Flood Risk Management (Scotland) Act 2009

Prospective

Part 6 S Powers of entry and compensation

Powers of entry S

79 Powers of entry S

(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),

(c) section 13 (identification of potentially vulnerable areas and local plan districts),

(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,

(c) any land for the purposes of preparing a local flood risk management plan under section 34,

(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.

80 Warrants authorising entry S

(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,

(c) either—

(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.

81 Powers of entry: supplementary S

(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 S

82 Compensation S

(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,

(c) any other exercise of the power in section 56(1),

(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)).

83 Compensation: supplementary S

(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.