Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Flood Risk Management (Scotland) Act 2009

Type Act of the Scottish Parliament

Publication 2009-06-16

Last updated 2024-01-01

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(c) may, where it considers it appropriate, integrate any such flood hazard map, flood risk map or flood risk management plan with the information mentioned in subsection (2).

(2) The information referred to in subsection (1)(b)(i) and (c) is—

(a) as respects flood risk maps and flood hazard maps, characterisations of river basin districts prepared under Chapter 2 of Part 1 of the 2003 Act, and

(b) as respects flood risk management plans, river basin management plans prepared under that Chapter.

(3) A lead authority responsible for preparing a local flood risk management plan must secure appropriate consistency in the information contained in the plan with information contained in characterisations of river basin districts and river basin management plans prepared under Chapter 2 of Part 1 of the 2003 Act.

Advisory groups

District flood risk advisory groups

49

(1) Each flood risk management district is to have one or more district flood risk advisory groups (“district advisory groups”).

(2) The function of each district advisory group is to advise SEPA on any matter which—

(a) relates to—

(i) the preparation of any of the documents mentioned in subsection (3),

(ii) the review and updating of any such document,

(iii) any assessment (of possible contribution of alteration etc. of natural features and characteristics) under section 20, and

(iv) the review and updating of any such assessment, and

(b) is within the remit of the group.

(3) The documents mentioned in subsection (2)(a)(i) are—

(a) the flood risk assessment for the district,

(b) the document (under section 13) identifying—

(i) potentially vulnerable areas in the district, and

(ii) local plan districts,

(d) the flood risk management plan for the district.

(4) SEPA must, in preparing, reviewing and updating the documents referred to in subsection (3) and in carrying out or reviewing any assessment under section 20, have regard to any advice given by a district advisory group for the district.

(5) The number of district advisory groups, and their remits, membership and procedure are to be such as SEPA may determine.

(6) SEPA may determine the remit of a district advisory group for any flood risk management district by reference to one or more of the following—

(a) a particular geographical area,

(b) any other particular aspect of flood risk management within the district.

(7) In determining the number of district advisory groups for any flood risk management district and their remits and membership, SEPA must seek to ensure appropriate representation of the interests of—

(a) the persons specified or referred to in section 30(5)(a) to (d), and

(b) such other persons as appear to SEPA to have an interest in flood risk management for the district.

(8) SEPA may pay to members of a district advisory group such expenses and allowances as it may determine.

Sub-district flood risk advisory groups

50

(1) For the purpose of setting up sub-district flood risk advisory groups, SEPA must divide each flood risk management district into such geographical areas (“sub-districts”) as it considers appropriate.

(2) Each sub-district is to have a sub-district flood risk advisory group (“sub-district advisory group”).

(3) The function of each sub-district advisory group is to advise—

(a) SEPA, on any matter which relates to—

(i) the preparation of the documents mentioned in subsection (4),

(ii) the review and updating of those documents,

(iii) any assessment (of possible contribution of alteration etc. of natural features and characteristics) under section 20, and

(iv) the review and updating of any such assessment, and

(b) lead authorities for local plan districts, all or part of which form part of the sub-district, on any matter which relates to the preparation of—

(i) a local flood risk management plan,

(ii) a report under section 37 or 38,

so far as those matters are within the remit of the group.

(4) The documents referred to in subsection (3)(a)(i) are—

(a) the flood risk assessment for the flood risk management district of which the sub-district forms part,

(b) the document (under section 13) identifying—

(i) potentially vulnerable areas in the district, and

(ii) local plan districts in the district,

(d) the flood risk management plan for the district.

(5) SEPA must, in preparing, reviewing and updating the documents referred to in subsection (4) and in carrying out or reviewing any assessment under section 20, have regard to any advice given by a sub-district advisory group.

(6) A lead authority must, in preparing a local flood risk management plan or a report under section 37 or 38, have regard to any advice given by a sub-district advisory group.

(7) The remits, membership and procedure of sub-district advisory groups are to be such as SEPA, after consulting local authorities all or part of whose areas form part of the sub-district, may determine.

(8) In determining the remit and membership of a sub-district advisory group, SEPA must seek to ensure appropriate representation of the interests of—

(a) every responsible authority which has functions exercisable in or in relation to the sub-district,

(b) any category 1 responder (other than a responder which is a responsible authority) which has functions exercisable in or in relation to the sub-district,

(d) where any part of the sub-district has been designated as a National Park, the National Park authority for the National Park, and

(e) such other persons as appear to SEPA to have an interest in flood risk management for the sub-district.

(9) SEPA may pay to members of a sub-district advisory group such expenses and allowances as it may determine.

Supplementary

Power to give effect to Community obligations etc.

51

(1) The Scottish Ministers may by regulations provide that the provisions of this Part are to have effect with such modifications as the regulations may specify for the purpose of giving effect to any obligation arising from assimilated law or of exercising any related right.

(2) In this section “related right”, in relation to an obligation, includes any derogation or other right to make more onerous provisions available in respect of that obligation.

Annual report on implementation of Directive

52

(1) The Scottish Ministers must either—

(a) as soon as practicable after the end of each calendar year lay before the Parliament a report summarising the action referred to in subsection (2) taken during the year by—

(i) the Scottish Ministers,

(ii) SEPA, and

(iii) the responsible authorities, or

(b) incorporate into their report under section 26 of the 2003 Act for the calendar year concerned a report summarising such action.

(2) The action is—

(a) action taken in accordance with this Part (including, in particular, action taken for securing compliance with the requirements of the Directive), and

(b) action taken to implement measures identified in a flood risk management plan approved under section 32.

Availability of documents for public inspection

53

(1) Where, under this Part, any order, assessment, map, plan, or report is to be made available for public inspection, it—

(a) must be made available—

(i) free of charge,

(ii) at all reasonable times, and

(b) may be made available by such means, or in such formats, as the person required to make it available considers appropriate for the purpose of encouraging the inspection of it by members of the public.

(2) The person required to make available the document referred to in subsection (1) must publicise the arrangements for making it available unless the document is—

(a) a map prepared under section 17, or

(b) a schedule prepared under section 18(1)(b).

Publicity of matters

54

(1) Where, under this Part, a person (“the publisher”) is required to publicise any matter, the publisher—

(a) must do so by means of a notice published in the appropriate newspapers, and

(b) may further publicise the matter by such electronic or other means as the publisher considers appropriate.

(2) In subsection (1), the appropriate newspapers are—

(a) in relation to a local flood risk management plan, such newspapers circulating in the local plan district, or any part of the district, as the publisher considers appropriate,

(b) in relation to any other matter—

(i) at least one newspaper circulating throughout Scotland, and

(ii) such local newspapers circulating in any part of the flood risk management district to which the matter relates as the publisher considers appropriate.

Interpretation of Part 3

55

(1) In this Part—

“appropriate scale” means such scale as SEPA considers most appropriate,

“body of surface water”, “loch” ... and “watercourse” have the same meanings as in section 28(1) of the 2003 Act,

“English cross border area” has the same meaning as in regulation 5A of the Flood Risk Regulations,

“Flood Risk Regulations” means the Flood Risk Regulations 2009,

“river basin” has the same meaning as in section 28(1) of the 2003 Act except that, in the case of a river basin which is partly in Scotland and partly in England, it means the part of that basin which is in Scotland,

“Scottish cross border area” means a flood risk management district which comprises of, or includes, the Scottish part of a river basin (within the meaning of section 28(1) of the 2003 Act) which is partly in Scotland and partly in England,

“sub-basin” means an area of land from which all surface run-off water flows through a series of streams, rivers, other watercourses and, as the case may be, lochs to a particular point in a watercourse or loch,

“wetland” means an area of ground the ecological, chemical and hydrological characteristics of which are attributable to frequent inundation or saturation by water.

(2) The Scottish Ministers may by order specify boundaries of any coastal area for the purposes of this Part.

Part 4 — Flood risk management: local authority functions

General power

General power to manage flood risk

56

(1) A local authority may do anything which it considers—

(a) will contribute to the implementation of current measures described in any relevant local flood risk management plan,

(b) is necessary to reduce the risk of a flood in its area which is likely to—

(i) occur imminently, and

(ii) have serious adverse consequences for human health, the environment, cultural heritage or economic activity, or

(c) will otherwise manage flood risk in its area without affecting the implementation of the measures mentioned in paragraph (a).

(2) Without prejudice to the generality of subsection (1), a local authority may in particular—

(a) carry out any operations to which a flood protection scheme relates (see section 60),

(b) carry out any other flood protection work,

(c) carry out any temporary works required for the purposes of a flood protection scheme or any other flood protection work,

(d) enter into agreements or arrangements with any other person—

(i) for the carrying out by that person or by the authority of any work which could be done by the authority under this Part, or

(ii) relating to the management by that person of land in a way which can assist in the retention of flood water or slowing the flow of such water,

(e) make contributions towards expenditure incurred by any other person doing something which could be done by the authority under this Part,

(f) (make payments to any other person in compensation for income lost as a result of entering into agreements or arrangements of the type mentioned in paragraph (d)(ii), and

(g) receive from any other person contributions towards expenditure incurred by the authority in exercising any of its functions under this Part.

(3) Work carried out under this section may be carried out within or outwith the local authority's area.

Limits of general power

57

(1) The power under section 56 does not enable a local authority to do anything which it is, by virtue of a limiting provision, unable to do.

(2) In subsection (1), a “limiting provision” is one which—

(a) prohibits or prevents the local authority from doing anything or limits its powers in that respect, and

(b) is expressed in an enactment (whenever passed or made).

(3) The absence from an enactment of provision conferring any power does not of itself make that enactment a limiting provision.

Limits of general power: statutory undertakings

58

(1) A local authority may not exercise the power under section 56 in a way which—

(a) damages any works or property belonging to a statutory undertaker, or

(b) interferes with the carrying on of its statutory undertaking,

unless the undertaker consents.

(2) But consent is not required if it is withheld unreasonably.

(3) It is for the Scottish Ministers to determine any question which arises as to whether consent has been withheld unreasonably, and their decision is final.

Clearance and repair works

Duty to carry out clearance and repair works

59

A local authority must carry out the works described in a schedule prepared by it under section 18 if it considers carrying out the works—

(a) will contribute to the implementation of current measures described in any relevant local flood risk management plan, or

(b) will not affect the implementation of the measures mentioned in paragraph (a).

Flood protection schemes

60

(1) A flood protection scheme is a scheme by a local authority for the management of flood risk within the authority's area.

(2) A proposed flood protection scheme must—

(a) contain a description of the operations the local authority proposes to carry out,

(b) include such maps, plans and specifications as may be specified by regulations by the Scottish Ministers,

(c) state how the operations will contribute to the implementation of current measures described in any relevant local flood risk management plan, and

(d) inasmuch as they will not so contribute, state the reasons why the local authority considers carrying them out will not affect the implementation of those measures.

(3) Schedule 2 makes further provision about the making of flood protection schemes.

(4) The Scottish Ministers may by order amend schedule 2 so as to modify the procedure for making flood protection schemes.

(5) Before making an order under subsection (4), the Scottish Ministers must consult—

(a) every local authority,

(b) such bodies appearing to them to be representative of the interests of local authorities as they consider appropriate,

(d) Scottish Natural Heritage,

(e) Scottish Water,

(f) the National Park authority for each National Park, and

(g) such other persons as they consider appropriate.

Orders under the Land Drainage (Scotland) Act 1958

61

(1) This section applies where an improvement order affects any land on which operations are proposed to be carried out under a flood protection scheme.

(2) The flood protection scheme may include proposals to—

(a) vary the improvement order by—

(i) removing land from the improvement area,

(ii) removing or rendering ineffective all or any part of the drainage or protective works specified in the improvement order, or

(iii) amending, reapportioning or removing any obligations of maintenance imposed on the authorised persons under the improvement order, or

(b) revoke the improvement order.

(3) But the scheme may not include proposals to vary the improvement order so as to impose any new obligations on the authorised persons in respect of operations described in the scheme.

(4) Where the proposed operations will materially alter drainage works or protective works, the scheme must include proposals to vary the improvement order so as to remove the obligation of maintenance in respect of the part of the drainage works or protective works so altered.

(5) On commencement of the flood protection scheme, the improvement order is varied or, as the case may be, revoked to the extent specified in the scheme.

(6) Where an improvement order has been varied or revoked by a flood protection scheme, the local authority must cause a notice of the variation or revocation to be registered in the Land Register of Scotland or recorded in the Register of Sasines (as applicable).

(7) The Scottish Ministers may by order specify the form and content of a notice under subsection (6).

(8) In this section—

“authorised persons” has the meaning given in section 2(2) of the Land Drainage (Scotland) Act 1958 (c. 24),

“drainage works” has the meaning given in section 18(1) of that Act,

“improvement area” has the meaning given in section 1(3) of that Act,

“improvement order” has the meaning given in section 1(1) of that Act,

“protective works” has the meaning given in section 2(1)(d) of that Act.

Registers of flood protection schemes

62

(1) Every local authority must keep a register of flood protection schemes.

(2) A local authority must enter into its register—

(a) details of each relevant scheme including—

(i) a summary of the operations described in the scheme,

(ii) a description (by reference to a map) of the land affected by those operations, and

(iii) a note of the date on which notice of the scheme is first published under paragraph 1(1)(a) of schedule 2,

(b) a note of the following in relation to each such scheme—

(i) any decision made under paragraph 4(1), 5(1), 7(4), or 9(1) of schedule 2,

(ii) the fact that notice has been given to the Scottish Ministers under paragraph 5(5) of that schedule including whether any relevant objector is a local authority or a National Park authority,

(iii) the fact that notice has been given of proposed modifications under paragraph 7(5)(a) or 9(3)(a) of that schedule,

(c) where such a scheme is confirmed with modifications, the information specified in paragraph (a)(i) and (ii) in relation to the modified scheme, and

(d) a note of any suspension of the operation of such a scheme under paragraph 12(6) of schedule 2.

(3) For the purposes of subsection (2)(a), a relevant scheme is a scheme—

(a) proposed by the local authority, or

(b) in relation to which it is notified under paragraph 1(1)(f)(iii) of schedule 2.

(4) A local authority may remove information from its register relating to a scheme if the scheme is rejected under paragraph 4(1)(b), 7(4)(c) or 9(1)(c) of schedule 2.

(5) A local authority must amend its register to reflect any decision of a sheriff under paragraph 12(7) of schedule 2 to quash a scheme recorded in its register in whole or in part.

(6) Where a local authority enters information in its register about a scheme in relation to which it notified another local authority under paragraph 1(1)(f)(iii) of schedule 2, it must notify that authority of the information entered.

(7) A local authority must make available its register for public inspection and may charge a reasonable fee for doing so.

Registers of flood protection schemes: information about schemes under 1961 Act

63

A local authority must enter into its register details of every flood prevention scheme made by it under the 1961 Act including—

(a) a summary of the operations to which the scheme relates, and

(b) a description (by reference to a map) of the land affected by those operations.

Registers of flood protection schemes: regulations etc.

64

(1) The Scottish Ministers may by regulations make further provision about the keeping of registers under section 62(1) including, in particular, provision as to—

(a) the content of a register,

(b) the time by which information must be entered into a register,

(d) the time by which notice must be given under section 62(6).

(2) Regulations under subsection (1) may also—

(a) make further provision about the availability of registers under section 62(7) including, in particular, provision as to the form and manner in which registers are to be made available,

(b) make provision—

(i) requiring local authorities to make available their registers to a person specified in the regulations,

(ii) as to the form and manner in which the registers are made available to the person,

(iii) requiring local authorities to inform the person of any change to their registers as soon as reasonably practicable or within a period specified in the regulations, and

(iv) requiring the person to make available information from local authorities' registers for public inspection.

(3) References in this section and sections 62 and 63 to a local authority's register are references to the register of flood protection schemes kept by the authority.

Deemed planning permission

Deemed planning permission for scheme work

65

In section 57 of the Town and Country Planning (Scotland) Act 1997 (c. 8) (deemed planning permission), after subsection (2A) insert—

(2B) On— (a) confirming a flood protection scheme under paragraph 7(4) of schedule 2 to the Flood Risk Management (Scotland) Act 2009 (asp 6) in respect of any operation which would constitute development, or (b) a local authority confirming such a scheme under paragraph 4(1) or 9(1) of that schedule, the Scottish Ministers must direct that planning permission for that development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.

Acquisition of land

66

(1) A local authority may—

(a) by agreement, acquire land which it requires for the exercise of its functions under this Part,

(b) with the authorisation of the Scottish Ministers, compulsorily acquire land (other than Crown land within the meaning of section 91(7)(a)) which it requires for the purpose of carrying out scheme operations.

(2) The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42) applies in relation to an acquisition under subsection (1)(b) as if that provision were contained in an Act of Parliament in force immediately before the commencement of that Act.

General

Recovery of expenses

67

A local authority may recover any expense it incurs in carrying out—

(a) any repairs or re-instatement to flood protection work done—

(i) under section 56, or

(ii) in accordance with a flood prevention scheme confirmed under section 4 of the 1961 Act, or

(b) any work required under section 59,

from the owner or, as the case may be, occupier of the land on which the work was carried out if such expense is as a result of the actions of that person.

Information about ownership etc. of land

68

(1) For the purposes of enabling it to exercise any of its functions under this Part, a local authority may require any person it believes to be the owner or occupier of any land to state in writing—

(a) the nature of the person's interest in that land, and

(b) the name and address of any other person known to the person as having a interest in that land.

(2) Any person who—

(a) fails to comply with a requirement of a local authority under this section, or

(b) in answer to any such requirement, intentionally or recklessly makes any statement which is false or misleading in a material particular,

commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Damage to certain flood protection work

69

(1) Any person who intentionally or recklessly damages any—

(a) barrier, embankment or other work for defence against flooding constructed or otherwise created by a local authority—

(i) in exercise of any of its functions under this Part, or

(ii) in accordance with a flood prevention scheme confirmed under section 4 of the 1961 Act, or

(b) apparatus ancillary to such work,

commits an offence.

(2) For the avoidance of doubt, a person carrying out flood protection work under this Part does not commit an offence under subsection (1).

(3) It is a defence to a charge in proceedings for an offence under subsection (1) that the person did not know and had no reasonable means of knowing that the works or apparatus were for defence against flooding.

(4) A person who commits an offence under subsection (1) is liable on summary conviction—

(a) in the JP court, to imprisonment for a term not exceeding 60 days, or to a fine not exceeding level 3 on the standard scale, or to both,

(b) in the sheriff court—

(i) for a first such offence, to imprisonment for a term not exceeding 3 months, or to a fine not exceeding the prescribed sum (within the meaning of section 225(8) of the Criminal Procedure (Scotland) Act 1995 (c. 46)), or to both, and

(ii) for any subsequent such offence, to imprisonment for a term not exceeding 6 months, or to the fine mentioned in sub-paragraph (i) above, or to both.

Repeal of Flood Prevention (Scotland) Act 1961

70

The 1961 Act is repealed.

Interpretation of Part 4

71

In this Part—

“relevant local flood risk management plan” means, in relation to a local authority, a local flood risk management plan for a local plan district that includes all or part of the local authority's area,

“scheme documents” means, in relation to a proposed flood protection scheme, the documents containing the material specified in, or by regulations made under, section 60(2),

“statutory undertaker” means—the holder of a licence under section 6(1) of the Electricity Act 1989 (c. 29),a gas transporter within the meaning of Part 1 of the Gas Act 1986 (c. 44),the Civil Aviation Authority,a holder of a licence under Chapter 1 of the Transport Act 2000 (c. 38),the operator of an electronic communications code network within the meaning of paragraph 1(1) of Schedule 17 to the Communications Act 2003 (c. 21), andany other person who is a statutory undertaker within the meaning of section 214(1) of the Town and Country Planning (Scotland) Act 1997 (c. 8),

“statutory undertaking”—means, in relation to a person mentioned in paragraphs (a) to (e) in the definition of “statutory undertaker”, the person's undertaking,means, in relation to Scottish Water, its core functions within the meaning of section 70(2) of the Water Industry (Scotland) Act 2002 (asp 3),otherwise has the meaning given in the Town and Country Planning (Scotland) Act 1997.

Part 5 — SEPA: other flood risk management functions

Advice to planning authorities and others as to flood risk

72

(1) SEPA must, when requested by a planning authority, give the authority advice as to flood risk in the authority's district.

(2) SEPA must, when requested by a National Park authority which, though not a planning authority, is (by virtue of the order designating the National Park for which the authority is established) to be treated as the planning authority for the Park for any purpose, give the authority advice in relation to flood risk in the Park.

(3) Advice under subsection (1) or (2) is to be based on such information as respects such flood risk as SEPA possesses, taking into account—

(a) the flood risk assessment, any flood hazard map and flood risk map, the flood risk management plan and any local flood risk management plan for the time being applicable to the authority's district, and

(b) information provided to it by any planning authority or National Park authority which is not a planning authority.

(4) In this section—

(a) “planning authority” and a planning authority's “district” (except where paragraph (b) provides otherwise) have the meanings given in section 1(1) of the Town and Country Planning (Scotland) Act 1997 (c. 8),

(b) where—

(i) all or part of a planning authority's district is designated as a National Park, and

(ii) the designation order makes provision for the National Park authority to be the planning authority for the Park for the purposes of the planning Acts,

“planning authority” in relation to the National Park means the National Park authority and a planning authority's “district” means the National Park for which the National Park authority is established, and

Other assessment and maps of flood risk

73

(1) SEPA may—

(a) (in addition to the flood risk assessment it is required to prepare under section 9 and review under section 10) carry out such other assessment of flood risk as it considers appropriate, and

(b) (in addition to the flood hazard maps and flood risk maps it is required to prepare under section 21 and review under section 24) prepare such other maps in relation to flood risk as it considers appropriate.

(2) In the exercise of its power under subsection (1), SEPA must take into account the flood risk assessment, any flood hazard map and flood risk map and the flood risk management plan for the time being applicable to the area being assessed.

(3) SEPA may, where it considers it appropriate, integrate any map prepared by it under subsection (1)(b) with any such flood hazard map or flood risk map.

Flood warning

74

(1) SEPA must, where it considers that a flood is occurring or likely to occur in the near future, make available warnings in relation to the flood.

(2) Any warning under subsection (1)—

(a) of a flood which SEPA considers is occurring must be made available as soon as practicable after SEPA considers that is the case,

(b) of a flood which SEPA considers is likely to occur in the near future must be made available as soon as SEPA considers appropriate,

(d) must be made publicly available by SEPA by such means as it considers appropriate.

Assessment of whether flood warning system should be provided or altered

75

(1) SEPA may, and must where the Scottish Ministers direct, assess whether in its opinion—

(a) provision and operation by it of a flood warning system, or alteration of any flood warning system provided and operated by it, would assist in providing earlier or more accurate flood warning as respects an area, and

(b) the earlier or more accurate flood warning so provided would be likely to reduce the potential adverse consequences of flooding of the area for human health, the environment, cultural heritage and economic activity there.

(2) Any assessment under subsection (1) is to be based on such information as SEPA possesses.

(3) In carrying out any such assessment SEPA must consult in accordance with section 77(1).

(4) In this section and section 76, “flood warning system” means a system by which, for the purpose of detecting, forecasting or providing warning of any flood which is occurring or likely to occur in the near future, information as respects any of the following matters is obtained and transmitted—

(a) rainfall,

(b) the level or flow of any surface water (within the meaning of section 3(3) of the 2003 Act),

Provision, alteration etc. of flood warning system

76

(1) SEPA may—

(a) provide and operate any flood warning system,

(b) alter any flood warning system provided and operated by it,

(d) maintain any such apparatus.

(2) Before—

(a) providing a flood warning system in pursuance of paragraph (a) of subsection (1),

(b) for that purpose doing any of the things referred to in paragraph (c) of that subsection, or

SEPA must consult in accordance with section 77(2).

(3) Where SEPA considers—

(a) the alteration of any flood warning system in pursuance of paragraph (b) of subsection (1), or

(b) for that purpose doing any of the things referred to in paragraph (c) of that subsection (“any related thing”),

would be material, it must consult in accordance with section 77(2) before carrying out the alteration of the system or for that purpose any related thing.

Consultation required by sections 75 and 76

77

(1) The consultation required by section 75 is consultation with—

(a) every local authority whose area includes any part of the area which is the subject of the assessment, and

(b) every category 1 responder (other than a local authority) which has functions exercisable in or in relation to the area which is the subject of the assessment.

(2) The consultation required by section 76 is consultation with—

(a) every local authority in whose area the power is to be exercised, and

(b) any category 1 responder (other than a local authority) which has functions exercisable in or in relation to the area in which the power is to be exercised.

Power to obtain information about land

SEPA’s power to obtain information about land

78

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Part 6 — Powers of entry and compensation

Powers of entry

79

(1) Any person authorised by SEPA is entitled to enter any land for the purposes of carrying out SEPA's functions under—

(a) section 9 (preparation of flood risk assessments),

(b) section 10 (review and updating of flood risk assessments),

(d) section 14 (review of potentially vulnerable areas and local plan districts),

(e) section 19 (preparation of maps of artificial structures and natural features),

(f) section 20 (assessment of possible contribution of alteration etc. of natural features and characteristics),

(g) section 21 (preparation of flood hazard maps and flood risk maps),

(h) section 24 (review of flood hazard maps and flood risk maps),

(i) section 27 (preparation of flood risk management plans),

(j) section 33 (review of flood risk management plans),

(k) section 73 (other assessment and maps of flood risk), and

(l) section 76 (provision, alteration etc. of flood warning systems).

(2) Any person authorised by a local authority is entitled to enter—

(a) any land for the purposes of preparing, reviewing or updating a map under section 17,

(b) any land for the purposes of assessing a body of water under section 18,

(d) any land for the purposes of preparing a report under section 37 or 38,

(e) any land on which scheme operations are to be carried out, for the purposes of carrying out the operations or of executing any temporary works in relation to them,

(f) any land for the purpose of carrying out flood protection work on the ground mentioned in section 56(1)(b),

(g) any land for the purposes of maintaining flood protection work carried out—

(i) under section 56, or

(ii) in accordance with a flood prevention scheme confirmed under section 4 of the 1961 Act,

(h) any land for the purposes of carrying out works under section 59, and

(i) any land for the purposes of determining whether, and if so in what manner, any function conferred by or under Part 4 is to be exercised.

(3) In subsection (2), paragraphs (c) and (d) apply only where the local authority is a lead authority within the meaning of section 34.

Warrants authorising entry

80

(1) A sheriff or justice of the peace may by warrant authorise any person entitled to exercise a right conferred by section 79 to do so, if necessary using reasonable force, in accordance with the warrant.

(2) A warrant may be granted under subsection (1) only if the sheriff or justice is satisfied, by evidence on oath—

(a) that there are reasonable grounds for the exercise of the right in relation to the land concerned, and

(b) that—

(i) the conditions in subsection (3) are satisfied,

(ii) the land is unoccupied, or

(iii) the case is one of urgency.

(3) The conditions mentioned in subsection (2)(b)(i) are—

(a) the person applying for the warrant has given notice under section 81(3) of the person's intention to exercise the right,

(b) the notice period has expired,

(i) permission to exercise the right in relation to the land has been refused, or

(ii) such a refusal is reasonably expected.

(4) A warrant granted under this section—

(a) does not entitle a person to use force against an individual, and

(b) continues in force until the purpose for which the warrant was issued has been fulfilled or, if earlier, the expiry of such period as the warrant may specify.

(5) Any person who, without reasonable excuse, prevents or obstructs any other person from doing anything which is authorised by a warrant granted under this section commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Powers of entry: supplementary

81

(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.

(2) Any person who enters any land in exercise of a right conferred by section 79 is entitled, subject in the case of a right exercisable in accordance with a warrant to the terms of the warrant, to—

(a) take on to the land such other persons and such materials and equipment (including vehicles) as may be reasonably required for the purposes of assisting the person, and

(b) do anything else which is reasonably required in order to fulfil the purpose for which entry is taken.

(3) Before any such person exercises any such right, the occupant of the land concerned must be given—

(a) where—

(i) the person exercising any such right intends to take heavy equipment onto the land concerned or entry is sought to a house, and

(ii) the right being exercised is not being exercised in accordance with a warrant,

at least 7 days' notice,

(b) in any other case, at least 24 hours' notice.

(4) A right to enter any land conferred by section 79 may be exercised only at a reasonable time.

(5) Subsections (3) and (4) do not apply to the exercise of—

(a) a right under section 79(2)(f), or

(b) if the situation is urgent, a right under section 79(1)(l).

(6) A person authorised to exercise any right conferred by section 79 must, if required to do so, produce written evidence of that authorisation.

(7) In subsection (3)(a)(i)—

“heavy equipment” does not include vehicles designed soley or mainly for the carriage of passengers,

“house” has the meaning given in section 194(1) of the Housing (Scotland) Act 2006 (asp 1).

(8) In this section and section 82, references to a right to enter land conferred by section 79 include references to that right exercised in accordance with a warrant granted under section 80.

Compensation

82

(1) SEPA must compensate any person who has sustained damage in consequence of—

(a) any exercise of the power in section 76(1)(c) or (d), or

(b) the exercise of a right of entry conferred by section 79(1) (including the ancillary rights mentioned in section 81(1) and (2)).

(2) A local authority must compensate any person who has sustained damage in consequence of—

(a) scheme operations carried out by or on behalf of the local authority,

(b) the subsequent maintenance of any such operations by or on behalf of the local authority,

(d) the carrying out of works under section 59,

(e) the variation or revocation of an improvement order under section 61, or

(f) the exercise of a right of entry conferred by section 79(2) (including the ancillary rights mentioned in section 81(1) and (2)).

Compensation: supplementary

83

(1) In section 82, a person sustains damage if—

(a) the value of the person's interest in land has been depreciated, or

(b) the person has been disturbed in the person's enjoyment of land.

(2) SEPA or, as the case may be, a local authority must pay compensation under section 82 to a person only if—

(a) the damage is not attributable to an act or omission of the person,

(b) the act or omission causing the damage would have been actionable at the person's instance if it had been done or omitted otherwise than in exercise of statutory powers,

(c) the person gives notice to SEPA or, as the case may be, the local authority of the person's claim stating the grounds of the claim and the amount claimed, and

(d) the notice is given no later than the earlier of—

(i) 2 years after the depreciation first becomes apparent or, as the case may be, the first occurrence of the disturbance, and

(ii) 10 years from the completion of the scheme operations, maintenance, exercise of a right of entry or, as the case may be, exercise of another function mentioned in section 82.

(3) Subsection (2)(b) does not apply where the damage has been sustained in consequence of circumstances falling within section 82(2)(e).

(4) Any question of disputed compensation under section 82 is to be determined by the Lands Tribunal for Scotland.

Part 7 — Reservoirs

SEPA to be enforcement authority under the Reservoirs Act 1975

84

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transitional arrangements

85

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Service of documents

86

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enforcement powers and incident reporting

Extension of enforcement authority’s reserve powers

87

The amendments to the 1975 Act made by section 75 of the Water Act 2003 (c. 37) (which enable enforcement authorities to serve and enforce notices requiring undertakers to take measures in the interests of safety) extend to Scotland.

Incident reporting

88

After section 12 of the 1975 Act, insert—

(12ZA) (1) The Scottish Ministers may by regulations made by statutory instrument make provision for the reporting to the enforcement authority of incidents occurring at reservoirs in Scotland which meet criteria specified in, or otherwise determined in accordance with, the regulations. (2) The regulations may, in particular— (a) provide that the enforcement authority or another person— (i) may specify the criteria, and (ii) is to determine whether a reservoir meets the criteria, (b) define what constitutes an incident by reference to circumstances which adversely affect the safety of a reservoir, (c) provide for a supervising engineer or other person to determine whether an incident has occurred, (d) require, in relation to a reservoir, the undertakers or other specified person to report incidents occurring at that reservoir, (e) require undertakers, supervising engineers and any other person of a specified description to have regard to guidance issued by the enforcement authority or the Scottish Ministers, (f) make provision for the publishing of reports, (g) confer powers of entry on the enforcement authority in connection with its functions under the regulations, (h) create offences, (i) provide that any offence created is triable— (i) only summarily, or (ii) either summarily or on indictment, (j) provide for any offence created which is triable only summarily to be punishable on conviction by a fine not exceeding level 5 on the standard scale, (k) provide for any offence created which is triable either summarily or on indictment to be punishable— (i) on summary conviction, by a fine not exceeding the statutory maximum, (ii) on conviction on indictment, by a fine, (l) make provision in connection with ensuring remedial action is taken following an incident report including provision amending this Act (other than this section) or applying this Act with modifications. (3) Before making regulations under subsection (1), the Scottish Ministers must consult— (a) SEPA, (b) undertakers of reservoirs to which they consider the regulations will apply, (c) the Institution of Civil Engineers, and (d) any other person as they consider appropriate. (4) The power to make regulations under subsection (1) may be exercised so as to make different provision for different purposes. (5) A statutory instrument made under subsection (1) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

Flood plans

89

After section 12B of the 1975 Act, insert—

(12C) (1) The Scottish Ministers may by regulations made by statutory instrument provide that a flood plan is to be prepared for each reservoir in Scotland which meets criteria specified in, or otherwise determined in accordance with, the regulations. (2) A “flood plan” is a plan setting out the action to be taken by the undertaker of the reservoir to which the plan relates in order to control or mitigate the effects of flooding likely to result from any escape of water from the reservoir. (3) The regulations may, in particular— (a) provide that the enforcement authority or another person— (i) may specify the criteria, and (ii) is to determine whether a reservoir meets the criteria, (b) specify what is to be included in a flood plan and may, in particular, provide that a plan must include a map, (c) specify the form in which a flood plan is to be prepared, (d) provide that it is for the undertaker of a reservoir or other person to prepare a flood plan in relation to the reservoir, (e) require the person preparing a flood plan to have regard to guidance issued by the enforcement authority or the Scottish Ministers, (f) require the flood plan to be produced or submitted to the enforcement authority by such time as— (i) the regulations specify, or (ii) the authority or Scottish Ministers may direct, (g) make provision about the approval of flood plans, (h) make provision for the review and updating of flood plans, (i) provide for a register of flood plans to be established and maintained, (j) make provision for the publication, or distribution of copies, of— (i) a list of reservoirs in relation to which a flood plan must be prepared by virtue of the regulations, (ii) flood plans, and (iii) reports, (k) make provision in connection with the testing of flood plans, (l) require the undertaker of a reservoir to take action set out in the flood plan relating to the reservoir in the event of an emergency, (m) provide that the enforcement authority may, in circumstances specified in the regulations, do anything that another person is required to do under the regulations and may recover the costs of doing so from that person, (n) confer powers of entry on the enforcement authority in connection with its functions under the regulations, (o) make provision in connection with paragraphs (m) and (n) amending this Act (other than this section) or applying this Act with modifications, (p) create offences, (q) provide that any offence created is triable— (i) only summarily, or (ii) either summarily or on indictment, (r) provide for any offence created which is triable only summarily to be punishable on conviction by a fine not exceeding level 5 on the standard scale, (s) provide for any offence created which is triable either summarily or on indictment to be punishable— (i) on summary conviction, by a fine not exceeding the statutory maximum, (ii) on conviction on indictment, by a fine. (4) Before making regulations under subsection (1), the Scottish Ministers must consult— (a) SEPA, (b) undertakers of reservoirs for which they consider a flood plan will require to be prepared under the regulations, (c) the Institution of Civil Engineers, and (d) such other persons as they consider appropriate. (5) The power to make regulations under subsection (1) may be exercised so as to make different provision for different purposes. (6) A statutory instrument made under subsection (1) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

Crown application

Reservoirs Act 1975: Crown application

90

After section 27A of the 1975 Act, insert—

(27B) (1) This Act binds the Crown. (2) No contravention by the Crown of a provision made by or under this Act makes the Crown criminally liable. (3) But the Court of Session may, on the application of SEPA, declare unlawful any act or omission of the Crown which constitutes such a contravention. (4) Despite subsection (2), the provisions made by and under this Act apply to persons in the public service of the Crown as they apply to other persons. (5) The power conferred by section 17 is exercisable in relation to Crown land only with the consent of the appropriate authority. (6) In subsection (5)— (a) “Crown land” means land, an interest in which— (i) belongs to Her Majesty in right of the Crown or in right of Her private estates, (ii) belongs to an office-holder in the Scottish Administration or to a government department, or (iii) is held in trust for Her Majesty for the purposes of the Scottish Administration or a government department, (b) “appropriate authority”, in relation to any land— (i) in the case of land belonging to Her Majesty in right of the Crown and forming part of the Crown Estate, means the Crown Estate Commissioners, (ii) in the case of any other land belonging to Her Majesty in right of the Crown, means the office-holder in the Scottish Administration or, as the case may be, government department having the management of the land, (iii) in the case of land belonging to Her Majesty in right of Her private estates, means a person appointed by Her Majesty in writing under the Royal Sign Manual or, if no such appointment is made, the Scottish Ministers, (iv) in the case of land belonging to an office-holder in the Scottish Administration or to a government department or held in trust for Her Majesty for the purposes of the Scottish Administration or a government department, means that office-holder or government department. (7) In subsection (6), the references in paragraph (a)(i) and (b)(iii) to Her Majesty's private estates are to be construed in accordance with section 1 of the Crown Private Estates Act 1862 (c. 37). (8) It is for the Scottish Ministers to determine any question which arises as to who is the appropriate authority in relation to any land, and their decision is final.

Part 8 — General

Crown application

91

(1) This Act binds the Crown.

(2) The modifications made by schedule 3 bind the Crown to the extent that the enactments modified bind the Crown.

(3) No contravention by the Crown of any provision made by or under this Act makes the Crown criminally liable.

(4) But the Court of Session may, on the application of any public body or office-holder having responsibility for enforcing that provision, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(5) Despite subsection (3), any provision made by or under this Act applies to persons in the public service of the Crown as it applies to other persons.

(6) The powers conferred by section 79 (whether those specified in that section or the ancillary powers mentioned in section 81(1) and (2)) are exercisable in relation to Crown land only with the consent of the appropriate authority.

(7) In subsection (6)—

(a) “Crown land” means land, an interest in which—

(i) belongs to Her Majesty in right of the Crown or in right of Her private estates,

(ii) belongs to an office-holder in the Scottish Administration or to a government department, or

(iii) is held in trust for Her Majesty for the purposes of the Scottish Administration or a government department,

(b) “appropriate authority”, in relation to any land—

(i) in the case of land belonging to Her Majesty in right of the Crown and forming part of the Crown Estate, means the Crown Estate Commissioners,

(ii) in the case of any other land belonging to Her Majesty in right of the Crown, means the office-holder in the Scottish Administration or, as the case may be, government department having the management of the land or the relevant person,

(iii) in the case of land belonging to Her Majesty in right of Her private estates, means a person appointed by Her Majesty in writing under the Royal Sign Manual or, if no such appointment is made, the Scottish Ministers,

(iv) in the case of land belonging to an office-holder in the Scottish Administration or to a government department or held in trust for Her Majesty for the purposes of the Scottish Administration or a government department, means that office-holder or government department.

(7A) In subsection (7), “relevant person”, in relation to any land to which section 90B(5) of the Scotland Act 1998 applies, means the person who manages that land.

(8) In subsection (7), the references in paragraph (a)(i) and (b)(iii) to Her Majesty's private estates are to be construed in accordance with section 1 of the Crown Private Estates Act 1862 (c. 37).

(9) It is for the Scottish Ministers to determine any question which arises as to who is the appropriate authority in relation to any land, and their decision is final.

Offences by bodies corporate etc.

92

(1) Where—

(a) an offence under this Act has been committed by—

(i) a body corporate,

(ii) a Scottish partnership, or

(iii) an unincorporated association other than a Scottish partnership, and

(b) it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of—

(i) a relevant individual, or

(ii) an individual purporting to act in the capacity of a relevant individual,

that individual (as well as the body corporate, partnership or, as the case may be, unincorporated association) commits the offence and is liable to be proceeded against and punished accordingly.

(2) In subsection (1), “relevant individual” means—

(a) in relation to a body corporate—

(i) a director, manager, secretary or other similar officer of the body,

(ii) where the affairs of the body are managed by its members, a member,

(b) in relation to a Scottish partnership, a partner, and

(c) in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association.

Ancillary provision

93

(1) The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes, or in consequence, of, or for giving full effect to, this Act or any provision of it.

(2) An order under this section may modify any enactment, instrument or document.

Orders and regulations

94

(1) Any power of the Scottish Ministers to make orders or regulations under this Act—

(a) must be exercised by statutory instrument,

(b) may be exercised so as to make different provision for different purposes (including different areas), and

(c) includes power to make such incidental, supplemental, consequential, transitional, transitory or saving provision as the Scottish Ministers consider appropriate.

(2) A statutory instrument containing an order or regulations made under this Act (except an order made under section 97(1)) is, subject to subsection (3), subject to annulment in pursuance of a resolution of the Parliament.

(3) A statutory instrument containing—

(a) regulations under section 51(1),

(b) an order under section 60(4),

is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.

Interpretation: general

95

(1) In this Act—

“the 1961 Act” means the Flood Prevention (Scotland) Act 1961 (c. 41),

“the 2003 Act” means the Water Environment and Water Services (Scotland) Act 2003 (asp 3),

“category 1 responder” means a person or body listed in Part 2 of Schedule 1 to the Civil Contingencies Act 2004 (c. 36),

“flood protection work” means any operation on land for the purpose of protecting any land from flooding including—any work of construction, alteration, restoration, enhancement, improvement, repair, maintenance, demolition or removal,any work that involves the alteration (including enhancement) or restoration of natural features and characteristics of any river basin or coastal area,the sowing or planting of vegetation or forestry,any work ancillary to an operation specified in paragraphs (a) to (c),

“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39), and “area” in relation to such an authority is to be construed accordingly,

“scheme operation” means, in relation to a flood protection scheme, an operation described in that scheme in pursuance of section 60(2)(a).

(2) In this Act, any reference to a Directive of the European Parliament and of the Council or, as the case may be, a Council Directive includes a reference to the Directive as it had effect immediately before IP completion day.

(3) The words and other expressions listed in schedule 4 are defined or otherwise explained for the purposes of this Act by the provisions indicated in that schedule.

Minor and consequential modifications

96

Schedule 3 makes—

(a) minor modifications, and

(b) modifications consequential on the provisions of this Act.

Commencement and short title

97

(1) The provisions of this Act, except this section and sections 3 to 6, 55, 71, 94 and 95, come into force on such day as the Scottish Ministers may by order appoint.

(2) This Act may be cited as the Flood Risk Management (Scotland) Act 2009.

SCHEDULE 1

Part 1 — Matters to be included in every plan

1

A description of—

(a) the objectives set by SEPA for the management of flood risks for the potentially vulnerable areas,

(b) the measures identified for achieving those objectives, and

(c) the priority to be given to implementing each measure including an indication of whether the measure is to be implemented—

(i) before the plan is next reviewed under section 33,

(ii) in the 6 years following that review, or

(iii) after the end of the period mentioned in sub-paragraph (ii).

2

The conclusions of the flood risk assessment as required by section 9 in the form of a map of the flood risk management district delineating the potentially vulnerable areas which are the subject of the flood risk management plan.

3

Flood hazard maps and flood risk maps prepared under section 21 and the conclusions that can be drawn from those maps.

4

A summary of flood-related measures taken under—

(a) any assimilated law which implemented Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment, as last amended by Directive 2014/52/EU of the European Parliament and of the Council

(b) any assimilated law which implemented Directive 2012/18/EU of the European Parliament and of the Council on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC,

(c) any assimilated law which implemented Directive 2001/42/EC of the European Parliament and the Council on the assessment of the effects of certain plans and programmes on the environment,

(d) any other assimilated law which SEPA considers relevant to flood risk management, and

(e) the 2003 Act.

5

A description of—

(a) in relation to each measure included in the plan under paragraph 1(b), the reasons for identifying the measure, and

(b) in relation to any alteration (including enhancement) or restoration of a natural feature or characteristic in the flood risk management district which—

(i) is identified in an assessment under section 20,

(ii) could contribute to the management of flood risk, and

(iii) is not to be carried out by a measure included in the plan under paragraph 1(b),

the reasons why no such measure has been identified.

6

A description of—

(a) how the priority given to implementing each measure under paragraph 1(c) was determined, and

(b) the way in which progress in implementing the plan will be monitored.

7

In relation to measures to be implemented before the plan is next reviewed under section 33, an estimate of the cost of implementing the measures.

8

A summary of—

(a) the steps taken under subsections (2) to (5) of section 30 in relation to the plan,

(b) any other consultation measures taken in connection with the preparation of the plan (including those taken in connection with the flood risk assessment mentioned in paragraph 2 and the maps mentioned in paragraph 3), and

9

Information as to SEPA.

10

A description of the coordination process with the arrangements made under Part 1 of the 2003 Act including, in particular, anything done in pursuance of section 48.

Part 2 — Components of the subsequent update of flood risk management plans

11

A summary of any changes which have been made as compared to the previous version of the plan.

12

An assessment of the progress made towards the achievement of the objectives included in the plan under paragraph 1(a).

13

A summary of any measures included in the previous plan under paragraph 1(b) which were not implemented, with reasons for the non-implementation.

14

A description of any other measures implemented since the publication of the previous version of the plan which SEPA considers have contributed to the achievement of the objectives included in the plan under paragraph 1(a).

SCHEDULE 2

Notification

1

(1) The local authority must give notice of a proposed flood protection scheme—

(a) in at least one newspaper circulating in the local authority's area (which must, if practicable, be a local newspaper),

(b) where any of the proposed operations are to take place in another local authority's area, in at least one newspaper circulating in that area (which must, if practicable, be a local newspaper),

(d) to every person known to the local authority—

(i) to have an interest in any land on which the proposed operations are to be carried out, or

(ii) whose interest in any other land may be affected by any of the proposed operations or by any alteration in the flow of water caused by any of the proposed operations,

(e) where any of the proposed operations are to be carried out on land affected by an improvement order, to each of the authorised persons,

(f) to the following persons—

(i) SEPA,

(ii) Scottish Natural Heritage,

(iii) any local authority in whose area any of the proposed operations are to be carried out,

(iv) where any of the proposed operations are to be carried out in a National Park, the National Park authority for that National Park,

(v) any responsible authority whose flood risk related functions may be affected by any of the operations or by any alteration in the flow of water caused by any of the operations (insofar as the authority has not been notified under another provision of this sub-paragraph),

(vi) any statutory undertaker whose statutory undertaking may be affected by any of the operations or by any alteration in the flow of water caused by any of the operations,

(vii) any other person specified by order by the Scottish Ministers, and

(g) in such other manner as the authority considers appropriate.

(2) The local authority must also display a notice of the proposed flood protection scheme in a prominent position in the locality in which the operations are to be carried out.

(3) A notice given under sub-paragraph (1) or (2) must—

(a) contain a general description of the effect of the proposed scheme including—

(i) a summary of the operations to be carried out, and

(ii) a summary of the benefits which the local authority considers are likely to be derived from carrying out the operations,

(b) state where and at what times the scheme documents can be inspected in pursuance of paragraph 2, and

(c) state that objections can be made about the proposed scheme to the local authority before the expiry of the period of 28 days beginning with the date notice is first published under sub-paragraph (1)(a).

(4) Notices under sub-paragraph (1)(d) and (f) and sub-paragraph (2) must be given or, as the case may be, displayed no later than the date that notice is first published under sub-paragraph (1)(a).

(5) In sub-paragraph 1(1)(e), “improvement order” and “authorised persons” have the meanings given in the Land Drainage (Scotland) Act 1958.

Public inspection of scheme proposal

2

(1) The local authority must make a copy of the scheme documents available for public inspection in a place in the authority's area.

(2) Where the proposed operations are to be carried out in another local authority's area, the authority must also make the scheme documents available for public inspection in a place in the other authority's area.

(3) The scheme documents must be available for inspection at all reasonable times during the period from the date notice is given under paragraph 1(1)(a) until the date a decision is made under paragraph 4(1), 7(4) or, as the case may be, 9(1).

Objections

3

(1) Any person may object to a proposed flood protection scheme.

(2) An objection is valid if it—

(a) is made in writing,

(b) sets out the name and address of the objector, and

(c) is made before the expiry of the period of 28 days beginning with the date notice of the scheme is first published under paragraph 1(1)(a).

(3) An objection which is made by electronic means is to be treated as being in writing if it is received in a form which is legible and capable of being used for subsequent reference.

(4) In this schedule, a “late objection” is an objection that would be a valid objection but for the fact that it was made after the end of the period specified in sub-paragraph (2)(c).

Decision where no valid objections received

4

(1) Where, in relation to a proposed flood protection scheme, the local authority receives no valid objections the local authority must, after the expiry of the period referred to in paragraph 3(2)(c), either—

(a) confirm the proposed scheme, or

(b) reject the proposed scheme.

(2) But if, before the local authority makes its decision under sub-paragraph (1), it receives a late objection it must treat that objection as a valid objection for the purposes of sub-paragraph (1) and paragraph 5 if satisfied that it was reasonable for the objector to make the objection after the deadline for doing so.

Preliminary decision following objections

5

(1) Where, in relation to a proposed flood protection scheme, the local authority receives a valid objection, it must make a preliminary decision to—

(a) confirm the proposed scheme without modification,

(b) confirm the proposed scheme with modifications, or

(2) Before making the decision under sub-paragraph (1), the local authority—

(a) must consider—

(i) any valid objections (unless withdrawn), and

(ii) any late objection if the authority is satisfied that it was reasonable for the objector to make the objection after the deadline for doing so, and

(b) may also consider any other matters it considers appropriate.

(3) The local authority must give notice of its decision under sub-paragraph (1) to every person who made an objection which it considered.

(4) A person who made such an objection is referred to in this schedule as a “relevant objector”.

(5) Where any relevant objector is a person to whom sub-paragraph (6) applies, the local authority must also give to the Scottish Ministers notice of its decision together with—

(a) the scheme documents,

(b) a summary of the objections received by the local authority,

(d) copies of any other material considered by the local authority.

(6) This sub-paragraph applies to any person—

(a) having any interest in any land on which the proposed operations are to be carried out,

(b) whose interest in any other land may be affected by any of the operations or by any alteration in the flow of water caused by any of the operations, or

Ministerial call-in

6

(1) Where the Scottish Ministers receive a notice under paragraph 5(5) and any relevant objector is a local authority or a National Park authority, the Scottish Ministers must consider the proposed flood protection scheme.

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