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Flood Risk Management (Scotland) Act 2009

Type Act of the Scottish Parliament

Publication 2009-06-16

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — General duty, directions and guidance

General duty

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(1) The Scottish Ministers, SEPA and responsible authorities must exercise their flood risk related functions with a view to reducing overall flood risk and, in particular, must exercise their functions under Part 3 so as to secure compliance with the Directive.

(2) In exercising their functions in pursuance of subsection (1), the Scottish Ministers, SEPA and responsible authorities must—

(a) so far as such exercise affects a flood risk management district, act with a view to achieving the objectives set out in the flood risk management plan for that district as approved under section 32,

(b) have regard to the social, environmental and economic impact of such exercise of those functions,

(i) act in the way best calculated to manage flood risk in a sustainable way,

(ii) promote sustainable flood risk management,

(iii) act with a view to raising public awareness of flood risk, and

(iv) act in the way best calculated to contribute to the achievement of sustainable development, and

(d) so far as practicable, adopt an integrated approach by co-operating with each other so as to co-ordinate the exercise of their respective functions.

(3) For the purposes of co-operating with each other under subsection (2)(d), the Scottish Ministers, SEPA and responsible authorities may enter into agreements with each other.

(4) In this Act, “flood risk related functions” means—

(a) in relation to the Scottish Ministers—

(i) their functions under this Part (other than subsections (1) and (2) of this section), Part 2 (responsible authorities), Part 3 (flood risk assessment, maps and plans), Part 4 (flood risk management: local authority functions), and Part 5 (SEPA: other flood risk management functions), and

(ii) their functions under such other enactments as the Scottish Ministers may specify by order,

(b) in relation to SEPA—

(i) its functions under Part 3 (flood risk assessment, maps and plans) and Part 5 (SEPA: other flood risk management functions), and

(ii) its functions under such other enactments as the Scottish Ministers may specify by order,

(i) its functions under Part 3 (flood risk assessment, maps and plans) and Part 4 (flood risk management: local authority functions), and

(ii) such of its functions relevant to flood risk management as are specified in relation to it in an order made by the Scottish Ministers, and

(d) in relation to any other responsible authority—

(i) its functions under Part 3 (flood risk assessment, maps and plans), and

(ii) such of its functions relevant to flood risk management as are specified in relation to it in an order made by the Scottish Ministers (whether or not in an order under section 5(1)(c) designating it as a responsible authority).

Directions and guidance

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(1) The Scottish Ministers may give directions (whether general or specific) and guidance to—

(a) SEPA, in relation to the exercise of its flood risk related functions, and

(b) any responsible authority, in relation to the exercise of its flood risk related functions.

(2) SEPA and the responsible authorities must comply with any such directions and have regard to any such guidance.

(3) Directions under subsection (1) may include provision for any matter to which the directions relate to be determined, in such manner (if any) as the directions may specify, by a person other than the Scottish Ministers.

(4) Before giving a direction under subsection (1), the Scottish Ministers must consult—

(a) the person to whom the direction is to be given, and

(b) such of the following persons as they consider appropriate—

(i) SEPA, and

(ii) responsible authorities.

(5) The Scottish Ministers must give guidance under subsection (1) to SEPA and all responsible authorities on their duties under—

(a) subsection (2)(b) of section 1, and

(b) subsection (2)(c)(i) of that section.

(6) The guidance given in pursuance of subsection (5) must be given not later than 18 months after the provision to which the guidance relates is commenced.

(7) The Scottish Ministers must review and where appropriate update the guidance given in pursuance of subsection (5) not later than 6 years after it was first given or, as the case may be, last reviewed under this subsection.

(8) Before giving guidance in pursuance of subsection (5) or updating the guidance under subsection (7), the Scottish Ministers must consult—

(a) SEPA,

(b) every responsible authority, and

Part 2 — Principal expressions

“Flood” and “flood risk”

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In this Act—

“flood” means the temporary covering by water from any source of land not normally covered by water, but does not include a flood solely from a sewerage system (and related expressions such as “flooding” are to be construed accordingly),

“flood risk” means the combination of the probability of a flood and of the potential adverse consequences, associated with a flood, for human health, the environment, cultural heritage and economic activity,

“flood solely from a sewerage system” means the temporary covering of land by sewage caused solely by a failure in or blockage of a sewerage system which is not connected with any loading on the system by external hydraulic factors (for example by heavier than usual rainfall or higher than usual river levels).

SEPA

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In this Act, “SEPA” means the Scottish Environment Protection Agency.

Responsible authorities

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(1) For the purposes of this Act, responsible authorities are—

(a) local authorities,

(b) Scottish Water, and

(c) such other public bodies and office-holders (or public bodies or office-holders of such descriptions) as the Scottish Ministers may designate by order.

(2) Before making an order under subsection (1)(c), the Scottish Ministers must consult—

(a) SEPA,

(b) every responsible authority,

(d) such other persons as they consider appropriate.

“The Directive”

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In this Act, subject to section 6A, “the Directive” means Directive 2007/60/EC of the European Parliament and of the Council on the assessment and management of flood risks.

Part 3 — Flood risk assessment, maps and plans

Purpose of Part

General purpose of Part 3

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The purpose of this Part is to make provision for or in connection with establishing a framework for the assessment and mapping of flood risks and the planning in relation to the management of such risks, including making provision, and enabling provision to be made, for or in connection with implementing the Directive.

Flood risk management districts

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(1) A flood risk management district for the purposes of this Part is—

(a) an area designated as a river basin district by order under section 4(1) of the 2003 Act, or

(b) such other area as the Scottish Ministers may designate by order, being such area as they consider appropriate and to which they assign one or more coastal areas or river basins.

(2) An order under subsection (1)(b) must identify the flood risk management district by reference to a map prepared for the purposes of the order and laid before the Parliament.

(3) The Scottish Ministers must send SEPA a copy of any order under subsection (1)(b) and any map referred to in the order.

(4) SEPA must, whether a flood risk management district is—

(a) an area designated as a river basin district by order under section 4(1) of the 2003 Act, or

(b) an area designated by order under subsection (1)(b),

make copies of the order concerned and the map to which the order refers available for public inspection.

Flood risk assessment

SEPA to prepare flood risk assessments

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(1) SEPA must prepare a flood risk assessment for each flood risk management district providing an assessment of any flood risk for the district.

(2) A flood risk assessment must be prepared by 22nd December 2011.

(3) A flood risk assessment is to be based on available and readily derivable information (including in particular information on any impact of climate change on the occurrence of floods).

(4) A flood risk assessment must include—

(a) maps at the appropriate scale of the flood risk management district which show—

(i) borders of any river basin, sub-basin and coastal area in the district,

(ii) topography and land use, and

(iii) such other information as the Scottish Ministers may specify by regulations,

(b) where—

(i) SEPA considers there is reliable information that any flood has occurred in the flood risk management district which had significant adverse consequences for human health, the environment, cultural heritage or economic activity there, and

(ii) a similar future flood in the district with significant adverse consequences for such matters there is still probable,

a description of the flood which has occurred (including its extent and conveyance routes and an assessment of the adverse consequences mentioned in sub-paragraph (i) that the flood entailed),

(i) SEPA considers there is reliable information that a significant flood has occurred in the flood risk management district, and

(ii) significant adverse consequences for the district of any similar future flood there might be envisaged,

a description of the flood which has occurred, and

(d) an assessment of the potential adverse consequences of any future flood for human health, the environment, cultural heritage and economic activity in the flood risk management district taking into account as far as possible issues such as—

(i) the topography,

(ii) the position, and the general hydrological and geomorphological characteristics, of any body of surface water,

(iii) natural features and characteristics of any river basin or coastal area in the district,

(iv) the effectiveness of any existing artificial flood protection structure,

(v) the position of any populated area and area of economic activity, and

(vi) long-term developments, including any impact of climate change on the occurrence of floods.

(5) A flood risk assessment, and any map included in it by virtue of subsection (4)(a), may also include such other information as SEPA considers appropriate.

Flood risk assessments: review

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(1) SEPA must—

(a) by 22nd December 2018 or such earlier date as the Scottish Ministers may direct (“the operative date”), review and where appropriate update each flood risk assessment prepared under section 9, and

(b) by the end of the period of 6 years beginning with the operative date, and of each subsequent period of 6 years, review and where appropriate update the latest flood risk assessment updated after review under this section.

(2) Section 9(3) to (5) applies in relation to the review and updating of a flood risk assessment.

Flood risk assessments: regulations

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The Scottish Ministers may by regulations make further provision as to the preparation of a flood risk assessment under section 9, or the review or updating of such an assessment under section 10, including provision as to criteria to be applied and the methods and procedures to be followed in those matters.

Flood risk assessments: availability for public inspection

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(1) SEPA must make available for public inspection copies of the flood risk assessment for the time being applicable to each flood risk management district.

(2) In relation to a Scottish cross border area subsection (1) applies as if the reference to the flood risk assessment includes the preliminary assessment map and preliminary assessment reports prepared by the Environment Agency and the lead local flood authority under regulations 9 and 10 of the Flood Risk Regulations for an adjacent English cross border area.

Identification of potentially vulnerable areas and local plan districts

SEPA to identify potentially vulnerable areas and local plan districts

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(1) SEPA must prepare and submit to the Scottish Ministers a document identifying for each flood risk management district any area in the district for which it considers that significant flood risk—

(a) exists, or

(b) is likely to occur.

(2) The document must be submitted to the Scottish Ministers by such date as they may direct, and after carrying out such consultation as may be required by regulations under section 15.

(3) The document must also identify areas (consisting of one or more river basins, sub-basins or coastal areas) around the areas in the flood risk management district identified under subsection (1) for the purpose of preparing local flood risk management plans (see section 34).

(4) SEPA's identification—

(a) of any area under subsection (1) is to be based on the flood risk assessment prepared by it under section 9 for the district in which the area is situated,

(b) of any area under subsection (3) is to be based on—

(i) that assessment, and

(ii) such other information as SEPA considers appropriate, and

(c) of any area under subsection (1) or (3) is to identify the area by reference to a map at the appropriate scale prepared for the purposes of and included in the document.

(5) After considering the document, the Scottish Ministers may—

(a) approve it (in whole or in part and with or without modifications), or

(b) reject it.

(6) Before determining whether or not to approve the document, the Scottish Ministers may request such further information and carry out such further investigations and consultation as they consider appropriate.

(7) The Scottish Ministers must advise SEPA in writing of the reasons for their determination under subsection (5).

(8) Where the Scottish Ministers reject the document, they must return it to SEPA and direct SEPA to resubmit it by such date as the direction may specify with—

(a) such modifications (if any) as the direction may specify, and

(b) any further modification which SEPA considers appropriate.

(9) An area referred to in subsection (1) and identified in a document approved under this section or section 14 is referred to in this Part as a “potentially vulnerable area”.

(10) An area referred to in subsection (3) and identified in such a document is referred to in this Part and Part 4 as a “local plan district”.

(11) In relation to a Scottish cross border area, this section has effect as if each reference to the Scottish Ministers is a reference to the Scottish Ministers and the Secretary of State acting jointly.

Potentially vulnerable areas and local plan districts: review

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(1) SEPA must, after carrying out such consultation as may be required by regulations under section 15—

(a) by such date as the Scottish Ministers may direct, review and where appropriate update the document approved under section 13, and

(b) by the end of the period of 6 years beginning with that date, and of each subsequent period of 6 years (or, in each case, such lesser period as the Scottish Ministers may direct) review and where appropriate update the latest document approved under this section.

(2) SEPA must submit to the Scottish Ministers each updated document.

(3) Any review by SEPA under subsection (1) is to be based—

(a) on the flood risk assessment for the time being applicable to the flood risk management district concerned, and

(b) insofar as the review is of the identification of any local plan district, on such other information as SEPA considers appropriate.

(4) Section 13(4)(c) and (5) to (8) applies in relation to an updated document submitted to the Scottish Ministers under this section.

(5) In relation to a Scottish cross border area, this section has effect as if each reference to the Scottish Ministers is a reference to the Scottish Ministers and the Secretary of State acting jointly.

Potentially vulnerable areas and local plan districts: regulations

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The Scottish Ministers may by regulations make provision as to—

(a) the form and content of a document submitted to them under section 13 or 14,

(b) consultation by SEPA in relation to its preparation of any such document,

(i) any such document,

(ii) information relating to matters included in it,

(iii) a summary of any consultation carried out by SEPA in relation to the document, and

(iv) a document as approved by the Scottish Ministers under section 13 or 14,

(d) SEPA publicising its making available to the public any of the things referred to in paragraph (c)(i) to (iv),

(e) the process to be followed in connection with preparation, submission, approval or modification of a document under section 13 or 14 or review or updating of a document approved under either of those sections, and

(f) such other matters in relation to any such document (including submission, approval, modification, review or updating) as the Scottish Ministers may consider appropriate.

Assessment of flood risk from sewerage systems

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