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Publication - Guidance

Flood Risk Management (Scotland) Act 2009: local authority guidance

Published: 6 Sep 2017

Guidance on the duties of local authorities to assess bodies of water at risk of flooding and carry out clearance and repair works.

63 page PDF

1.1MB

63 page PDF

1.1MB

Contents
Flood Risk Management (Scotland) Act 2009: local authority guidance
5. Schedules of Clearance and Repair

63 page PDF

1.1MB

5. Schedules of Clearance and Repair

Works of clearance and repair are fairly narrowly defined – see Chapter 6 Works of Clearance and Repair.

5.1 Section 18 Schedule activities

As detailed in Chapter 2, different authorities will have different approaches to undertaking clearance and repair works. However, it is essential that there is a shared and common understanding of the need for a level of consistency in the use of Schedules of Clearance and Repair.

As detailed in Chapter 4, such a section 18 schedule, which is to be published, is required to indicate both the planned works of clearance and repair (reference section 18(1) and (2)) and also planned future assessments (reference section 18(3)). In preparing a section 18 schedule, the local authority needs to decide on whether, and to what level, routine inspections, which should inform assessments, are to be included and detailed.

For example, a frequency for inspection and clearance e.g. monthly in the summer, weekly in the winter and daily at times of higher risk perhaps when a flood alert has been issued. This could be classed as future assessment as well as planned works, and is therefore likely to be included in a section 18 schedule. The most important thing is that this is recorded and managed so as to seek to reduce flood risk – clearance and repair works should be focussed on substantially reducing flood risk. However, there is an opportunity to better meet the requirements of the Act and communicate what is being done to manage flood risk from bodies of water assessed as likely to give rise to flooding by including all relevant activities.

Often such activities will be deemed to be of a more routine nature. For example many of the high risk locations will be at culvert entrances, particularly where a trash screen is located. These kind of works are likely to be carried out by manual operatives based on a schedule determined though historical experience.

These activities should be included in the section 18 schedule if it is assessed that these are required to reduce flood risk.

Feedback should be obtained from operatives as there may be opportunities for a reduction in frequency if visits are regularly not leading to clearance works. Alternatively if a screen is heavily blinded on every visit this may indicate that frequency needs to be increased or perhaps more significant works are required to improve or replace the screen.

Other visual assessment work, involving perhaps walking sections of watercourses to determine whether scour damage, debris build-up, siltation, garden waste disposed adjacent to a small watercourse may lead to flood risk is likely to undertaken on a less frequent basis. It is also likely to be undertaken by a technician or perhaps a summer student and is, unlike operatives undertaking screen inspection and clearance, not likely to involve actual immediate clearance works being undertaken.

CCTV of culverted watercourses is another form of visual inspection from which an assessment can be made. Its frequency will be based on historical experience and likely to be reasonably infrequent (every six years perhaps) unless specific issues regularly occur.

5.2 Prioritisation

Firstly, a decision needs to be made on the range of activities that a local authority considers constitute works and assessment, which are to be included in a section 18 schedule.

Secondly, the list of activities needs to be prioritised. As stated elsewhere in this guidance, the use of prioritisation is consistent with the national approach to flood risk management planning. Such an approach is also wholly consistent with priority based budgeting principles that have been widely adopted across local government.

It is such prioritisation where the local authority can manage their ability to undertake activities and expectations in this regard. It is here where affordability of activities can be factored in to the frequency of assessments and nature of works of clearance and repair. It is essential that a risk-based approach is applied to section 18 schedule activities.

Prioritisation should include the following factors:

  • risk to receptor – extent and frequency
  • costs of activities
  • affordability
  • frequency or Delivery dates for activities

The section 18 schedule is a commitment from the local authority on what and when activities will be undertaken. It is legitimate that activities that have a low priority are not given a frequency or delivery date. However, it is considered such activities are still included in the section 18 schedule.

5.3 Clearance and repair works

Works of clearance and repair may be undertaken immediately, i.e. at the same time as the inspection where an onsite assessment is made. Such immediate works and any further works required are assessed following an inspection. Where works are assessed as being required these shall be recorded on the section 18 schedule.

Alternatively, where works are identified that are of a capital nature, e.g. involve an additional asset or improvement in existing asset beyond simple maintenance and repair, these may be considered for inclusion in future capital works, which may be included in the Local Flood Risk Management Plan.

The process to be followed in undertaking assessment of bodies of water, which may lead to clearance and repair works or other actions to be recorded on the section 18 schedule is shown in the flowchart in (in Guidance Flow Chart fold-out – see appendix 9.6)

5.4 Planned and routine works

Any works of clearance and repair must minimise the impact on the water environment and its users.

Significant engineering works in rivers require authorisation under CAR. However repair works and smaller scale activities do not require contact with SEPA before proceeding. In addition, the Regulations allow emergency works to be carried out under certain conditions.

For works that are planned there is ample opportunity to liaise with SEPA and other regulators, and landowners to properly plan and seek necessary approvals. This guidance highlights the need to ensure all relevant legislation is complied with (see paragraph 5.7) however those undertaking section 18 schedule activities should seek appropriate advice.

5.5 Emergency works

With any works that a local authority considers an "emergency" it is highly recommended that contact is made with local SEPA office.

Works of clearance and repair may be required in emergency situations, where the undertaking of controlled activities promptly may be necessary. This often coincides with flood events where a local authority is a Category 1 Responder under wider Civil Contingencies responsibilities.

It is crucial that SEPA, also a Category 1 responder, are contacted as soon as works impacting upon a body of water are identified.

Emergency works are where an immediate response to an incident is required to protect people from harm or the environment from serious harm.

Any emergency works of clearance and repair undertaken must still minimise the impact on the water environment and its users (reference CAR). In an emergency such works may be undertaken at the behest of not only the local authority but also other responders and in particular the Scottish Fire & Rescue Service. It is therefore essential that the need for such emergency works are discussed with SEPA at the very least, as a CAR license will likely be required. Generally, SEPA are accommodating of such necessary emergency works, and will be able to provide verbal approvals that can be followed up with the necessary CAR applications and approvals.

It is considered that the potential for such emergency works and processes to deal with these should be discussed within local resilience groups. Flood risk staff should therefore ensure that this issue is raised with their Civil Contingency and resilience colleagues.

SEPA has published a specific advice note on ' Repair work in rivers after recent floods'. This advice note should be referred to in relation to emergency works.

5.5.1 Urgent works

Urgent works are urgent remedial actions in the aftermath of an incident, flood, or other emergency to make a site safe or prevent significant disruption.

The required approach to dealing with urgent works is essentially the same as emergency works but there is a greater opportunity to discuss the planned activities and seek approvals before they are undertaken.

An example of this kind of works would be the clearance of a trash screen at the time of a SEPA flood alert.

5.5.2 'Non-urgent' emergency works

These are similar to planned works but are a result of an emergency situation. With such works, there is usually sufficient time to consider the risks over a period of time. There is usually time to prepare contingency plans in advance of an emergency situation arising to deal with specific issues. From this point, the approach to planned and routine works should be followed.

5.5.3 Requirements of a Schedule of Clearance and Repair

A standard template has not been provided in this guidance as local authorities will have developed their own formats for schedules of clearance and repair, sharing experience and best practice along the way. This guidance therefore describes the essential requirements that must be included in the schedule and other information considered to be implicit as a requirement of the Act.

  • Essentials from section 18

Details of clearance and repair works that would substantially reduce that risk based on assessment of the relevant bodies of water. This might include:

  • Details of assessment
  • Details of risk to be reduced
  • Details of works to reduce that risk

Date next intended to carry out an assessment, i.e. 'time to time'.

  • Other considerations:

Frequency of assessments (details and dates are included above); and

Frequency of inspections; details of inspections; and links to subsequent assessment (this may be maintained as a separate document to the section 18 schedule, perhaps for internal use only).

5.6 Stakeholder engagement

Local authorities should identify all relevant parties affected by clearance and repair works, as well as inspections, and engage with them in arranging access, sharing of actions or seeking approvals. This might include landowners, community councils, community flood groups and local fisheries' boards. Depending on the scale of works, for example where CAR applies, engagement with SEPA, Historic Scotland and SNH may also be appropriate.

5.7 Other relevant legislation & guidance

There is substantial guidance available to local authorities on their duties and responsibilities under the Act, particularly in terms of Sustainable Flood Risk Management and general Part 4 Guidance.

When preparing section 18 schedules and carrying out any assessments and clearance and repair works authorities should also have regard to their responsibilities and obligations under:

  • Water Environment and Water Services (Scotland) Act 2003
  • The Water Environment (Controlled Activities) (Scotland) Regulations 2011
  • Roads (Scotland) Act 1984
  • The Environmental Protection Act 1990
  • Civil Contingencies Act 2004
  • The Land Drainage (Scotland) Act 1958
  • Sewerage (Scotland) Act 1968
  • The Water (Scotland) Act 1980
  • Scots law in relation to nuisance and water incidental to property & land

In particular, authorities should also be aware and take account of the need to control non-native invasive species which may cause obstruction to the flow of water.

5.7.1 Roads (Scotland) Act 1984

All local authorities with responsibilities under the Flood Risk Management (Scotland) Act 2009 are also defined as roads authorities under the Roads (Scotland) Act 1984.

There are particular powers under the Roads (Scotland) Act 1984 that are often directly relevant to the assessment of bodies of water and clearance and repair works. These are:

Extracts from the Roads (Scotland) Act 1984

31 Drainage of roads
(1)The roads authority may, for the purpose of draining a public road or proposed public road or of otherwise preventing surface water from flowing onto it –
(a) construct or lay, in it or in land adjoining or lying near to it, such drains as they consider necessary;
(b) erect and maintain barriers in it or in such land as aforesaid to divert surface water into or through any existing drain;
(c) scour, cleanse and keep open all drains in it or in such land as aforesaid;
(d) drain surface water from it into any inland waters (whether natural or artificial) or tidal waters.

78 Power to divert waters when constructing or improving public road etc.
(1) the roads authority may divert, or carry out works in relation to, inland waters (whether natural or artificial) or tidal waters where, in the opinion of the authority, such diversion is, or as the case may be works are, necessary for the construction, improvement or protection of a public road (or proposed public road)

99 Prevention of flow of water etc. onto roads
(1)The owner and the occupier of any land, whether or not that land is such as constitutes a structure over or across a road, shall prevent any flow of water or of filth, dirt or other offensive matter from, or any percolation of water through, the land onto the road.
(2) A person may, with the consent of the roads authority and subject to such reasonable conditions as may be imposed by that authority, at his own expense carry out such works in, or make such excavations under, the road as appear to him to be necessary for the purposes of his complying with subsection (1) above.
(3)Without prejudice to subsections (1) and (6) of this section, where there is onto a road such flow or percolation as is mentioned in subsection (1) above, the roads authority may by notice served on the owner or occupier of the land require him, within 28 days from the date of service of, or within such longer period from that date as may be specified in, the notice, to carry out such works or make such excavations as may be so specified, being works or excavations in their opinion necessary for compliance by him with subsection (1) above.

The roads authority therefore has broad powers that may be appropriate to use to address shared flooding actions, where these coincide with roads. The Roads (Scotland) Act 1984 confers rights of entry and requirements to serve notices.

Importantly, in terms of the prevention of flow of water onto roads, under the Roads (Scotland) Act 1984 there is no requirement for this to have been as a result of an 'action' as is the case for section 59 of the Flood Risk Management (Scotland) Act 2009. Therefore, if through, for example a lack of maintenance water is flowing onto a road, then a notice can be served on the owner or occupier to prevent this. It should be noted that a proper assessment of what can be done to prevent the flow should have been undertaken by the roads authority – it is not merely the case of the owner or occupier preventing the flow of water onto a road if this is not possible and in some cases practicable.

If considering using these powers then advice should be sought from roads and legal services colleagues as appropriate.

Duties under the Act and Roads (Scotland) Act 1984 are often undertaken by the same service area within each local authority. Whatever service delivery approach is being used, it is imperative that the works relating to drainage of roads is coordinated with those under the Act. A section 18 schedule may make clear under which Act or both certain activities are being undertaken.

Dumfries & Galloway Council - Roads (Scotland) Act 1984 - section 99 issues

Dumfries & Galloway Council agreed the implementation of a more formal process that reflects the requirements of the Roads (Scotland) Act 1984 where it relates to landowner-related road drainage matters.

(Reference Planning, Housing and Environment Services Committee of Dumfries & Galloway Council, 12 November 2013: http://egenda.dumgal.gov.uk/aksdumgal/users/public/admin/kab12.pl?cmte=PHE&meet=70&arc=71)

The process details the responsibilities of landowners and the approach to be taken by the council in the enforcement of section 99 notices under the Roads (Scotland) Act 1984.

A copy of Appendix 2 to the committee report, which details the procedure and includes standard letters and notices, is included in Appendix 9.3 of this guidance.

5.7.2 Land Drainage (Scotland) Act 1958

Orders made under the Land Drainage (Scotland) Act 1958 (' LD(S)A58') required the authorised persons to be responsible for maintenance of the authorised works in perpetuity and the cost of such maintenance was recorded as a burden on the land in the titles of the agricultural land concerned.

The Flood Risk Management (Scotland) Act 2009 addresses some issues with respect to the presence of Orders made under the LD(S)A58, specifically with respect to the impacts of constructing a new flood protection scheme and full details can be found in in Local Authority Functions under Part 4 Guidance.

However the Act does not deal specifically with the potential conflict in that authorised persons have responsibility for maintenance of authorised works, but local authorities have duties to undertake works of clearance and repair to artificial bed or banks of a body of water where such works would substantially reduce flood risk. The matter is further complicated by the fact that information on the details of works undertaken in accordance with the LD(S)A58 are poor. Some information is held by Registers of Scotland, but it is extremely limited. Even having identified an agricultural embankment adjacent to a watercourse it may not be clear from paper records that they are one and the same embankment.

Furthermore, since there are no recorded improvements since the early 1980s the likelihood is that many of the landowners, occupiers, farmers, etc. will no longer be involved in the direct management of the land and associated embankments, etc.

There is no simple solution to this situation. In general, reasonable attempts should be made to determine whether the responsibility for repair lies with a landowner in accordance with the Order promoted under the LD(S)A58. If this cannot be achieved, or if the landowner does not undertake necessary works, it will fall upon the local authority to undertake assessment and potentially works of clearance and repair if it can be shown that there would be a substantial reduction in flood risk.

5.7.3 The Water Environment (Controlled Activities) (Scotland) Regulations 2011

If an authorisation under the Water Environment (Controlled Activities) (Scotland) Regulations 2011 (" CAR"), is required to carry out clearance and repair works, then the local authority must obtain that authorisation before carrying out the works.

Most clearance and repair works will require some form of authorisation under CAR, although some activities may be allowed without having to apply for a permit, provided they comply with certain rules. This may even relate to the removal of some sediment but does not include dredging. However, the level of authorisation required under CAR depends not only on the extent of the planned works but also on the sensitivity of the water body to environmental deterioration.

For example, certain activities, such as maintenance of a watercourse in the vicinity of a road bridge, might be authorised in accordance with general binding rules or registration rather than having to apply for a licence.

Reference to the CAR guidance and discussion with local SEPA office is recommended.


Contact

Email: Gordon Robertson, Flooding_Mailbox@gov.scot

Phone: 0300 244 4000 – Central Enquiry Unit

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG