Legislative Framework

This section describes the legislative framework for flood risk management within Scotland only.

Information on the legislative framework within Northern Ireland can be found on the Rivers Agency's website and within England and Wales on Defra's website.

The Flood Risk Management (Scotland) Act, 2009

The Flood Risk Management (Scotland) Act received Royal Assent on 16 June 2009. The Act will introduce a more sustainable approach to flood risk management, taking into account the impact of climate change. Specific measures within the Flood Risk Management (Scotland) Act 2009 include:

A framework for coordination and cooperation between all organisations involved in flood risk management;
Assessment of flood risk and preparation of flood risk management plans;
New responsibilities for SEPA, Scottish Water and local authorities in relation to flood risk management;
A revised, streamlined process for flood protection schemes;
New methods to enable stakeholders and the public to contribute to managing flood risk, and;
A single enforcement authority for the safe operation of Scotland's reservoirs.

For more information, please visit the Scottish Government's website at http://www.scotland.gov.uk/Topics/Environment/Water/Flooding/FRMAct.

The Act will be commenced in stages over the coming year. Current flooding legislation will remain in place until Section 70 of the Act repeals the Flood Prevention (Scotland) Act 1961. Information on the RISE website will be updated in due course.

Water Environment & Water Services Act, 2003

This Act transposes the EU Water Framework Directive into Scots Law. In respect of flood risk management, the 2003 Act (Subsections (3) and (4)) requires ‘‘Scottish Ministers, SEPA and the responsible authorities to should work in an integrated fashion and co-operate with each other to promote sustainable flood management.

The Water Environment (Controlled Activities) Regulations, 2005 (CAR)

The CAR regulations were passed by the Scottish Parliament on 2 June 2005 and will be fully in force by 1 April 2006. Existing authorisations will come under the new regime with effect from 1 October 2005.

These regulations bring into effect the requirements of section 20 of the WEWS Act for control over the following activities:

Activities liable to cause pollution of the water environment;

Abstraction of water from the water environment;
The construction, alteration or operating of impounding works in surface waters or wetlands;
Carrying out building, engineering or other works: in inland water other than groundwater, or wetlands; or in the vicinity of inland water or wetlands, and likely to have a significant adverse effect on the water environment.
Artificial recharge or augmentation of groundwater

Flood defence schemes fall under these regulations.

Flood Prevention (Scotland) Act, 1961

Under this Act, Councils were charged with the implementation of the Flood Prevention (Scotland) Act 1961. This Act gave the local authority the power to carry out measures for the prevention or mitigation of flooding of non-agricultural land including:

cleansing any watercourse or embankment
repairing any watercourse or embankment
maintenance of any watercourse or embankment

These powers are permissive and discretionary only, i.e. the authority may exercise the powers but does not have to. Additionally, no work other than maintenance can be carried out under the Act without the promotion of a flood prevention scheme by the local authority (flood prevention schemes are confirmed by Scottish Ministers and financially supported by the Scottish Government if they comply with the approved cost/benefit ratio).

Flood Prevention and Land Drainage (Scotland) Act, 1997

The Flood Prevention and Land Drainage (Scotland) Act 1997 came into force on 26 May 1997 and amended the Flood Prevention (Scotland) Act 1961 by placing statutory duties on local authorities to maintain watercourses within their area. The main sections of the Flood Prevention and Land Drainage (Scotland) Act 1997 can be summarised as follows:

Requires the local authority to assess flood risk from watercourses
Requires the local authority to assess all watercourses from time to time to ascertain whether or not they are likely to cause flooding of non-agricultural land
Requires the local authority to carry out works to reduce the likelihood of flooding of non-agricultural land
The Act does not apply where failure to maintain would result only in flooding of land in the same ownership as the watercourse requiring maintenance
The Act does not place any duty to undertake capital works
Requires local authorities to liaise with adjacent authorities
Requires local authorities to prepare biennial reports

To summarise, maintenance is no longer discretionary but a legal requirement.

National Flooding Framework and Statement of Commitments

In October 2002 an Ad Hoc Committee of Ministers, chaired by the Deputy First Minister, was set up to consider the arrangements for addressing flood risk and how advice and support is provided to those at risk from, and affected by, flooding. In February 2003 the Scottish Parliament Cabinet agreed:

a Statement of Commitments to reduce the risks and impacts of flooding
and an action plan in the form of the National Flooding Framework. The National Flooding Framework aims to address the problems of flooding through four areas of action, namely, Awareness, Avoidance, Alleviation, and Assistance.

Town and Country Planning (Scotland) Act, 1997

The Act requires planning authorities to prepare structure and local plans and to take decisions on planning applications in accordance with the plans unless material considerations indicate otherwise.

With regard to flooding, Scottish Planning Policy (SPP) 7 Planning and Flooding sets the policy for preparing the plans and determining applications. Its central purpose is to prevent further development which would have a significant probability of being affected by flooding or which would increase the probability of flooding elsewhere. This includes coastal and watercourse flooding.

The SPP is supported by Planning Advice Note (PAN) 69 Planning and Building Standards Advice on Flooding. Secondary legislation requires planning authorities to consult SEPA where there is a flood risk and for the case to be notified to Scottish Ministers if the planning authority intends to grant permission contrary to the advice of SEPA.

Coast Protection Act, 1949

The Coast Protection Act sets out the legislative framework for the protection of the coastline against erosion from the sea. Local authorities have permissive powers to carry out works under the terms of this Act and to take appropriate measures as necessary or expedient for the protection of any land in their area.

The Environment Act, 1995

This Act places duties on SEPA to

assess, as far as it considers it appropriate, the risk of flooding in any area of Scotland.
Where requested by a planning authority, provide advice to the authority on the risk of flooding in any part of the authority's area on the basis of such information as it holds.

Civil Contingencies Act 2004 and Civil Contingencies Act and Contingency Planning (Scotland) Regulations, 2005

The purpose of the Act, Regulations and Scottish Guidance is to provide a framework for Scotland’s contribution to UK civil protection in the 21st century. Part 1 of the Civil Contingencies Act 2004 defines an emergency as "an event or situation which threatens serious damage to human welfare in a place in the UK, the environment of a place in the UK, or the security of the UK or of a place in the UK". This Act therefore covers inland and coastal flooding events.

The Civil Contingencies Act and Contingency Planning (Scotland) Regulations 2005 underpin the implementation of the Act and provide information on the duties of Category 1 responders in terms of local arrangements for civil protection. Category 1 responders are:

Local authorities;
Police;
Fire service;
Ambulance service;
Health Boards; and
SEPA.

The main civil protection duties fall on the Category 1 responders as follows:

risk assessment;
planning to continue to perform functions -business continuity management (BCM);
emergency planning; and maintaining public awareness; and
arrangements to warn, inform and advise the public.