Flood Risk Management (Scotland) Act 2009: local authority functions under part 4 guidance

Guidance on local authorities’ powers under Part 4 of the Flood Risk Management (Scotland) Act 2009, particularly section 56 and the statutory procedures for flood protection schemes.

4.4 Appendix D - Land Drainage Orders

Section 61 makes provision for flood protection schemes to vary improvement orders made under the Land Drainage (Scotland) Act 1958. The powers do not extend to flood protection works. The 1958 Act allowed owners of agricultural land to apply jointly to the Scottish Ministers for improvement orders authorising drainage works in order to improve drainage or prevent or mitigate flooding or erosion of their agricultural holdings. Under the terms of the Orders the authorised persons were responsible for the maintenance of the authorised works in perpetuity and the cost of such maintenance was recorded as a burden on the land in the titles of the agricultural land concerned. As the general power for local authorities to manage flood risk under section 49 now covers 'all land', Paragraph 1 of schedule 3 amends the 1958 Act so that new improvement orders cannot be made for the purposes of preventing or mitigating flooding. However, that amendment does not prevent new orders being made under the 1958 Act for the purposes of improving drainage or preventing or mitigating erosion. Records of such orders are not held centrally but it is understood that there have been no improvement orders granted since the early 1980's. Existing improvement orders under the 1958 Act and earlier Acts will remain in place but this section allows them to be varied where they affect any land on which operations are proposed to be carried out under a flood protection scheme.

Subsection (2) sets out the changes which can be made to improvement orders. Flood protection schemes can revoke improvement orders completely, they can reduce the size of improvement areas or they can remove all or any part of the drainage or protective works covered by an improvement order. Schemes can also amend, reapportion or remove the obligations on authorised persons to maintain drainage or protective works covered by the improvement order. This should be read with subsections (3) and (4) which restrict the changes which can be made to maintenance obligations. "Authorised persons" are defined in section 2(2) of the 1958 Act as the owners of agricultural land situated in the improvement area covered by the improvement order.

Subsections (3) and (4) restrict the changes which can be made to maintenance obligations under improvement orders. Subsection (3) prevents flood protection schemes from altering maintenance obligations under improvement orders so as to oblige the authorised persons to maintain things done by local authorities under schemes. Where proposed scheme operations will alter drainage or protective works carried out under an improvement order, subsection (4) requires the scheme to remove the obligations on authorised persons to maintain the parts of the drainage or protective works which are altered.

The commencement of a flood protection scheme triggers the variation or revocation of the improvement order. Subsection (6) requires a notice of the variation or revocation of an improvement order to be registered in the Land Register of Scotland or the Register of Sasines, whichever is appropriate. The form and content of such notices may be specified by order under section 61(7) of the Act.

Contact details for Registers of Scotland are below:

Registers of Scotland, Meadowbank House, 153 London Rd, Edinburgh, Midlothian EH8 7AU. Phone: 0131 659 6111


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