The Scottish Government

FLOODING BILL ADVISORY GROUP - STATUTORY PROCESS SUB-GROUP

MEETING 1 (INAUGURAL)

MINUTES OF MEETING

Thursday March 13, 2008

11:00 - 14:00

Room 1F57/58

Victoria Quay

Edinburgh EN6 6QQ

List of attendees:

Apologies:

Remit:

Following apologies and introductions by all present the group's remit was identified.

The role of the group was defined by JT as a "working group". JT went on to say that it is envisaged that ideas and frameworks for the Flooding Bill Statutory Process will be introduced to the group for their thoughts and comments, with input being invited and welcomed from all members.

Consultation:

• JT informed the group that the Flooding Bill Consultation was launched on February 13, 2008 and that the consultation will close on April 23, 2008. Responses have already been received, but it is expected that these will gather momentum as we get nearer to the closing date. JT urged those present to ensure that they respond as soon as possible in order that due consideration may be given to the responses.
• JM asked about what depth of answer the Bill Team was looking for, and JT informed the group that the responses should be as informative as possible. Replying to a further question by JM, JT informed the group that no further formal consultation would be forthcoming after the present one.
• LA asked about the timescale for the Bill and the group was informed that the present plan is for the Bill to be introduced in June 2008. However, JT informed the group that this is subject to the outcome of both the Consultation and the RAE Committee's findings.
• The group was further informed that there are to be 3 themed workshops and 5 Town Hall meetings to supplement the Consultation process.
• The dates and locations for the workshops are:

25th March - Jury's Inn, Glasgow
3rd April - Aberdeen Football Club
15th April - Dunfermline Football Club

• The dates and locations for the Town Hall Meetings are as follows:

Chaired by Cabinet Secretary for Rural Affairs and Environment

Chaired by Minister for Environment

Chaired by Minister for Environment

Chaired by Scottish Government

Chaired by Minister for Environment

• In response to general discussion, SI informed the group that there would be Secondary Legislation, and that Working Groups would also be put together for this part of the legislation.

Outline Proposed Framework for Statutory Process:

· JT supplied copies of a proposed flow chart for the legislative process. In presenting the document, JT clarified the difference between Class A and Class B objectors in that Class A would be defined as those whose property would be directly affected, or who would suffer personal impact by the measure. Class B would then be all other objectors. The proposed flow chart of the legislative process was met with general approval.

· JR suggested that the distinction of Class A and Class B be brought into play much earlier in the process.

· AB noted that this implied more powers for Local Authorities than at present.

· JT agreed with the general consensus that there should be endeavour to promote closer links between FRM and the Planning Process.

· DG commented that the proposed processes will allow the approval, where there are no objections, of clearly defined cases in a much more streamlined manner, while also allowing for escalation to Ministerial level as necessary.

· JM noted that the proposed framework was not necessarily time-saving. JT informed the group that the aim was to reduce the time taken where possible, but the process still had to be transparent and allow for objections to be heard if they cannot be resolved at a local level.

· AB thought that there were areas within the flow chart with no time-scale, and thought that the proposed process would only help if it ensured a streamlined process. There was a consensus that Local Authorities would benefit from specific guidelines to complement the new processes.

Round Table Discussion - Points Raised:

· A general need to streamline Flood Prevention measures and to simplify land issues while equally working within the framework of ECHR.

· Proposals are that the approval of measures should be Local Authority driven and would include Deemed Planning Consent, while also streamlining and minimising the present approval process.

· JS expressed a view that the Farming Industry has exacerbated flooding in many areas, and asked if the issue of land return or compensation will be addressed in the Bill. JT informed the group that, as under the current system, compensation will be addressed on a case by case basis.

· It was agreed that the Draft implies more powers for the Local Authorities.

· JT mentioned that there would no longer be a differentiation between agricultural land and non-agricultural land for the purpose of this Bill.

· The 3 month period set aside for objections to be processed by the Local Authorities was commented on as being excessive. JT suggested that this time was necessary for the administrative process and for negotiation.

· JR noted that the proposals were not a step forward for small schemes/measures (eg extending culverts, raising/lowering a weir level)

· There was a general consensus that the issues of CAR, Planning and FRMP/Scheme Approval should be simultaneously addressed in the initial advertisement and notices. Furthermore it was suggested that objections (whether CAR, Planning or FRMP) could be dealt with simultaneously under the same process. However it was noted that if a proposal received too many objections, then perhaps it was a bad proposal.

· JM suggested that a panel (perhaps SG driven) could assess whether objections are valid, spurious or show vested interest.

· LA asked if the proposed time scales could be extended if necessary, and JT replied that the matter would be examined.

· JS raised the issue of whether Community Councils are to be brought into the process. JT intimated that the Bill will specify the Statutory Consultees.

· LA had reservations about the Class B distinction and wondered whether there would still be ECHR issues. LA also foresaw problems where we could have Local Authorities approving their own applications.

· JR suggested a workaround by nominating a Responsible Authority which was not the Planning Authority.

· The issues of Local Authorities working together jointly were discussed. There were two models - one where a Local Authority promotes the measures and asks the Local Authorities in the catchment to approve them, and the other where the Local Authorities in the catchment jointly promote the measures. Issues of funding, compensation and legality should be clarified within the Bill. LA suggested that Cross Local Authority bodies could be given its own legal identity.

· JT asked the Group how it would feel about Local Authorities using the powers they already have under LG legislation to jointly exercise functions. There was general approval that this would streamline the process.

· There was consensus that the LDP must be consistent with the FRMP and vice versa, otherwise it is foreseen that there would be stumbling blocks.

· The issues of upstream/downstream cause and effect should be addressed and clear guidance given. LA noted there was an issue here of who would be the "judge and the jury."

· There were areas to be addressed regarding the notice required to enter land. JT noted however that existing property rights must be upheld. SI intimated that in cases of urgency, the Sheriff Court can be used.

· RR suggested that the remit of CAR could be strengthened, and it was suggested that the "tweaking" of CAR could be looked at further.

· The differentiation between major and minor was seen as vague. SI commented that this should be qualified by effect and consequence.

· It was also noted that the proposed process would rely on good working relationships between Local Authorities and SEPA.

Next Steps:

1 Members of the group were asked to send in specific examples of casework which they found to be legislatively difficult or problematic. This would enable to group to look at areas where the statutory process could improve the present process.

2 Definitions or guidance should be sought on:

i) clear guidance on how to assess "sustainable"

ii) clear guidance and clarification of "riparian" and its legal definition'.

iii) clear guidance and clarification of "engineering works" and "repair and maintenance"

iv) clarification of "roles and responsibilities"

Next Meeting:

TBA

FBAG Secretariat

March 17, 2008