The Flood Risk Management (Scotland) Act 2009 was enacted on 16 June 2009 and will repeal the Flood Prevention Act 1961 when it comes into force this year.

Originally, the 1961 Act gave Local Authorities permissive and discretionary powers in relation to flood preservation but this was altered in 1997 when the Act was amended by The Flood Prevention and Land Drainage (Scotland) Act 1997 and statutory obligations imposed on the Local Authorities. The amended 1961 Act requires Local Authorities to assess all watercourses in their area to determine whether they are likely to cause flooding of non-agricultural land and to carry out works to reduce the likelihood of such flooding. This obligation does not extend, however, to where the watercourse and land are owned by the same person (not being a Local Authority).

The 2009 Act creates general duties which Scottish Ministers, SEPA and responsible authorities must comply with when exercising their functions in relation to flood risk management under Part 1 of the Act.It provides for the preparation and review of flood risk assessments, grants local authorities broad powers to allow them to take forward a full range of flood risk management measures and also provides SEPA with a new statutory framework for exercising their flood risk management functions. The Act does not pose many positive obligations on land owners but does require that they cooperate with Local Authorities and other public bodies to allow proper implementation of the flood risk management measures. 

Provision for the compulsory purchase of land required for the purposes of the land is made under s66. However, Crown land is excluded from the power of compulsory acquisition.

S67 of the 2009 Act enables Local Authorities to recover any expenses incurred in relation to the repairing or reinstating flood protections work from the owner or occupier of the land but only where that person’s actions have caused the damage. Local Authorities are also empowered to recover expenses incurred in carrying out clearance and repair works from the owner or occupier of the land where the works are necessary as a result of that person’s actions.

Local Authorities can also require, under s68, landowners or occupiers to state their interest in land in writing where this is necessary in order to enable it to exercise any of it’s functions under the Act.  Landowners or occupiers may also be required to provide contact details for any other person known to have an interest in that land. If landowners fail to provide such information they will be guilty of an offence. Special provision is made in relation to Crown land in s91 which provides that the Crown will not be criminally liable for any contravention of the Act’s provisions but the Court of Session may declare any act of the Crown in contravention of the Act’s provisions as unlawful.

Local Authorities are provided with rights of entry to allow them to carry out flood protection works under s79 of the Act as part of a flood protection scheme and to carry out maintenance of such works or to carry out investigations to assess in what manner they should, if at all, carry out any of their functions under Part 4 of the Act. They are also granted rights of entry to support work to prepare local flood risk management plans. The powers of entry in relation to Crown land are also limited by the Act under s91 which requires the consent of an appropriate authority before these powers can be exercised.

Further information
For further information on any of these aspects, please contact Jim Drysdale or Diana Thurston-Smith  or your usual contact within the Land Resources Team. 

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.