71. The provisions of this Part have effect for the protection of a drainage authority unless otherwise agreed in writing between the undertaker and the drainage authority.E+W
Commencement Information
I1Sch. 17 para. 71 in force at 1.1.2022, see art. 1
72. In this Part—E+W
“construction” includes execution, placing, altering, replacing, relaying and removal; and
“construct” and “constructed” must be construed accordingly;
“drainage authority” means—
in relation to an ordinary watercourse, the drainage board concerned within the meaning of section 23 (prohibitions of obstructions etc in watercourses) of the Land Drainage Act 1991(1); and
in relation to a main river or any sea defence work, the Environment Agency;
“drainage work” means any watercourse and includes any land that provides or is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence, sea defence or tidal monitoring;
“ordinary watercourse” has the meaning given in the Land Drainage Act 1991(2);
“plans” includes sections, drawings, specifications and method statements;
“specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a drainage work or is otherwise likely to—
affect any drainage work or the total volume or volumetric rate of flow of water in or flowing to or from any drainage work;
affect the flow, purity, or quality of water in any watercourse; or
affect the conservation, distribution or use of water resources.
Commencement Information
I2Sch. 17 para. 72 in force at 1.1.2022, see art. 1
73.—(1) Before beginning to construct any specified work, the undertaker must submit to the relevant drainage authority plans of the specified work and such further particulars available to it as the relevant drainage authority may within 28 days of the submission of the plans reasonably require.E+W
(2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the relevant drainage authority.
(3) Any approval of the relevant drainage authority required under this paragraph—
(a)must not be unreasonably withheld or delayed;
(b)is deemed to have been refused if it is neither given nor refused within 28 days of the submission of the plans for approval (or submission of further particulars if required by the relevant drainage authority under sub–paragraph (1)); and
(c)may be given subject to such reasonable requirements as the relevant drainage authority may make for the protection of any drainage work or, where the drainage authority is the Environment Agency also, for the protection of water resources for the prevention of pollution or in the discharge of its environmental duties.
(4) The relevant drainage authority must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub–paragraph (3)(b).
Commencement Information
I3Sch. 17 para. 73 in force at 1.1.2022, see art. 1
74. Without limiting paragraph 73, the requirements which the relevant drainage authority may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified work (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—E+W
(a)to safeguard any drainage work against damage; or
(b)to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased, by reason of any specified work.
Commencement Information
I4Sch. 17 para. 74 in force at 1.1.2022, see art. 1
75.—(1) Subject to sub–paragraph (2), any specified work, and all protective works required by the relevant drainage authority under paragraph 74, must be constructed—E+W
(a)without unreasonable delay in accordance with the plans approved or settled under this Part; and
(b)to the reasonable satisfaction of the relevant drainage authority, and an officer of the relevant drainage authority is entitled to watch and inspect the construction of such works.
(2) The undertaker must give to the relevant drainage authority—
(a)not less than 14 days’ notice in writing of its intention to commence construction of any specified work; and
(b)notice in writing of its completion not later than 7 days after the date on which it is brought into use.
(3) If the relevant drainage authority reasonably requires, the undertaker must construct all or part of the protective works so that they are in place before the construction of the specified work.
(4) If any part of a specified work or any protective work required by the relevant drainage authority is constructed otherwise than in accordance with the requirements of this Part, the relevant drainage authority may by notice in writing require the undertaker at the undertaker’s expense to comply with the requirements of this Part or (if the undertaker so elects and the relevant drainage authority in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the relevant drainage authority reasonably requires.
(5) Subject to sub–paragraph (6), if within a reasonable period, being not less than 28 days from the date when a notice under sub–paragraph (4) is served on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the relevant drainage authority may execute the works specified in the notice, and any expenditure incurred by it in so doing is recoverable from the undertaker.
(6) In the event of any dispute as to whether sub–paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub–paragraph, or as to the reasonableness of any requirement of such a notice, the relevant drainage authority must not except in emergency exercise the powers conferred by sub–paragraph (4) until the dispute has been finally determined.
Commencement Information
I5Sch. 17 para. 75 in force at 1.1.2022, see art. 1
76.—(1) Subject to sub–paragraph (5) the undertaker must from the commencement of the construction of any specified work maintain in good repair and condition and free from obstruction any drainage work that is situated within the limits of deviation on land held by the undertaker for the purposes of or in connection with the specified work, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.E+W
(2) If any drainage work that the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the relevant drainage authority, the relevant drainage authority may by notice in writing require the undertaker to repair and restore the work, or any part of such work, or (if the undertaker so elects and the relevant drainage authority in writing consents, such consent not to be unreasonably withheld or delayed), to remove the work and restore the site to its former condition, to such extent and within such limits as the relevant drainage authority reasonably requires.
(3) If, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub–paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the relevant drainage authority may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the undertaker.
(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub–paragraph (2), the relevant drainage authority must not except in a case of emergency exercise the powers conferred by sub–paragraph (3) until the dispute has been finally determined.
(5) This paragraph does not apply to—
(a)drainage works that are vested in the relevant drainage authority or that the relevant drainage authority or another person is liable to maintain and is not prevented by this Order from so doing; and
(b)any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part.
Commencement Information
I6Sch. 17 para. 76 in force at 1.1.2022, see art. 1
77. If by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or the drainage work is otherwise damaged, the impairment or damage must be made good by the undertaker to the reasonable satisfaction of the relevant drainage authority and, if the undertaker fails to do so, the relevant drainage authority may make good the impairment or damage and recover from the undertaker the expense reasonably incurred by it in doing so.E+W
Commencement Information
I7Sch. 17 para. 77 in force at 1.1.2022, see art. 1
78. The undertaker must compensate the relevant drainage authority in respect of all costs, charges and expenses that the relevant drainage authority may reasonably incur, have to pay or may sustain—E+W
(a)in the examination or approval of plans under this Part;
(b)in inspecting the construction of any specified work or any protective works required by the relevant drainage authority under this Part; and
(c)in carrying out of any surveys or tests by the relevant drainage authority that are reasonably required in connection with the construction of the specified work.
Commencement Information
I8Sch. 17 para. 78 in force at 1.1.2022, see art. 1
79.—(1) Without limiting the other provisions of this Part, the undertaker must compensate the relevant drainage authority in respect of all claims, demands, proceedings, costs, damages, expenses or loss that may be made or taken against, recovered from or incurred by, the relevant drainage authority by reason of—E+W
(a)any damage to any drainage work so as to impair its efficiency for the purposes of flood defence;
(b)any raising or lowering of the water table in land adjoining the authorised development or any sewers, drains and watercourses;
(c)any flooding or increased flooding of any such land; and
(d)where the relevant drainage authority is the Environment Agency, inadequate water quality in any watercourse or other surface waters or in any groundwater, that is caused by the construction of any specified work by the undertaker or any act or omission of the undertaker, its contractors, agents or employees whilst engaged on the work.
(2) The relevant drainage authority must give to the undertaker reasonable notice of any such claim or demand, and no settlement or compromise may be made without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed.
Commencement Information
I9Sch. 17 para. 79 in force at 1.1.2022, see art. 1
80. The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved by the relevant drainage authority, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from any liability under this Part.E+W
Commencement Information
I10Sch. 17 para. 80 in force at 1.1.2022, see art. 1
81. Any dispute between the undertaker and the relevant drainage authority under this Part, if the parties agree, must be determined by arbitration under article 38 (arbitration), but otherwise must be determined by the Secretary of State for Environment, Food and Rural Affairs and [F1the Secretary of State for Energy Security and Net Zero] acting jointly on a reference to them by the undertaker or the relevant drainage authority, after notice in writing by one to the other.E+W
Textual Amendments
F1Words in Sch. 17 para. 81 substituted (3.5.2023) by The Secretaries of State for Energy Security and Net Zero, for Science, Innovation and Technology, for Business and Trade, and for Culture, Media and Sport and the Transfer of Functions (National Security and Investment Act 2021 etc) Order 2023 (S.I. 2023/424), art. 1(2), Sch. para. 76 (with art. 17)
Commencement Information
I11Sch. 17 para. 81 in force at 1.1.2022, see art. 1
1991 c. 59. Section 23 was amended by the Environment Act 1995 (c. 29), Schedule 22, paragraph 192 and the Flood and Water Management Act 2010 (c. 29), Schedule 2, paragraph 32.
See section 72(1).