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The Flood Risk Management Act 2009: The Designation of New Responsible Authorities - A Consultation



3.1 Organisations not eligible for designation

Organisations eligible for designation should be non-departmental public bodies and office holders. Therefore, the following organisations are not eligible to be designated as responsible authorities under the FRM Act:

  • Emanations of the Scottish Ministers (e.g. Transport Scotland, Marine Scotland, Historic Scotland) - as such, the duties of the FRM Act already apply to these organisations
  • Private companies (e.g. port authorities, Network Rail, and energy companies)
  • Charitable organisations (e.g. National Trust for Scotland).

3.2 Public bodies and office holders not recommended for designation

We examined a number of public bodies and office holders for designation. Many were screened out as we could not identify a specific flood risk related function or activity based on our criteria (Annex 1). The activities of two organisations, Scottish Natural Heritage and British Waterways Board, warranted further consideration.

Consultation question 2: Are there any other public bodies or office holders that you think should be designated as responsible authorities? If so, please give reasons and support your answer with reference to the duties that you consider to be relevant.

3.2.1 Scottish Natural Heritage

Scottish Natural Heritage (SNH)'s purpose is to:

  • care for and improve the natural heritage
  • help people enjoy the natural heritage responsibly
  • enable greater understanding and awareness of the natural heritage
  • promote sustainable use of the natural heritage, now and for future generations.

SNH has a particular role in protecting designated sites, such as sites with a focus on nature conservation, which cover a large area (e.g. Sites of Special Scientific Interest (SSSIs) cover around 13% of land in Scotland; Special Protection Areas and Special Areas of Conservation cover a similar area, although many sites are protected by more than one designation[1]). Under the Nature Conservation (Scotland) Act 2004, SNH grants permissions for certain activities on SSSIs and also enters into site management agreements with landowners/managers. Therefore, through its role in influencing land management, it also has the potential to influence flood risk management.

However, we do not propose to designate SNH as a responsible authority. It already has a formal role under the FRM Act as a statutory consultee for flood risk management strategies and the supplementary part of local flood risk management plans. It is a provider of advice through advisory groups. We anticipate that SNH will also play a role in implementing flood risk management actions through helping to protect habitats that can contribute to slowing and storing water. We believe that SNH can fulfill this role without designation, and that designation would incur disproportionate responsibilities.

Consultation question 3: Do you agree with our proposal that SNH should not be designated as a responsible authority? If not, please give reasons and support your answer with reference to the duties that you consider to be relevant.

3.2.2 British Waterways Board[2]

British Waterways Scotland is responsible for five canals in Scotland: the Forth & Clyde, Union and Monkland Canals in the Lowlands, the Crinan Canal in Argyll, and the Caledonian Canal in the Highlands. These canals rely on water supplies from a variety of surface waters including 19 reservoirs and their feeder streams, some of which are owned by British Waterways Scotland. These assets are part of the land drainage network of Scotland and will make a contribution to the management of flood risk. (Reservoirs are separately regulated under the Reservoirs (Scotland) Act 2011 and so are not considered further in this paper.)

British Waterways deals with flood risk from its own assets through a risk-based management process, and it undertakes routine and emergency asset maintenance. British Waterways also contributes to flood risk management as it can accept surface water discharges from new developments including residential, industrial and highway drainage. It makes a charge for this service so that it can ensure flood risk does not increase.

Furthermore, understanding how canals interact with a river system during flood events is important in determining the flood risk within any given catchment[3]. It is also possible that in the future canals could provide a function in managing flood water when the natural and urban systems are overwhelmed.

Therefore it is clear that British Waterways already play a role in flood risk management. To establish whether there would be further benefits from the designation of the British Waterways Board as a responsible authority, we looked specifically at the relevant legislation and regulations, and the functions and duties contained within these.

The functions and duties, as set out in legislation, of the British Waterways Board that could impact on flood risk management are:

  • The provision and operation of facilities and harbours for navigation of inland waterways, with due regard to efficiency, economy and safety of their operations (Transport Act 1962)
  • Repair or maintain (or carry out other types of works) on inland waterways and associated infrastructure (British Waterways Act 1995)

Clearly, the operation and maintenance of assets plays an important role in managing flood risk, but legislation already exists to ensure that this is done with due regard to safety. Thus, based on functions in legislation, we could not identify a clear need to designate the British Waterways Board as a responsible authority. We propose to review this once SEPA has completed the mapping and assessment of artificial structures that contribute to flood risk management (Section 19 of the FRM Act).

However, the current and potential future role of British Waterways Scotland in managing surface water should not be overlooked. Notably, this includes the contribution to the Metropolitan Glasgow Strategic Drainage Partnership. We propose that the best way to involve British Waterways in flood risk management is through surface water management planning, rather than in the production of Flood Risk Management strategies or local Flood Risk Management plans. This approach would enable British Waterways Scotland to contribute to surface water management without the disproportionate responsibility of involvement in strategic flood risk management planning.

Consultation question 4: Do you agree with our proposal that the British Waterways Board should not be designated as a responsible authority? If not, please give reasons and support your answer with reference to the duties that you consider to be relevant.

3.3 Public bodies and office holders recommended for designation

We recommend the following public bodies and office holders for designation as responsible authorise under the FRM Act.

3.3.1 National Park Authorities

The purpose of a National Park Authority is to ensure that the four statutory aims of the National Park are achieved in a collective and co-ordinated way. These aims are:

  • To conserve and enhance the natural and cultural heritage of the area
  • To promote sustainable use of the natural resources of the area
  • To promote understanding and enjoyment (including enjoyment in the form of recreation) of the special qualities of the area by the public
  • To promote sustainable economic and social development of the area's communities

There are two National Park Authorities (NPAs) in Scotland: the Loch Lomond & the Trossachs National Park Authority, and the Cairngorms National Park Authority. There are some differences in the roles and responsibilities of the two organisations; however, we treat them both in the same way for the purposes of designation.

NPAs play an important role in land use planning, thereby carrying out activities and granting permission for activities that can play a key role in managing and reducing flood risk.

Firstly, the NPAs produce strategic plans that could play a significant role in flood risk management. Under the National Parks (Scotland) Act 2000, the NPAs are responsible for producing National Park Plans. The park plans set out the aims and objectives for the park, and bring together the activities of a number of different organisations to help deliver the plans. The National Park Plans already consider flood risk management - for example, the current Cairngorms National Park Plan 2007-2012 aims to promote management of natural floodplains and promotion of sustainable flood management.

Secondly, NPAs produce local development plans, which set out where most new developments will happen and policies that will guide decision-making in planning applications. Under the Town and Country Planning (Scotland) Act 1997, NPAs also have powers to grant planning permission. (All planning applications within the boundary of the Loch Lomond & the Trossachs National Park are made to the Park Authority, whereas the Cairngorms NPA has call-in powers[4]).

The Scottish Government's planning policies are set out in the National Planning Framework (NPF2) and Scottish Planning Policy (SPP), Designing Streets and Circulars. Of particular relevance to flood risk management are the statements contained within SPP and NPF2. SPP provides the statement of the Scottish Government's policy on nationally important land use planning matters . This includes subject policies on flooding and drainage. NPF2 is the Scottish Government's strategy for the long term spatial development of Scotland until 2030. It includes references to sustainable flood management, integrated approaches and sustainable catchment management. The Planning etc. (Scotland) Act 2006 requires planning authorities to take NPF2 into account in development plans and development management decisions.

Policies expressed in SPP should inform the content of development plans, should be a consideration in decisions on planning applications and should be used to inform development proposals from initial concept to implementation. For example, the SPP states that planning authorities 'must take the probability of flooding …and risks involved into account when preparing development plans and determining planning applications'. This is reflected in development plans which are produced by planning authorities and National Park Authorities. For example, the Loch Lomond & the Trossachs National Park Adopted Local Plan 2010-2015 considers where development should not take place due to high or moderate flood risk.

Given the key role of development planning in managing flood risk, the planning functions of NPAs, and the need to ensure consistent approach between development planning and flood risk management from all planning authorities (i.e. NPAs and local authorities), we propose that the NPAs are designated as responsible authorities under the FRM Act.

Consultation question 5: Do you agree with our proposal that the National Park Authorities should be designated as responsible authorities? If not, please give your reasons.

3.3.2 Forestry Commissioners

The Forestry Commissioners are responsible for the protection and expansion of Scotland's forests and woodlands. As an indication of the scale, the area of woodland in Scotland is 18% (~1:4 broadleaf: coniferous by area), and around 35% of this woodland is owned or managed by the Forestry Commissioners[5].

Forestry may play a significant role in managing flood risk. The Forest Research publication Woodlands for water reviews the evidence for use of woodlands for flood alleviation and concludes that, overall, there appears to be significant scope for using woodland to help reduce flood risk for local flood events and smaller flood events. Floodplain and riparian woodland may also form part of a package of integrated measures, for example to climate proof existing or new flood protection schemes.

The Forestry Commissioners are already carrying out work related to flood risk management: for example, the Scottish Forestry Strategy 2006 provides direction to the Forestry Commission Scotland from Scottish Ministers to contribute to sustainable flood management as part of objectives to help tackle climate change.

We propose to designate the Forestry Commissioners as a responsible authority because of the powers and duties contained within the Forestry Act 1967:

  • powers to manage, plant and use (for the exercise of their functions under the 1967 Act) any land placed at their disposal
  • general duties to develop afforestation and powers related to granting felling licences.

These powers and general duties enable the Forestry Commissioners to carry out activities to grant permission for activities that could play a significant role in managing flood risk.

Consultation question 6: Do you agree with our proposal that the Forestry Commissioners should be designated as a responsible authority? If not, please give your reasons.