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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
7. Entry, Expenses & Compensation

63 page PDF

1.1MB

7. Entry, Expenses & Compensation

7.1 Powers of entry for assessment, inspection and works of clearance and repair

Section 79(2) creates powers for local authorities to enter land for the purposes of carrying out some of their functions under Part 4 of the Act.

The powers of entry available to local authorities are wide, permissive and focused on the intended use under the Act. Land may be entered for the purposes of determining whether any function conferred by or under that Part is to be exercised. Any land adjacent to it, and rights to survey and examine land are also conferred under section 81(1).

These powers of entry include undertaking assessments in accordance with section 18 and works in accordance with section 59, and to survey and examine land. Works of assessment are therefore considered to include inspections.

79 Powers of entry

(2) Any person authorised by a local authority is entitled to enter—
(b) any land for the purposes of assessing a body of water under section 18,
(h) any land for the purposes of carrying out works under section 59

81 Powers of entry: supplementary

(1) A right to enter any land conferred by section 79 includes a right to—
(a) enter for the same purpose any land adjacent to it, and
(b) survey and examine the land.

The power to enter land includes a power to enter buildings because "land" is defined in the Interpretation Order [2] to include buildings and other structures. It is worth noting that section 79(1) gives similar powers to SEPA to enable them to carry out their responsibilities under the Act.

7.2 Notice of entry

If possible, the local authority should discuss access with landowners, occupiers and other people affected prior to entry. This includes assessments and inspections as well as any repair and clearance work that will be undertaken.

24 hours' notice must be given to the occupant of the land concerned prior to taking access. This extends to 7 days if entry is being taken with a warrant (see below), to a house or with heavy equipment. A right to enter any land may be exercised only at a reasonable time.

The above notices of entry do not apply to emergency works or assessment necessary to reduce the risk of a flood likely to occur imminently, and have serious adverse consequences for human health, the environment, cultural heritage or economic activity. However, the same process should be followed as soon after the event as practicable.

The local authority should specify what the land is going to be used for. When taking access, the local authority should set out how damage will be minimised and what actions will be taken to repair any damage.

This approach may appear to be more formal than other powers of entry, however, they must be followed to comply with the Act.

It is therefore important that a plan for such actions is prepared in advance and that a record of any such discussions is kept, including the decision making process and any actions taken, in order to deal with any future claims for compensation. As with all projects requiring land access on a temporary basis, good pre-entry, construction and post-construction photographs and survey records should be taken and held with copies issued to all affected parties.

If access is repeatedly refused by landowners or occupiers and all attempts to reach agreement fail, a warrant may be required – see Chapter 1 for full extracts from Act.

7.3 Seeking a Warrant

A sheriff or justice of the peace may grant a warrant to any person entitled to exercise a power of entry where there are reasonable grounds in relation to the land concerned. Local authorities should ensure the warrant is served on the right person and that all the actions and decisions made are recorded.

Whilst a warrant may allow the person authorised to use reasonable force it does not allow the use of force against individuals (section 80 (1) and (4)(a)). Local authorities should take care when exercising reasonable force and be clear about who is going to be on site when exercising powers of entry.

To grant a warrant, the sheriff or justice of the peace must be satisfied by evidence on oath that there are reasonable grounds for seeking entry to the land, that permission to enter has been refused or a refusal is reasonably expected, the land is unoccupied, or where the case is urgent (section 80(2) and (3)). Where the case is not urgent and a warrant is sought on the basis that permission to enter has been refused or a refusal is expected then the applicant must first have given notice that they intend to enter the land and the notice period must have expired.

It an offence to prevent or obstruct a person from exercising a power of entry under a warrant, unless the person obstructing or preventing access has a reasonable excuse for doing so (section 80(5)).

In all cases, those entering land are required to be able to produce written evidence that they have been authorised to enter (see Part 4 Guidance for examples).

7.4 Compensation

As stated in Chapter 1, a local authority may be required to compensate a person who has sustained damage as a result of clearance and repair works or the exercise of a right of entry under section 79.

Damage is defined as the depreciation of the value of a person's interest in land or the disturbance of a person's enjoyment of land (section 83(1)). See 'Interest in Land' and 'Land affected' for the extent to which a person's interest in land may be considered.

Compensation may be payable to businesses that are affected by the clearance and repair works (Reference to the Part 4 Guidance).

There are limits on the right to compensation and the Act requires notice of any claim to be given to the local authority within the specified periods.

Any disputes over compensation under section 82 are to be determined by the Lands Tribunal for Scotland.

7.5 Acquisition of land

There may be times when it is appropriate to purchase a particular section of land or property. Section 66 enables local authorities to acquire land which they require to exercise functions under Part 4 by agreement. Local authorities may therefore need to consider where ownership is best placed to be. This may require a whole life examination and consideration of factors such as future maintenance, access needs, asset management strategies and costs.

7.6 Recovery of expenses

As stated in Chapter 1, where works undertaken under section 59 are required to be carried out by a local authority, the Act makes allowance for expenses incurred to be recovered from the owner, or occupier, of the land, only where such works are as a result of the actions of that person.

In assessing whether works of clearance and repair would substantially reduce the risk of flooding, consideration should be given as to whether the need for such work is as a consequence of an 'action' or an 'inaction', as this will potentially have implications for cost recovery.

Critically, it must be recognised that 'in action' is not an 'action'. See example below.

Example - In-action is not an 'action'

An owner who no longer clears vegetation from the banks of a watercourse, which leads to a reduction in flow capacity, and increase in flood risk has not done anything that could be construed as an 'action'. Should the local authority be required to carry out works to clear such vegetation as a result of the landowners 'inaction' then it would be at the authority's expense. Section 67 does not allow recovery of such expenses.

However, if the same owner did cut the vegetation and deposited the cuttings in the watercourse, which was assessed as likely to cause a substantial flood risk and therefore added to the schedule of clearance and repair works, then the local authority if required to carry out the clearance of the cuttings would be allowed to recover expenses from the owner for their 'action'.

7.7 Information about ownership and occupation of land

Information on ownership can be a key consideration in seeking to recover expenses and also for notifying occupiers and those with an interest in land.

As detailed in Chapter 1, a local authority may require land owners or occupiers to state their interest in that land in writing (section 68). Land owners or occupiers may also be required to provide contact details for any other person known to have an interest in that land. Any person failing to comply with the requirements of a local authority under this section, or knowingly or recklessly providing false or misleading information, is guilty of an offence.

It is essential that correct information is available for decision making and this should be recorded. However, the application of the powers conferred by the Act should not preclude the use of local knowledge and good communication with landowners and members of the community.

In all cases that may lead to recovery of expenses, acquisition of land or seeking a warrant of entry, flood officers should seek appropriate legal and financial advice.


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