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Explanatory Notes

Flood Risk Management (Scotland) Act

2009 asp 6

Contents

  1. Introduction

  2. Background – EC Floods Directive

  3. Background – the Flood Prevention (Scotland) Act 1961

  4. The Act – Overview

  5. The Act – Section by Section

    1. Part 1 – General Duty, Directions and Guidance

      1. Section 1 – General duty

      2. Section 2 – Directions and guidance

    2. Part 2 – Principal Expressions

      1. Section 3 – “Flood” and “flood risk”

      2. Section 5 – Responsible authorities

    3. Part 3 – Flood Risk Assessment, Maps and Plans

      1. Section 7 – General purpose of Part 3

      2. Section 8 – Flood risk management districts

      3. Section 9 – SEPA to prepare flood risk assessments

      4. Section 10 – Flood risk assessment: review

      5. Section 11 – Flood risk assessments: regulations

      6. Section 12 – Flood risk assessments: availability for public inspection

      7. Section 13 – SEPA to identify potentially vulnerable areas and local plan districts

      8. Section 14 – Potentially vulnerable areas and local plan districts: review

      9. Section 15 – Potentially vulnerable areas and local plan districts: regulations

      10. Section 16 – Scottish Water to assess flood risk from sewerage systems

      11. Section 17 - Local authorities to prepare maps of bodies of water etc

      12. Section 18 – Local authorities to assess bodies of water

      13. Section 19 - SEPA to prepare maps of artificial structures and natural features

      14. Section 20 – SEPA to assess possible contribution of alteration etc. of natural features and characteristics

      15. Section 21 – SEPA to prepare flood hazard maps and flood risk maps

      16. Section 22 – Flood hazard maps

      17. Section 23 – Flood risk maps

      18. Section 24 – Flood hazard maps and flood risk maps: review

      19. Section 25 – Flood hazard maps and flood risk maps: availability for public inspection

      20. Section 26 – Flood hazard maps and flood risk maps: regulations

      21. Section 27 – SEPA to prepare flood risk management plans

      22. Section 28 – Flood risk management plans: objectives and measures

      23. Section 29 – Flood risk management plans: guidance

      24. Section 30 – Flood risk management plans: publicity of drafts etc. and consultation

      25. Section 31 – Flood risk management plans: submission for approval

      26. Section 32 – Flood risk management plans: approval and publication

      27. Section 33 – Flood risk management plans: review

      28. Section 34 – Local authorities to prepare local flood risk management plans

      29. Section 35 – Local flood risk management plans: publicity and consultation

      30. Section 36 – Local flood risk management plans: completion and publication

      31. Section 37 – Local flood risk management plans: interim report

      32. Section 38 – Local flood risk management plans: final report

      33. Section 39 – Local flood risk management plans: joint working

      34. Section 40 – Regulations relating to flood risk management plans and local flood risk management plans

      35. Section 41 – Duty to have regard to flood risk management plans and local flood risk management plans

      36. Section 42 – Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008

      37. Section 43 – Power of SEPA to obtain information, documents and assistance

      38. Section 44 – Power of lead authorities to obtain information, documents and assistance

      39. Section 45 – Power of local authorities to obtain information

      40. Section 46 – Power to obtain information, documents and assistance: supplementary

      41. Section 47 – Power to obtain information, documents and assistance: offence

      42. Section 48 – Consistency and co-ordination with characterisations and plans under the 2003 Act

      43. Section 49 – District flood risk advisory groups

      44. Section 50 – Sub-district flood risk advisory groups

      45. Section 51 – Power to give effect to Community obligations etc.

      46. Section 52 – Annual report on implementation of Directive

      47. Section 53 – Availability of documents for public inspection

      48. Section 54 – Publicity of matters

      49. Section 55 – Interpretation of Part 3

    4. Part 4 – Flood Risk Management: Local Authority Functions

      1. Section 56 – General power to manage flood risk

      2. Section 57 – Limits of general power

      3. Section 58 – Limits of general power: statutory undertakings

      4. Section 59 - Duty to carry out clearance and repair works

      5. Section 60 – Flood protection schemes

      6. Section 61 – Orders under the Land Drainage (Scotland) Act 1958

      7. Section 62 - Registers of flood protection schemes

      8. Section 63 - Registers of flood protection schemes: information about schemes under 1961 Act

      9. Section 64 - Registers of flood protection schemes: regulations etc

      10. Section 65 – Deemed planning permission for scheme work

      11. Section 66 – Acquisition of land

      12. Section 67 – Recovery of expenses

      13. Section 68 – Information about ownership etc. of land

      14. Section 69 – Damage to certain flood protection work

    5. Part 5 – Sepa: Other Flood Risk Management Functions

      1. Section 72 – Advice to planning authorities and others as to flood risk

      2. Section 73 – Other assessment and maps of flood risk

      3. Section 74 – Flood warning

      4. Section 75 – Assessment of whether flood warning systems should be provided or altered

      5. Section 76 – Provision, alteration etc. of flood warning system

      6. Section 77 – Consultation required by sections 75 and 76

      7. Section 78 – SEPA’s power to obtain information about land

    6. Part 6 – Powers of Entry and Compensation

      1. Section 79 – Powers of entry

      2. Section 80 – Warrants authorising entry

      3. Section 81 – Powers of entry:  supplementary

      4. Section 82 – Compensation

      5. Section 83 – Compensation: supplementary

    7. Part 7 – Reservoirs

      1. Section 84 – SEPA to be enforcement authority under the Reservoirs Act 1975

      2. Section 85 – Transitional arrangements

      3. Section 86 – Service of documents

      4. Section 87 – Extension of enforcement authority’s reserve powers

      5. Section 88 – Incident reporting

      6. Section 89 - Flood Plans

      7. Section 90 – Reservoirs Act 1975: Crown application

    8. Part 8 – General

      1. Section 91 – Crown application

      2. Section 92 – Offences by bodies corporate etc.

      3. Section 93 – Ancillary provision

      4. Section 94 – Orders and regulations

      5. Section 95 – Interpretation: general

      6. Section 96 – Minor and consequential modifications

      7. Section 97 – Commencement and short title

  6. The Act – Schedules

    1. Schedule 1 – Matters to Be Included in Flood Risk Management Plans

    2. Schedule 2 – Flood Protection Schemes: Procedure Etc.

    3. Schedule 3 – Minor and Consequential Modifications

    4. Schedule 4 – Index

  7. Parliamentary History

Introduction

1.These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2.The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

Background – EC Floods Directive

3.The flood risk assessment and management provisions of the Act (Part 3) make provision and enable provision to be made for or in connection with implementing the EC Floods Directive(1) (“the Directive”).

4.The purpose of the Directive (set out in Article 1) is to establish a framework for the assessment and management of flood risks, aiming at the reduction of the adverse consequences for human health, the environment, cultural heritage and economic activity associated with floods.

5.The Directive applies to all forms of flooding by defining “flood” to include all temporary covering by water of land not normally covered by water. This includes flooding from rivers, lochs, groundwater and the sea as well as flooding from surface water runoff but Article 2 of the Directive allows Member States to choose whether to exclude floods from sewerage systems. The Directive requires Member States to:

  • produce preliminary flood risk assessments (deadline – December 2011)

  • produce flood hazard maps and flood risk maps (deadline – December 2013)

  • produce flood risk management plans (deadline – December 2015)

6.The Directive gives Member States the freedom to set their own objectives for flood risk management, and allows member states to utilise existing tools, information and plans.

Background – the Flood Prevention (Scotland) Act 1961

7.Part 4 of the Act replaces the Flood Prevention (Scotland) Act 1961 (“the 1961 Act”) and makes provision for a revised statutory process for flood protection schemes (known as flood prevention schemes under the 1961 Act). The 1961 Act gave local authorities the power to carry out measures for the prevention or mitigation of flooding of non-agricultural land including:

  • cleansing any watercourse or embankment;

  • repairing any watercourse or embankment;

  • maintenance of any watercourse or embankment;

  • improvement, alteration or reinstatement of a watercourse, work or apparatus;

  • construction of a new watercourse, work or apparatus.

8.These powers were permissive and discretionary only, i.e. the authority could exercise the powers but did not have to. Additionally, no work other than maintenance could be carried out under the 1961 Act without the promotion of a flood prevention scheme by the local authority. Flood prevention schemes were confirmed under the 1961 Act by the Secretary of State and then since devolution by the Scottish Ministers and financially supported by the Scottish Government if they complied with the approved cost/benefit ratio.

9.The Flood Prevention and Land Drainage (Scotland) Act 1997 amended the 1961 Act by placing statutory duties on local authorities including:

  • requiring the local authority to assess all watercourses from time to time to ascertain whether or not they are likely to cause flooding of non-agricultural land;

  • requiring the local authority to carry out works to reduce the likelihood of flooding of non-agricultural land caused by the condition of a watercourse;

  • requiring local authorities to liaise with adjacent authorities in order to warn them of flood risk from watercourses;

  • requiring local authorities to prepare biennial reports.

The Act – Overview

10.The Act makes provision in relation to five main areas: (i) coordination and cooperation within the domain of flood risk management; (ii) assessment of flood risk and preparation of flood risk maps and flood risk management plans, including implementing the EC Floods Directive; (iii) amendments to local authority and SEPA functions for flood risk management; (iv) a revised statutory process for flood protection schemes; and (v) amendments to the enforcement regime for the safe operation of reservoirs.

11.The Act is separated into eight Parts:

  • PART 1 creates general duties which Scottish Ministers, SEPA, and responsible authorities must comply with when exercising their functions in relation to flood risk management. These include a duty to exercise those functions with a view to reducing flood risk and to collaborate when doing so and a duty to take account of guidance and comply with directions in relation to flood risk management.

  • PART 2 defines some of the principal expressions used in the Act, including “flood” and “flood risk”.

  • PART 3 provides for the preparation and review of the flood risk assessments, flood hazard and flood risk maps and flood risk management plans which are required by the Directive. It also provides for local flood risk management plans to be prepared and reviewed. It requires advisory groups to be created to advise on the preparation of these documents and it imposes a duty on public authorities, including the Scottish Ministers, to have regard to flood risk management plans and local flood risk management plans where relevant.

  • PART 4 sets out provisions to replace the 1961 Act. These provisions give local authorities broad powers to allow them to take forward a full range of flood risk management measures.

  • PART 5 replaces SEPA’s powers to provide flood warning systems and carry out flood risk assessments under the Agriculture Act 1970 and the Environment Act 1995. The provisions provide SEPA with a new statutory framework for exercising these flood risk management functions.

  • PART 6 sets out new powers of entry and compensation provisions to support local authorities and SEPA in exercising their statutory responsibilities under the Act.

  • PART 7 amends the Reservoirs Act 1975 (“the 1975 Act”) to transfer responsibility for enforcement of the 1975 Act from local authorities to SEPA. It inserts two new sections into the 1975 Act to enable provision to be made, by regulations, to introduce a new system for reporting incidents which could affect safety at reservoirs and to create new requirements to prepare flood plans for reservoirs. It also inserts a new section about the application of that Act to the Crown.

  • PART 8 makes general provision for the making of orders and regulations under the Act. It also makes provision about the application of the Act to the Crown and commencement of the Act.

The Act – Section by Section

Part 1 – General Duty, Directions and Guidance

Section 1 – General duty

12.Section 1(1) places a general duty on the Scottish Ministers, SEPA, local authorities, Scottish Water and other responsible authorities to exercise their flood risk related functions with a view to reducing overall flood risk and, in particular, to do so to secure compliance with the Directive. “Flood risk” is defined in section 3.

13.“Responsible authorities” are defined in section 5 and include local authorities, Scottish Water and any other public bodies and office holders designated by the Scottish Ministers. “Flood risk related functions” are defined in subsection (4) and include functions under the Act and any other functions relevant to flood risk management which the Scottish Ministers may specify by order.

14.Because the definition of “flood risk related functions” includes functions under the Act, the general duty to act with a view to reducing overall flood risk applies to the Scottish Ministers when designating responsible authorities and specifying new flood risk related functions and to SEPA, the Scottish Ministers and responsible authorities when they are involved in the preparation of flood risk assessments, flood maps and flood risk management plans under Part 3 of the Act. It also applies to local authorities and to the Scottish Ministers when considering flood protection schemes and to SEPA and the Scottish Ministers when dealing with flood risk assessment and flood warning functions under Part 5 of the Act.

15.Where the exercise of their flood risk related functions affects a flood risk management district, subsection (2)(a) requires the Scottish Ministers, SEPA and responsible authorities to act with a view to achieving the objectives set out in the flood risk management plan for that district. Flood risk management districts are established under section 8 and sections 27 to 33 make provision for flood risk management plans to be prepared, approved and reviewed for those districts.

16.Subsection (2)(b) requires the Scottish Ministers, SEPA and the responsible authorities to take into account social, environmental and economic considerations when exercising their flood risk related functions. This would appear to be consistent with the principle of proportionality in European law which requires that the means of achieving a particular objective should correspond to the importance of, and be necessary for the achievement of, that objective.

17.Subsection (2)(c) requires the Scottish Ministers, SEPA and the responsible authorities to act in the way best calculated to manage flood risk in a sustainable way, to promote sustainable flood risk management, to act in the way best calculated to contribute to sustainable development, and to take steps to raise public awareness of flood risk. These duties apply in so far as is consistent with the purposes of the function in question.

18.Subsection (2)(d) requires the Scottish Ministers, SEPA and the responsible authorities to adopt an integrated approach by co-operating with each other so as to coordinate the exercise of their respective functions for flood risk management, so far as is practicable. This provides flexibility for these bodies to take action in isolation where it is sensible to do so, e.g. in emergency situations. Subsection (3) clarifies that they may enter into agreements with each other for the purposes of co-operation.

Section 2 – Directions and guidance

19.Subsection (1) enables the Scottish Ministers to direct or issue guidance to SEPA and responsible authorities on how they must exercise their flood risk related functions. Subsection (2) then requires SEPA and responsible authorities to comply with such directions and take account of any such guidance. The Scottish Ministers must comply with their general duties under section 1 when giving directions or issuing guidance. Before giving a direction they must also consult the person to whom the direction is to be given, as well as SEPA or any responsible authorities as Scottish Ministers consider appropriate.

20.Subsection (3) enables the Scottish Ministers, for example, to direct that specified functions must be exercised so as to satisfy technical standards set by SEPA.

21.Subsection (5) requires Scottish Ministers to give guidance to SEPA and responsible authorities on acting in the way best calculated to manage flood risk in a sustainable way and on having regard to the social, environmental and economic impact of exercising flood risk functions.

22.Subsection (6) requires this guidance to be given no later than 18 months after commencement of the relevant provision. Subsection (7) requires Scottish Ministers to review and where necessary update the guidance no later than every 6 years. Before issuing or updating guidance given under subsection (5), they must consult SEPA and the responsible authorities, and such other persons as they consider appropriate.

Part 2 – Principal Expressions

Section 3 – “Flood” and “flood risk”

23.In section 3, the definition of “flood” and “flood solely from a sewerage system” determine what types of floods are covered by the Act. The cumulative effect of these definitions is that all forms of flooding are covered by the Act except where the source of the flood is solely from a sewerage system. A flood solely from a sewerage system is a flood containing sewage which is caused solely by a blockage or a failure in a sewerage system and which is not connected with external hydraulics. Floods that are caused by a sewer being overloaded by higher than usual rainfall are covered by the Act. An example of a flood that is not covered by the Act would be where flooding is caused by a sewer collapsing or becoming blocked, and where that collapse or blockage is not a result of external hydraulics, e.g. higher than usual rainfall or river levels.

24.“Flood” means the temporary covering by water from any source of land not normally covered by water. This reference to land includes buildings because “land” is defined for the purposes of references in Acts of the Scottish Parliament in the Interpretation Order(2) and this definition includes buildings and other structures.

25.This section also defines the term “flood risk”. The definition mirrors the definition in Article 2 of the Directive and states that flood risk is the combination of the probability of flooding and the potential adverse consequences of flooding to human health, the environment, cultural heritage and economic activity.

Section 5 – Responsible authorities

26.Section 5 identifies local authorities and Scottish Water as “responsible authorities” and allows the Scottish Ministers to designate other public bodies and office holders as responsible authorities by order. Responsible authorities have to comply with the general duty in Part 1 of the Act. They also have duties under Part 3 to assist SEPA in preparing the flood risk assessments, maps and plans required by the Directive and to assist local authorities in the preparation and completion of local flood risk management plans. Before designating new responsible authorities under this section, the Scottish Ministers must consult SEPA, existing responsible authorities, the proposed new responsible authorities and such other persons as are deemed appropriate. When designating responsible authorities the Scottish Ministers must also comply with their general duty under Part 1 of the Act.

Part 3 – Flood Risk Assessment, Maps and Plans

Section 7 – General purpose of Part 3

27.Section 7 sets out the purpose of Part 3. Article 17.1 of the Directive requires legislation implementing the Directive to contain an express reference to it. This section achieves that and in a way that is consistent with the reference in section 1(1) of the Water Environment and Water Services (Scotland) Act 2003 (“the 2003 Act”) to the Directive that Act implements.

Section 8 – Flood risk management districts

28.This section provides for the creation of flood risk management districts. These districts will provide the geographical basis for the flood risk assessments, flood maps and flood risk management plans to be produced under the rest of Part 3. The districts will either be the same as the river basin districts designated under the 2003 Act, or they will be other areas as designated by the Scottish Ministers. The districts designated under the 2003 Act were identified for the purposes of protecting the water environment and preparing river basin management plans.

29.If the Scottish Ministers choose to designate a flood risk management district, that district must comprise one or more coastal areas or river basins and it must be identified by reference to a map prepared for the purpose of the order and laid before the Scottish Parliament.

30.Subsection (4) requires SEPA to make copies of the order defining the flood risk management district and the maps of the district available for public inspection. Where a flood risk management district is a river basin district, what must be made available for public inspection are the order under the 2003 Act designating it as a river basin district and the related map.

31.The provisions in this section enable the Scottish Ministers to implement Article 3.2(b) of the Directive.

Section 9 – SEPA to prepare flood risk assessments

32.This section requires SEPA to prepare a flood risk assessment for each flood risk management district identified under section 8. It implements Article 4 of the Directive. The deadline for preparation of these flood risk assessments is 22nd December 2011, which is the deadline set by the Directive.

33.A flood risk assessment is to be based on available and readily derivable information (subsection (3)). Information on the maps that must be produced to accompany this work is set out in subsection (4)(a).

34.Subsection (4)(b) requires each flood risk assessment to include a description of any past floods that had a significant adverse impact where similar future floods are still probable and would have a significant adverse impact. The description must also include information on the extent and conveyance route of flood waters.

35.Subsection (4)(c) requires each flood risk assessment to include a description of past floods which would have significant adverse consequences if similar floods were to occur now. The past floods mentioned under this paragraph may not have had significant adverse impacts or there may be no information available about their impacts. This allows consideration to be given to things like changes in land use, for example, a flood in the past may have had little impact if the area affected was undeveloped; however, if that area is now developed, it may be that a similar flood event could have adverse consequences.

36.Each flood risk assessment also must include an assessment of the potential adverse consequences of future floods. Subsection (4)(d) contains a list of issues which should be taken into account when carrying out this assessment. This is based on the list in Article 4(2)(d) of the Directive and also includes reference to natural features and characteristics of any river basin or coastal area.

37.Subsection (5) allows SEPA to include other information in a flood risk assessment where it considers appropriate.

Section 10 – Flood risk assessment: review

38.This section requires SEPA to review and, where appropriate, update the flood risk assessment by 22nd December 2018, or by an earlier date specified by the Scottish Ministers, and then every 6 years thereafter. The 22nd December deadline and the requirement to review every 6 years come from Article 14 of the Directive. Subsection (2) provides that a revised flood risk assessment must comply with the same requirements as an original flood risk assessment prepared under section 9.

Section 11 – Flood risk assessments: regulations

39.Section 11 enables the Scottish Ministers to make more detailed provision, by regulations, as to the preparation, review or updating of flood risk assessments, including the methods and procedures to be followed.

Section 12 – Flood risk assessments: availability for public inspection

40.Section 12 requires SEPA to make copies of the current flood risk assessment available for public inspection. This section should be read with sections 53 and 54, which require the arrangements for making copies available to be publicised and set detailed requirements publishing this and other matters.

Section 13 – SEPA to identify potentially vulnerable areas and local plan districts

41.This section provides for the identification of areas within flood risk management districts where significant flood risks exist or are likely to occur. These areas are referred to as “potentially vulnerable areas”. Flood risk and flood hazard maps must then be produced for such areas under section 21 and flood risk management plans produced under section 27 will set objectives to manage flood risks for the areas.

42.The section also provides for the identification of geographic areas around potentially vulnerable areas for the purpose of preparing local flood risk management plans under section 34. These areas are referred to as “local plan districts” and they must consist of one or more river basins, sub-basins or coastal areas. “River basin” has the same meaning as in the 2003 Act and “sub-basin” is defined in section 55(1). The Scottish Ministers may specify the boundaries of coastal areas under section 55(2).

43.Subsections (1) to (3) require SEPA to prepare and submit to the Scottish Ministers a document identifying potentially vulnerable areas and local plan districts. Subsection (4) sets out the information on which SEPA must base its identification of potentially vulnerable areas and local plan districts. It also requires the areas to be identified with reference to maps.

44.The document must be submitted by SEPA by a date set by the Scottish Ministers under subsection (2), and after any consultation required by regulations made under section 15.

45.The Scottish Ministers may then approve the document (as submitted or with modifications) or reject it and direct SEPA to resubmit it. Subsections (6) to (8) set out arrangements in connection with the consideration, approval or rejection of the document by the Scottish Ministers.

46.This section enables the Scottish Ministers to implement Article 5 of the Directive.

Section 14 – Potentially vulnerable areas and local plan districts: review

47.This section requires SEPA to review and, where appropriate, update the document which identifies potentially vulnerable areas and local plan districts. This review must be carried out by a date specified by the Scottish Ministers and then every 6 years or such lesser period as the Scottish Ministers direct. Subsections (2) to (4) provide that an updated document must comply with the same requirements and that it will be subject to the same approval process as the original document prepared under section 13.

Section 15 – Potentially vulnerable areas and local plan districts: regulations

48.Section 15 enables the Scottish Ministers to make more detailed provision, by regulations, as to the form and content of documents about potentially vulnerable areas and local plan districts, consultation by SEPA in relation to the preparation of such documents, arrangements for making documents available to the public, the process to be followed in preparing, reviewing or updating documents and any other matters in relation to these documents.

Section 16 – Scottish Water to assess flood risk from sewerage systems

49.This section requires Scottish Water to prepare assessments about sewerage flooding for the potentially vulnerable areas identified under section 13 and for other areas identified by SEPA. SEPA must consult Scottish Water and other responsible authorities before identifying other areas for which assessments are required.

1

Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks Back [1]

2

The Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (S.I. 1999/ 1379) Back [2]

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