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Flood Risk Management (Scotland) Act 2009

Section 61 – Orders under the Land Drainage (Scotland) Act 1958

183.This section makes provision for flood protection schemes to vary improvement orders made under the Land Drainage (Scotland) Act 1958.

184.The 1958 Act allowed owners of agricultural land to apply to the Scottish Ministers for improvement orders authorising drainage works in order to improve drainage or prevent or mitigate flooding or erosion of agricultural land. The Flood Prevention (Scotland) Act 1961 gave local authorities power to protect non-agricultural land from flooding. That Act is repealed by section 70 of the Act and the general power for local authorities to manage flood risk under section 56 covers both agricultural and non-agricultural land.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. That amendment does not prevent new orders being made under the 1958 Act for the purposes of improving drainage or preventing or mitigating erosion. Existing improvement orders under the 1958 Act 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.

185.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.

186.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 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.

187.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. Subsection (7) enables the Scottish Ministers to prescribe the form and content of such notices by regulation.

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