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Flood and Water Management Act 2010

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38Incidental flooding or coastal erosion: [F1appropriate agency]E+W

This section has no associated Explanatory Notes

(1)If Conditions 1, 2 and 3 are satisfied [F2the appropriate agency] may carry out work of a kind listed in section 3(3)(a) to (e) in a way that will or may cause—

(a)flooding,

(b)an increase in the amount of water below the ground, or

(c)coastal erosion.

(2)Condition 1 is that [F2the appropriate agency] considers the work in the interests of—

(a)nature conservation (including conservation of the landscape),

(b)preservation of cultural heritage, or

(c)people's enjoyment of the environment or of cultural heritage.

(3)Condition 2 is that [F2the appropriate agency] considers the benefits of the work will outweigh the harmful consequences for matters listed in section 2(4)(a) to (d).

(4)Condition 3 is that [F2the appropriate agency] has consulted—

[F3(za)the other appropriate agency, if—

(i)the work is carried out in its area, or

(ii)consequences of the kinds listed in subsection (1) are likely to occur in its area,]

(a)the lead local flood authority for the area in which the work is to be carried out,

(b)the district council (if any) for that area,

(c)the internal drainage board (if any) for that area, and

(d)persons who own or occupy land that, in the opinion of [F2the appropriate agency], is likely to be directly affected by the work.

(5)In carrying out work in reliance on this section, [F2the appropriate agency] must have regard to—

(a)the national flood and coastal erosion risk management strategies under sections 7 and 8,

(b)any guidance issued under those sections,

(c)the local flood risk management strategy under section 9 or 10 for the area concerned, and

(d)any guidance issued under those sections by the lead local flood authority for the area concerned.

(6)The Agency may arrange for work to be carried out in reliance on this section on the [F4appropriate agency's] behalf by—

(a)a lead local flood authority,

(b)a district council, or

(c)an internal drainage board.

(7)Subsection (1) may be relied on to carry out work whether or not it forms part of the exercise of other powers; but nothing in subsection (1) restricts the powers of [F2the appropriate agency] under another enactment.

(8)The Minister must by order apply to this section (with or without modifications) provisions of the Water Resources Act 1991 about—

(a)compulsory purchase,

(b)powers of entry, and

(c)compensation.

(9)An order under subsection (8) may not be made unless a draft has been laid before and approved by resolution of—

(a)each House of Parliament, in the case of an order made by the Secretary of State, or

(b)the National Assembly for Wales, in the case of an order made by the Welsh Ministers.

(10)In this section “the Minister” means—

(a)the Secretary of State in relation to England, and

(b)the Welsh Ministers in relation to Wales.

[F5(10A)In this section—

  • “the appropriate agency” means—

    (a)

    the Environment Agency, in relation to work for the benefit of England, and

    (b)

    the Natural Resources Body for Wales, in relation to work for the benefit of Wales;

  • “area”, in relation to an appropriate agency, means—

    (a)

    in the case of the Environment Agency, England, and

    (b)

    in the case of the Natural Resources Body for Wales, Wales.]

(11)Other expressions in this section have the same meaning as in Part 1.

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Amendments (Textual)

Commencement Information

I1S. 38 in force at 18.1.2011 for specified purposes by S.I. 2011/95, art. 2(b)

I2S. 38 in force at 1.12.2011 in so far as not already in force by S.I. 2011/2856, art. 3(a) (with art. 4(1))

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