The Environmental Permitting (England and Wales) Regulations 2016

Meaning of “flood risk activity”

3.—(1) Subject to sub-paragraph (2), a “ flood risk activity” means—

(a) erecting any structure (whether temporary or permanent) in, over or under a main river;

(b) the carrying out of any work of alteration or repair on any structure (whether temporary or permanent) in, over or under a main river if the work is likely to affect the flow of water in the main river or to affect any drainage work;

(c) erecting or altering any structure (whether temporary or permanent) designed to contain or divert the floodwaters of any part of a main river;

(d) any dredging, raising or taking of any sand, silt, ballast, clay, gravel or other materials from or off the bed or banks of a main river (or causing such materials to be dredged, raised or taken), including hydrodynamic dredging and desilting;

(e) any activity which is likely to divert the direction of the flow of water into or out of a main river or alter the level of water in a main river;

(f) any activity within 8 metres of a non-tidal main river (or within 8 metres of any flood defence structure or culvert on that river) or any activity within 16 metres of a tidal main river (or within 16 metres of any flood defence structure or culvert on that river) which is likely to—

(i) cause damage to or endanger the stability of the banks of that river or of any culvert,

(ii) cause damage to any river control works,

(iii) alter, reconstruct, discontinue or remove any river control works,

(iv) divert or obstruct flood waters or affect the drainage of that river, or

(v) interfere with the regulator’s access to or along that river;

(g) any activity (other than an allowed activity) on a flood plain that is—

(i) more than 8 metres from a non-tidal main river or more than 16 metres from a tidal main river, or

(ii) more than 8 metres from any flood defence structure or culvert on a non-tidal main river or more than 16 metres from any flood defence structure or culvert on a tidal main river,

which is likely to divert or obstruct floodwaters, to damage any river control works or to affect drainage;

(h) any activity within 16 metres of the base of a sea defence which is likely to—

(i) endanger the stability of, cause damage to or reduce the effectiveness of that sea defence, or

(ii) interfere with the regulator’s access to or along that sea defence;

(i) any activity within 8 metres of the base of a remote defence which is likely to—

(i) endanger the stability of, cause damage to or reduce the effectiveness of that defence, or

(ii) interfere with the regulator’s access to or along that defence;

(j) any quarrying or excavation within 16 metres of the base of a remote defence which is likely to cause damage to or endanger the stability of that defence;

(k) any quarrying or excavation within 16 metres of a main river or any flood defence structure or culvert on that river which is likely to cause damage to or endanger the stability of the banks of that river.

(2) The following paragraphs of sub-paragraph (1) are excluded from the definition of flood risk activity in respect of a statutory function to which this sub-paragraph applies—

(a) in respect of England, paragraphs (d) to (k);

(b) in respect of Wales, paragraphs (e) to (k).

(3) Sub-paragraph (2) applies to a statutory function—

(a) exercisable by a person carrying on an undertaking referred to in paragraph 1(4) of Schedule 22 to the 1991 Act, as read with sub-paragraphs (4A) and (5) of that paragraph(1), or

(b) relating to the management of flood risk exercisable by a risk management authority within the meaning of section 6(13) of the Flood and Water Management Act 2010(2).

(4) In this paragraph—

“allowed activity” means—

(a)

any activity that has been granted planning permission by a local planning authority or the Secretary of State under the Town and Country Planning Act 1990(3), a certificate under section 191 of that Act or an established use certificate under section 192 of that Act, as originally enacted(4), which continues to have effect for the purposes of subsection (4) of section 192, or

(b)

the construction of hay or straw stacks, clamps or manure (or similar) heaps, in accordance with accepted agricultural practice;

“conservancy authority” means any person who has a duty or power under any enactment to conserve, maintain or improve the navigation of a tidal water and is not a navigation or harbour authority;

“culvert” means a covered channel or pipe which prevents the obstruction of a main river or drainage path by an artificial construction;

“harbour authority” has the meaning given in section 313 of the Merchant Shipping Act 1995(5), other than a navigation authority;

“remote defence” means any berm, wall or embankment that is constructed for the purposes of preventing or alleviating flooding from, or in connection with, any main river, other than any berm, wall or embankment which is a bank within the meaning of paragraph 2(2);

“river control works” means any structure or appliance used for measuring or regulating—

(a)

the level of water in a main river,

(b)

the flow of water in, into or out of, a main river, or

(c)

the drawing of water from, or the delivering of water into, a main river,

and includes any sluices, flood gates, lashers, valves, paddles, penstocks, locks, weirs, dams, pumps, pumping machinery and pipes;

“sea defence” includes any bank, wall, embankment (and any berm, counterwall or cross-wall connected to any such bank, wall or embankment), barrier, tidal sluice and other defence, whether natural or artificial, against the inundation of land by sea water or tidal water, including natural or artificial high ground which forms part of or makes a contribution to the efficiency of the defences of the regulator’s area against flooding, but excludes any sea defence works which are for the time being maintained by a coast protection authority under the provisions of the Coast Protection Act 1949(6) or by any local authority or any navigation, harbour or conservancy authority.

(1)

Paragraph 1 of Schedule 22 was amended by paragraph 43(1) of Schedule 9 to the Coal Industry Act 1994 (c. 21), paragraph 15 of Schedule 5 to the Transport Act 2000 (c. 38), paragraph 114(2) of Schedule 17 to the Communications Act 2003 (c. 21), paragraph 18 of Schedule 19 to the Energy Act 2004 (c. 20), paragraph 138 of Part 3 of Schedule 12 to the Postal Services Act 2011 (c. 5), and by S.I. 2001/1149 and 2013/755 (W. 90).

(2)

2010 c.29; section 6(13) was amended by S.I. 2013/755 (W. 90).

(3)

1990 c. 8.

(4)

Sections 191 and 192 were substituted by section 10(1) of the Planning and Compensation Act 1991 (c. 34).

(5)

1995 c. 21; the definition of “harbour authority” was substituted by paragraph 19(2)(a) of Schedule 6 to the Merchant Shipping and Maritime Security Act 1997 (c. 28).

(6)

1949 c. 74.