Flood and Water Management Act 2010 Explanatory Notes

Flood and Water Management Act 2010

2010 CHAPTER 29

Commentary

Part 1: Flood and Coastal Erosion Risk Management

General

Schedule 2: Amendment of other Acts

Coast Protection Act 1949 (CPA)

154. Paragraphs 1 to 24 concern amendments to the CPA.

155. Under the CPA, the district council of each maritime district is the “coast protection authority” for that area unless a “coast protection board” has been constituted for the area under section 2 of the CPA. In practice no coast protection boards have been created and paragraph 2 repeals section 2 of the CPA removing this option.

156. The effect of paragraphs 3 and 4 of the Schedule is to insert section 2A into, and amend section 4 of the CPA so as to grant the Environment Agency the same powers to do coast protection work that are held by coast protection authorities. In conjunction with the definition of coast protection work inserted by paragraph 24 (see below) the new provisions also widen the scope of works which can be done under the Act by both the Environment Agency and coast protection authorities, to include anything done for the purpose of maintaining or restoring natural processes. This enables coastal erosion risk management works to be undertaken. However, there are additional conditions that apply before the wider power can be used. These are that the Environment Agency or authority must think the work is desirable, having regard to the national flood and coastal risk management strategies under sections 7 and 8, and that, in relation to a coast protection authority, the purpose of the work must be to manage a coastal erosion risk in its area.

157. Paragraphs 5(5) and 5(6) provide for the Environment Agency to approve coast protection works under section 5 of the CPA rather than the Minister. Paragraph 5 also contains consequential amendments needed to ensure that the powers which are being extended to the Environment Agency are accompanied by an extension of the notification and objection provisions and protections. It also ensures that the extra works powers that coast protection authorities are acquiring are similarly accompanied by these protections.

158. Paragraphs 6 to 9 make consequential amendments to sections 6, 8, 9 and 10 of the CPA to extend to the Environment Agency (and coast protection authorities in respect of their wider powers) the powers of coast protection authorities to make works schemes.

159. Paragraphs 10 and 11 make consequential amendments to sections 12 and 13 of the CPA, to extend to the Environment Agency (and coast protection authorities in respect of their wider powers) the general powers of coast protection authorities to maintain and repair works, and to allow them the same cost recovery provisions with the same inbuilt protections.

160. Paragraph 12 makes consequential amendments to section 14 of the CPA to extend to the Environment Agency (and coast protection authorities in respect of their wider powers) the existing powers of coast protection authorities to compulsorily acquire land, and with the same inbuilt protections (such as the requirement for ministerial consent and dispute, appeal and compensation provisions).

161. Paragraph 13 makes consequential amendments to section 19 of the CPA to ensure that the Environment Agency (and coast protection authorities in respect of their wider powers) are subject to the compensation provisions which apply to people affected by the exercise of the powers being acquired.

162. Paragraphs 14 and 15 repeal sections 20 and 21 of the CPA, which provide for funding to coast protection authorities in respect of coast protection work, from exchequer grants and contributions from certain county councils. These sections are no longer needed by virtue of the funding power in section 16 of this Act, which allows the Environment Agency and Welsh Ministers to make grants in respect of coastal erosion risk management expenditure.

163. Paragraphs 16 to 21 make further consequential amendments to sections 23 to 28 of the CPA to apply to the Environment Agency (and coast protection authorities in respect of their wider powers) the provisions made by those sections (such as power of entry provisions).

164. Paragraphs 22 and 23 make consequential amendments to the technical provisions in sections 44 and 45 of the CPA to extend their effect to the Environment Agency (and coast protection authorities in respect of their wider powers).

165. Paragraph 24 inserts a definition of “coast protection work” into section 49 of the CPA. This has the effect of widening the scope of works which can be done under the Act, by both the Environment Agency and coast protection authorities to include anything done for the purpose of maintaining or restoring natural processes.

Land Drainage Act 1991(LDA)

166. Paragraphs 25 to 39 concern amendments to the LDA.

167. Paragraph 26 repeals section 8 of the LDA, which allows the Environment Agency to exercise powers vested in internal drainage boards under sections 21 and 23 of that Act concurrently with the internal drainage board. Paragraph 27 repeals default powers of the Environment Agency under section 9(1) of the LDA insofar as they relate to flooding.

168. Paragraph 28 amends section 11 of the LDA which makes provision for the Environment Agency and internal drainage boards to enter into arrangements for the purposes of carrying out certain works and, in particular, for internal drainage boards to carry out and maintain drainage works on behalf of one another. This amendment provides for internal drainage boards to provide administrative, professional or technical services to one another by agreement. This would allow internal drainage boards to operate as consortia.

169. Paragraph 29 amends the LDA by adding a new section, 14A, after section 14. Section 14A gives lead local flood authorities powers to carry out flood risk management works provided that the authority considers this work to be desirable, having regard to the local flood risk management strategy for the area and it is for the purpose of managing a flood risk from surface run-off or groundwater (subsection (1)).

170. Subsections (2) and (3) of section 14A give internal drainage boards, district councils and lead local flood authorities (where there is no district council) powers to carry out flood risk management works in respect of ordinary watercourses, and the sea in their area where they consider this work to be desirable, having regard to the local flood risk management strategy for the area. In respect of works for the purpose of managing flood risk from the sea, the consent of the Environment Agency is required where those works are to improve existing works, construct or repair new works, maintain or restore natural processes or features, reduce or increase the level of water in a place, or alter or remove works.

171. These powers are wider than the existing powers in section 14 of the LDA and include anything done to: (a) maintain existing works, including cleansing, repairing or otherwise maintaining the efficiency of any existing watercourse or drainage work; (b) operate existing works; (c) improve existing works, including anything done to deepen, widen, straighten or otherwise improve any existing watercourse or remove or alter mill dams, weirs or other obstructions to watercourses, or to raise, widen or otherwise improve any drainage work; (d) construct or repair new works, which may include anything done to make any new watercourse or drainage work, improve a beach, dune or salt-marsh or erect machinery; (e) maintain or restore natural processes; (f) monitor, investigate or survey a location or a natural process; (g) reduce or increase the level of water in a place; (h) alter or remove any works.

172. These powers are subject to the same compensation, compulsory acquisition and powers of entry provisions as apply to the powers in section 14 of the LDA. The powers under section 14A are also subject to existing protections provided by the planning regime. This would be the main mechanism through which third parties might appeal against new works which might impact negatively upon them.

173. Paragraph 30, in repealing section 17 of the LDA, removes the direct supervisory capacity that the Environment Agency exercises over local authorities in the carrying out of their drainage works powers. Instead, the authorities are required to exercise their powers in accordance with the local flood risk management strategy.

174. Paragraph 31 amends section 21 of the LDA (which allows the internal drainage board or Environment Agency to take action to enforce obligations to maintain or repair any watercourse, bridge or other drainage work). The Environment Agency will no longer exercise this power in England or Wales. The internal drainage board (within its district) and otherwise the lead local flood authority for the area in question will exercise this power. The Environment Agency will continue to exercise this power in both England and Wales so far as it relates to main rivers under section 107(2) of the Water Resources Act 1991.

175. Paragraphs 32, 33 and 34 make various amendments to sections 23, 25 and 26 of the LDA.

176. Section 23 of the LDA, prior to this amendment, prohibits the construction of certain kinds of obstructions in ordinary watercourses without the prior consent of the drainage board (currently the Environment Agency or internal drainage board (for works within its district)). The structures which are caught by this section include culverts which are likely to affect the flow of water in the watercourse. The wording of this provision implies that it is possible to construct a culvert which does not affect the flow, and that such a culvert would not require consent. The amendment in paragraph 32(2) changes this to require that any new culvert must have consent since any culvert necessarily affects the flow of a watercourse.

177. Sub-paragraph (3) of paragraph 32 amends section 23 of the 1991 Act to remove the Environment Agency as the consenting authority for watercourses outside of an internal drainage district, and replace it with lead local flood authorities. Internal drainage boards will remain the consenting authority for watercourses within an internal drainage district.

178. Sub-paragraph (3) of paragraph 32 also amends section 23 to require lead local flood authorities and internal drainage boards to consult with the Environment Agency when they are consenting work that they are themselves proposing. This is to minimise the potential for conflict of interest. Lead local flood authorities and internal drainage boards must also have regard to any guidance provided by the Environment Agency on consenting.

179. Sub-paragraph (4) of paragraph 32 amends section 23 to change the procedure by which fees may be determined. Instead of fees being changed by Ministerial order, they will be changed in accordance with a charging scheme that is prescribed by order. Sub-paragraph (6) amends the meaning of the reference to “the drainage board concerned” used in sections 23 and 24 so that the Environment Agency’s role as a drainage board for watercourses outside of an internal drainage district is taken over by lead local flood authorities. Sub-paragraph (5) extends this amended meaning of “the drainage board concerned” to section 25. Sub-paragraph (7) applies the definition of “lead local flood authority” in the Act to the use of the term in LDA.

180. Paragraph 33 amends section 25 of the LDA (powers to require works for maintaining flow of watercourse) to give the powers of the Environment Agency to lead local flood authorities. Internal drainage boards retain their powers. Section 26, which deals with competing jurisdictions, is repealed by paragraph 34.

181. Paragraphs 35 and 36 amend sections 33 and 34 of the LDA. Section 33 provides for the Environment Agency and drainage boards to commute (with Ministerial consent) land drainage obligations not related to main rivers and section 34 makes provision for the financial consequences of commutation. The amendments to section 33 remove the Environment Agency’s power to commute obligations and provide that: (i) where the obligations relate to an area which forms part of an internal drainage district then the drainage board for the district will have the power; (ii) for any other area, a lead local flood authority will have the power. The amendments to section 34 are consequential to reflect the changes in section 33. Paragraph 37 omits subsection (4)(c), relating to sea flooding, from section 59 of the LDA leaving that section to apply in relation to grants for drainage works.

182. Paragraph 38 amends section 66 of the LDA which provides a power to make byelaws. These amendments extend the byelaw making power to the relevant authorities which are empowered to carry out works under section 14 of the LDA, as a result of other amendments made by this Act. The amendments also extend the purposes for which byelaws can be made from securing the efficient working of a drainage system; and regulating the effect on the environment of a drainage system, to: (a) securing the effectiveness of flood risk management works, with the meaning of section 14A of the LDA as inserted by the Act; and (b) securing the effectiveness of works done under section 38 or 39 of the Act.

183. Paragraph 39 introduces a definition of “culvert”, defining it as a covered channel or pipe designed to prevent the obstruction of a watercourse or drainage path by an artificial construction. There is no definition in current legislation.

Water Resources Act 1991 (WRA)

184. Paragraphs 40 to 49 concern amendments to the WRA.

185. Paragraph 41 repeals section 106 of the WRA so that the Environment Agency no longer has to carry out its flood management functions through the Regional Flood Defence Committees. Under section 23 of this Act, those Committees will have an advisory and consenting function instead.

186. Paragraph 42 amends section 110 of the WRA to change the procedure by which fees may be determined. Instead of fees being changed by Ministerial order, they will be changed in accordance with a charging scheme that is prescribed by order.

187. Paragraph 43 amends section 118 of the WRA, which states how revenue raised by the Environment Agency can be spent, to replace the reference to “flood defence functions” with a reference to the broader concept of “flood and coastal erosion risk management functions” which this Act introduces. It also replaces references to “local flood defence district” and “flood defence district” with “flood risk management region” which are the regions created by the Environment Agency, by the exercise of its powers under section 22. It repeals section 118(6), which relates to local flood defence districts which will no longer exist. Paragraph 44 repeals section 133 of the WRA the effect of which is replaced by section 17 of the Act.

188. Paragraphs 45 and 46 amend sections 159 and 160 of the WRA, and allow the pipe laying powers in those sections to be used for flood risk management purposes.

189. Paragraph 47 adds new provisions to the beginning of section 165 of the WRA. The new provisions allow the Environment Agency to carry out flood and coastal erosion risk management works provided that: (a) the Environment Agency thinks that the work is desirable having regard to the national flood and coastal erosion risk management strategy (under sections 7 and 8 of the Act); and (b) that the purpose of the works is to manage a flood risk from the sea, or a main river (although for certain works only the first condition need be satisfied). “Main river” includes a reference to a lake, pond or other area of water which flows into a main river.

190. Flood and coastal erosion risk management works include anything done to: (a) maintain existing works, including cleansing, repairing or otherwise maintaining the efficiency of any existing watercourse or drainage work; (b) operate existing works; (c) improve existing works, including anything done to deepen, widen, straighten or otherwise improve any existing watercourse or remove or alter mill dams, weirs or other obstructions to watercourses, or to raise, widen or otherwise improve any drainage work; (d) construct or repair new works, which may include anything done to make any new watercourse or drainage work, improve a beach, dune or salt-marsh, or erect machinery; (e) maintain or restore natural processes; (f) monitor, investigate or survey a location or a natural process; (g) reduce or increase the level of water in a place; (h) alter or remove any works.

191. These new powers are subject to the same compensation, compulsory acquisition, and powers of entry provisions as apply to the existing powers in section 165. It should be noted that the new powers are also subject to existing protections provided by the planning regime. This would be the main mechanism through which third parties might appeal against new works which might impact negatively upon them.

192. The new powers are wider than the existing powers in section 165 in the same way that the powers inserted by paragraph 26 into the LDA are wider, in that they may be used to: (i) remove works; (ii) maintain, restore, and monitor natural processes; or (iii) reduce or increase the level of water in a place.

193. Sub-paragraphs (3) to (6) make consequential amendments to section 165 of the Water Resources Act.

194. Paragraphs 48 and 50 (see under Water Industry Act 1991 below) respectively amend section 204(2) of the WRA and 206(3) of the Water Industry Act 1991. These sections create a number of exceptions to the general prohibition on disclosure of information gained by companies or individuals under those Acts. These amendments to those sections add the provision of information in response to a request under section 14 to those exceptions from that prohibition.

195. Paragraph 49 amends paragraph 5(1) of Schedule 25 to the WRA to extend the powers of the Environment Agency to make byelaws. Byelaws may be made for the purposes of securing the efficient working of a drainage system and regulating the effect on the environment of a drainage system. This amendment provides in addition for byelaws to be made for the purposes of securing the effectiveness of flood risk management works, within the meaning of section 165 of the WRA, as amended by the Act and securing the effectiveness of works done under section 39 or 40 of the Act.

Water Industry Act 1991

196. See under Water Resources Act 1991 in relation to paragraph 48 of Schedule 2 to the Act.

Environment Act 1995

197. Paragraphs 51 to 53 concern amendments to the Environment Act 1995.

198. Paragraph 52 amends section 6 of the Environment Act 1995 to provide the Environment Agency with general supervision over all flood and coastal erosion risk management matters.

199. Paragraph 53 repeals sections 14 to 19 and Schedules 4 and 5. These provisions are no longer needed in the light of provisions for Regional Flood and Coastal Committees under sections 22 to 26 of this Act.

Local Government Act 2000

200. Paragraph 54, by adding a new section 21F to the Local Government Act 2000, extends the powers of overview and scrutiny committees in England under the Local Government Act 2000. It provides powers to lead local flood authorities to allow for the scrutiny of risk management authorities as to the exercise of their flood and coastal erosion risk management functions.

201. It gives risk management authorities a duty to comply with requests for information, or responses to reports, from the overview and scrutiny committees.

202. It provides for the Secretary of State to make regulations about the duties set out above. This can include provisions about procedures, notices, exemptions, requirements to provide information orally, the nature of information and publication.

203. Risk management authorities must have regard to the reports and recommendations of the overview and scrutiny committees.

204. This provision also provides for the Secretary of State’s existing powers to make regulations, in respect of joint overview and scrutiny committees, to be used in respect of scrutiny under this new provision.