercise in March 2005. Both SEPA and SEPA Sponsorship have also been consulted.

Public Consultation

3.3 The public consultation is designed to obtain the views of those with a Flood Risk Management and Reservoir Safety interest. We have invited a number of parishioners, professionals and academics with a direct interest in flood risk management and Reservoir Safety for their views. However as this is a public consultation anyone can respond.

4. Options

The following are proposals for the Flooding Bill:

Option 1 - Do Nothing

4.1 At the recent Flooding Summit in September 2007 held by Scottish Ministers, the consensus from flood risk management parishioners was that the current legislation is outdated and inflexible.

4.2 The EC Floods Directive must be transposed into Scots Law by December 2009, albeit not necessarily through primary legislation, however given the support for a Flooding Bill, this seems the ideal legislative vehicle for transposition.

4.3 The enforcement responsibility for reservoir safety under the Reservoir Safety Act 1975 remains with the 32 local authorities.

Option 2 - Adopt proposals for Flooding Bill, which includes Ministerial approval to also grant deemed Planning permission.

4..4 Under this option, when Scottish Ministers confirm a flood risk management measure they would make a statutory Direction that planning permission would be deemed to be granted for relevant parts.

4.5 The EC requires transposition of the Floods Directive by December 2009, which establish a common framework for the assessment and management of flood risks and requires action in three main areas;

• Production of preliminary flood risk assessments
• Production of flood hazard maps and flood risk maps
• Production of flood risk management plans

4.6 Appoint a competent authority who will fulfil a strategic, coordinating role in flood risk management. Responsible authorities to work with the competent authority in delivering a co-ordinated approach. These will include local authorities and Scottish Water.

4.7 A hierarchy of plans which will set the strategic framework for delivery of flood risk management in Scotland, including Area Flood Risk Management Plans and Local Flood Risk Management Plans developed in line with the responsible authorities' duty to promote sustainable flood risk management.

4.8 The Bill proposes to streamline the process for implementing flood risk management measures by revoking the current flooding legislation, Flood Prevention (Scotland) Act 1961 and wholly removing the statutory process, and the need for confirmation by Scottish Ministers.

4.9 The transfer of responsibility for enforcement of the Reservoirs Act 1975 in Scotland from 32 local authorities to a single national enforcement authority.

Option 3 - Adopt proposals for Flooding Bill, which includes the removal of the Ministerial process and rely wholly on local authority based procedures.

4.10 The same as option 2 with the exception of the removal of the Ministerial approval process and rely wholly on local authority based procedures which would carry deemed planning consent in a similar way as to other local authority development activity.

5. Costs and Benefits

Sectors and Groups affected

5.1 The following people may be affected by the proposals;

• people at risk from flooding
• Local authorities, particularly flood engineers and planners
• Other public bodies including SEPA, Scottish Water and SNH
• Landowners/farmers
• Developers/commercial businesses
• Civil authorities, such as police and fire services
• Insurance companies
• Environmental non-government organisations
• Tax payers
• Scottish Government

Benefits

5.2 The overarching benefit of these proposals will be a more strategic, joined up approach to catchment planning and flood risk management in Scotland, with streamlined processes and de-duplication of effort. The Flooding Bill will establish a framework within which sustainable flood risk management will operate more effectively than at present.

5.3 In transposing the EC Directive on the Assessment and Management of Flood Risk, the Bill will establish a hierarchy of catchment plans; Area Flood Risk Management Plans and Local Flood Risk Management Plans, which will set out objectives for the assessment of flood risk and flood management measures. The plans will require responsible authorities to work with the competent authority in delivering a co-ordinated approach across Scotland.

5.4 The Flooding Bill will define the roles and responsibilities of the competent and responsible authorities for flood risk management in Scotland and place a duty on them to co-operate in the development of the Area and Local Flood Risk Management Plans.

5.5 The transfer of responsibility for enforcement of the Reservoir Safety Act 1975 to a single enforcement authority will result in improved reporting procedures and a co-ordinated approach to the collation and analysis of all reservoir safety information. This will enable the enforcement authority to have an overarching view of all incidents, inspections and works in the interest of safety, for reservoirs covered by the Act. The greatest gains would accrue in improved asset management and the application of objective risk management.

Costs

5.6 Compliance with the EC Directive is likely to have both cost and resource implications for the competent authority, SEPA and the responsible authorities such as Scottish Water, SNH and other public bodies. In the short term, SEPA was initially awarded an additional £77,238 per annum in SR07 for the work on the transposition and implementation of the EC Directive. The requirement to produce Flood Risk and Flood Hazards maps will require funding. The cost of the most recent flood maps produced by SEPA was £2 million. This will also impact on local authorities in relation to the requirement to produce and implement Local and Area Flood Risk Management Plans and as the bodies for delivering flood risk management in Scotland. At present we do not have estimates of the potential cost of establishing a flood risk management planning regime in Scotland, but we are planning to carry out a pilot study that will give us a better idea of timescales and the economic impact.

5.7 Whilst there are likely to be increased costs associated with the strategic co-ordination of sustainable flood management nationally and potentially the planning and development of catchment projects, these may be offset in the longer term, through a co-operative catchment approach to flood risk management responsibilities and funding. This would ultimately lead to the reduction in economic costs to business and domestic properties and infrastructure and the improvement of the social well being of people in at risk areas.

5.8 There will be costs, particularly in the early stages of implementation, associated with training and resourcing flood engineers, planners and others such as hydrologists and flood modellers. However, investment in training and subsequent knowledge transfer through a co-ordinated catchment approach will help parishioners deliver the most cost effective solutions for flood resilience.

5.9 The enforcement role of the Reservoirs Act is predominately administrative and the transfer of responsibility may see the need for additional posts and funding for the single enforcement authority. Provisions for remedial work to be undertaken and an engineer appointed, should this be necessary, may also have a potential cost implication. However if Option 1 - Do Nothing, is followed it is anticipated that no additional costs will be incurred.

5.10 Both Option 2 and 3 may incur similar costs, as the EC Directive must be transposed and implemented. There may be savings with the reduction of possible public inquiries which currently exists in flood risk management process as both option 2 and 3 would carry deemed planning permission.

5.11 If Option 1 - Do Nothing is adopted there may be ramifications from the European Commission if the transposition is delayed and indeed not implemented. Likewise, stakeholders and flood risk management practitioners and vulnerable communities at risk of flooding will not benefit from a more sustainable and flexible approach to flood risk management as proposed in the Bill.

5.12 Overall, the proposals seek to ensure that flood resilience, in terms of awareness, avoidance, alleviation and assistance is delivered at lowest whole life cost to Scotland.

6. Small/Micro Firms Impact Test

6.1 It is not anticipated that the proposals for the Flooding Bill will significantly affect small or micro businesses. In some cases, land belonging to farmers or others private landowners may be subject to some changes of use, physical modification or increased flood risk. The National Farmers Union Scotland is a member of the Flooding Bill Advisory Group and other land management stakeholders such as the Scottish Rural Property and Business Association will be consulted.

7. Legal Aid Impact Test

7.1 Implementation of the Flooding Bill proposals may lead to a reduction in the number of objections and public local inquiry given that within the promotion of a Flood Prevention Scheme the number of objection opportunities may be reduced. However, it is not known whether the Bill proposals would lead to an increase in the number of applications for legal aid from private individuals.

8. 'Test Run' of Business Forms

8.1 The proposals do not include any new forms which will impact directly on businesses.

9. Competition Assessment

9.1 These proposals are considered to have an impact on all public services or commercial activities evenly in relation to flood risk management and so there will be no advantage to any particular group or sector.

10. Enforcement, sanctions, and monitoring

10.1 It is proposed to revoke the current legislation, Flood Prevention (Scotland) Act 1961 and transpose the EC directive on the Assessment and Management of Flood Risk. The EC Directive specifies a statutory timetable for the production and updating of the flood risk and flood hazard maps.

10.2 It is proposed that amendment be made to the Reservoirs Act 1975 to transfer enforcement and reporting responsibilities of local authorities to one single national body. Scottish Ministers will remain responsible for intervening where it is evident that legislation is not being complied with.

10.3 Enforcement, sanctions and monitoring of all the changes cannot be fully determined until a way forward has formally been decided.

Sections 11 -14 will be completed after the consultation and included in the full Regulatory Impact Assessment.

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