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Flood and Water Management Act 2010

Schedule 1: Risk Management: Designation of features

 “Designating authority”

101.Paragraph 1 defines the Environment Agency, local authorities and internal drainage boards as “designating authorities” who may designate features under this Schedule. They will be responsible for managing the designation process, which includes issuing the appropriate notices to the owners of features being designated, and considering any representations made about a notice.

 “Responsible authority”

102.Paragraph 2 ensures that once a feature has been designated, the “responsible authority” (beside the owner) has an ongoing and exclusive role in exercising functions in respect of the feature. It is the responsible authority that will monitor and enforce the designation and it is the responsible authority that has the power to consent to the alteration, removal or replacement of a feature.

103.In effect, the designating authority becomes the responsible authority once the designation has been confirmed (by the issue of a designation notice). However, it is possible for an authority to enter into arrangements with other relevant authorities to carry out functions on its behalf. An example of this might be the establishment of a single designating unit for an area in the spirit of co-operation and the interests of efficiency. The relevant provisions can be found at section 13.

104.A designation will be made as part of an authority’s risk management activity; authorities may not transfer their designations to another authority except in exceptional circumstances. Specifically, a designation may be adopted by another authority with relevant functions if the responsible authority ceases to have relevant functions itself: the relevant functions will be in respect of the risk the designated feature affects. There are specific circumstances when this may be the case, for example if a new unitary authority is established for an area which necessitates a transfer of responsibilities from a former district authority to a newly established unitary authority.

 “Owner”

105.Paragraph 3 defines the “owner” of a feature that may be designated. The owner is either the owner of the land on which the feature is situated, or if different, the person that manages or controls the feature.

Designation

106.Paragraph 4 defines a feature as “a structure, or a natural or man-made feature of the environment”. It is a broad definition which may include things that affect flood or coastal erosion risk in an area but are unlikely to have protection under existing law. Examples may include (but are not limited to) features and structures such as walls, channels, culverts, sluices, raised ground and embankments.

107.A feature may be designated if:

  • the designating authority is of the opinion that the existence or location of the feature affects flood risk or coastal erosion risk;

  • the designating authority has responsibility for the risk that is affected;

  • the feature has not been designated already, including by another authority; and

  • it is not owned by a designating authority.

Effect of a designation

108.Paragraph 5 prohibits a person from altering, removing, or replacing a designated structure or feature without the permission of the responsible authority. If a person contravenes this requirement, the responsible authority may take enforcement action.

109.It also requires that a designation is registered as a local land charge by the designating authority. If the designation is cancelled, the responsible authority will remove the local land charge.

110.It does not provide for cost recovery in registering or cancelling a local land charge in respect of a designated feature.

Consent to alteration, removal or replacement

111.Paragraph 6 sets out that the responsible authority may give consent to alter, remove or replace a designated feature. Any such consent must be given by notice to the owner. Notice may be given following an application by the owner, or if the responsible authority thinks it appropriate for another reason.

112.The responsible authority may, by notice, vary or withdraw consent that it has given; the notice to vary or withdraw consent may not be backdated.

113.The responsible authority may refuse to give consent, but it may only do so if it is of the opinion that the proposed alteration, removal or replacement would affect a flood risk or coastal erosion risk. If a person has been refused consent, they may appeal the decision of the responsible authority in accordance with regulations made under paragraph 15 of this schedule.

Provisional designation notice:  procedure

114.Paragraph 7 provides that before a feature may be formally designated, the designating authority must first issue a provisional designation notice to the owner of the feature in question.

115.The provisional designation notice must provide important information about the provisional designation. As a minimum the notice must set out:

  • the feature in question;

  • the date from which the feature is provisionally designated;

  • why the feature is being provisionally designated;

  • how the owner of the feature may make representations to the designating authority in respect of the notice; and

  • the period in which representations may be made.

116.During the period of notice, the owner has the right to make representations to the designating authority on the provisional designation, which the authority must consider before confirming a designation by means of a designation notice.

117.However, because the provisions are designed to protect the flood and coastal erosion risk management properties of the feature in question (by preventing changes from being made that could affect its flood or coastal risk management properties), the feature is to be treated as though it has been formally designated for the duration of the period of notice.

118.This means that no alteration, removal or replacement of the feature may be made without the written consent of the designating authority. The designating authority may issue an enforcement notice in respect of a person that contravenes a provisional designation notice and it is an offence to fail to comply with an enforcement notice in respect of a provisional designation as it is for a final designation.

119.The designating authority may also cancel a provisional designation by issuing a notice to that effect.

Designation notice:  procedure

120.Paragraph 8 sets out that a designation notice may be issued by the designating authority that confirms indefinitely the status of the provisional designation.

121.A designation notice may not be issued until the period of notice for making representations has expired. The designating authority must have regard to any representations made within the period of notice in deciding whether to confirm the designation.

122.The designation notice must be issued within 60 days of the date of issue of the provisional designation notice. After this time the provisional designation will cease to have effect. If the designating authority still wants to designate the feature after that time, then a new provisional designation notice is required. The designating authority may not confirm a designation or take any enforcement action in respect of a provisional designation once the period of notice has expired.

123.The designation notice must include certain particulars about the feature and designation including what is being designated and why, and give information about the appeals process.

124.The owner of the feature may appeal a designation notice, for example if the authority has not taken account of reasonable representations made in respect of the provisional designation that preceded the designation notice.

Cancellation

125.Paragraph 9 provides that the responsible authority may cancel a designation (including a provisional designation). It may do so at the owner’s request or where it thinks it appropriate for another reason, for example if a new flood defence system has come on-line that negates the need for the designation. An owner may appeal if their request for a cancellation is denied.

126.Where the responsible authority intends to cancel a designation it must issue a notice to the owner that must specify the details of the feature to which it refers, the date on which it comes into effect, and the reason for the cancellation.

127.The responsible authority must remove the local land charge. The authority is not empowered to charge for a cancellation.

Notice to other authorities

128.Paragraph 10 requires the responsible authority to notify other authorities about a designation or cancellation where the other authority is likely to have an interest. This is in addition to requirements under section 21 for the lead local flood authority to keep a register of features and a record of information about them, the duty to co-operate, and the power to enter into arrangements under section 13.

Enforcement notice

129.Paragraph 11 provides powers to enable the responsible authority for a designated feature to enforce the designation. It is not an offence in the first instance to contravene paragraph 5(1) (the prohibition on altering, removing or replacing a designated feature without the consent of the responsible authority) but it is an offence not to comply with a subsequent enforcement notice, described in paragraph 133 of these notes below.

130.The responsible authority may issue an enforcement notice to the person that contravened paragraph 5(1), or the owner of the feature.

131.An enforcement notice must give instructions to the person on whom it is served, setting out the corrective measures the person must undertake and by when they should be completed in order to restore the feature to its proper state. If an enforcement notice is ignored the authority may carry out the remedial work and may recover costs incurred from the person on whom the enforcement notice was served.

132.An enforcement notice may be appealed in accordance with regulations made under paragraph 15 of this Schedule.

133.Paragraph 11(4)(a) provides that it is an offence to fail to comply with an enforcement notice, and that if found guilty, a person may be fined up to a maximum amount as set out in level 5 of the standard scale.

134.The enforcement powers also apply to a provisional designation notice until such time as it expires.

Emergency powers

135.Paragraph 12 includes specific powers for a responsible authority to act in an emergency.

136.This paragraph only applies if: (a) a person carries out works to alter, remove or replace a designated feature without obtaining consent; and (b) the responsible authority considers that this increases an immediate and serious flood or coastal erosion risk that warrants emergency action. In such an emergency situation the authority may take remedial action without the need to first serve an enforcement notice. Such emergency action includes entry to the land on which the feature is located (see paragraph 13 of Schedule 1).

137.The authority may recover from the owner any costs incurred in carrying out the emergency works.

Powers of entry

138.Paragraph 13 gives powers of entry to land for the following purposes:

  • to establish whether a person has altered, removed or replaced a designated feature without consent of the relevant authority;

  • to determine whether a person has complied with an enforcement notice;

  • to take the steps set out in an enforcement notice if the person on which it was served has not taken them; or

  • to act in an emergency.

139.The authority must give at least 7 days notice to the occupier of the land and state the reason for entry unless an emergency necessitates earlier intervention.

140.Anyone exercising the powers of entry must provide on request written proof of their authorisation to enter the land.

141.Paragraph 13(5) makes it an offence to obstruct a person authorised by the authority from entering land for the purposes of exercising default enforcement powers and emergency powers. Anyone found guilty is liable to up to: (a) two years imprisonment or a fine or both (on indictment); or (b) a fine up to the statutory maximum (on summary conviction).

Compensation for owners and third parties

142.Paragraph 14 provides that an authority must pay compensation to a person in respect of damage to their land resulting from the exercise of the powers of entry.

143.However, compensation is not payable to a person who has altered, removed or replaced the feature without the relevant authority’s consent, or has failed to comply with an enforcement notice.

144.There is an exception: if an authority has exercised its powers unreasonably then compensation should be paid in respect of any damage suffered as a result of the unreasonable use of powers irrespective of whether a notice has been contravened. This is in addition to any civil remedies that are available to someone who has suffered damage.

Appeals

145.The owners of designated features will have a right of appeal in accordance with regulations made under paragraph 15 against:

  • a designation notice (but not a provisional designation notice, in respect of which representations may be made);

  • a decision in connection with a consent to alter, remove or replace a designated feature;

  • refusal to cancel a designation; and

  • receipt of an enforcement notice.

146.Sub-paragraph (2) makes provision about the regulations.

147.Sub-paragraph (3) stipulates that where an appeal is made: a) the designation remains in place until the appeal has been determined; and b) the person or legal body who hears and determines the appeal may cancel the designation.

148.Sub-paragraph (4) specifies that if someone appeals against an enforcement notice: a) the timescale for completion of the specified remedial action is temporarily suspended until the appeal has been determined; and b) the person or legal body who hears and determines the appeal may cancel the notice if appropriate. Sub-paragraph (5) specifies that the first set of regulations under paragraph 15 are subject to the affirmative resolution procedure.

Notices and applications

149.Paragraph 16 provides that the Minister (as defined in paragraph 17 of this Schedule) may make regulations (by statutory instrument) about the serving of notices, and the form and procedure for applications under this Schedule.

 “The Minister”

150.Paragraph 17 defines the “Minister” for the purposes of Schedule 1 as meaning the Secretary of State in England and Welsh Ministers in Wales.

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