Important New Guidance on Flood Risk in Scotland

Considering last year's flooding problems in Scotland caused by the snow melt, it is very topical that the Scottish Government is currently consulting on Guidance for SEPA, Scottish Water and the local authorities on fulfilling their responsibilities under the new Flood Risk Management (Scotland) Act 2009.

What is the Flood Risk Management (Scotland) Act 2009?

The Flood Risk Management (Scotland) Act 2009 (the Act) is a new piece of legislation implementing the EC Floods Directive which aims to reduce and manage the risk of flooding. The Act establishes a process for assessing and managing flood risks in Scotland by introducing a better system of coordination between the Scottish Government, SEPA, Scottish Water and local authorities. While current legislation covers only river and coastal flooding, the Act covers all sources of flooding including flooding from sewers. The Act is being brought into force in stages, with obligations to identify and assess areas at risk of flood being among the first to be brought into force.

Duties

The Act allocates responsibilities for assessing and managing ‘at risk’ areas to the Scottish Government, SEPA, Scottish Water and the local authorities. SEPA and the local authorities now have various powers of entry to land for carrying out their duties under the Act.

Planning Issues

The Act requires a flood risk assessment to be submitted with a planning application where the proposed development is likely to result in a material increase in the number of buildings at risk of being damaged by flooding. This requirement is expected to be brought into force shortly. Although this requirement for a flood risk assessment is new, there is an existing duty on planning authorities (under the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008) to consult SEPA in this situation, before making a decision on a planning application. In practice, many planning authorities already seek flood risk assessments in such situations.

Beware!

Secondary legislation will emerge over the next few months which will provide further detail on the implementation of the Act but meantime planning authorities should be aware of the imminent requirement that flood risk assessments must be submitted with planning applications where the proposed development is likely to result in a material increase in the number of buildings at risk of being damaged by flooding.

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