OpenLegislation

The Incidental Flooding and Coastal Erosion (England) Order 2011

Draft. This instrument was laid in draft and may differ from the one made. Look for the made version under its title.

Draft 2011, ISBN 9780111515075

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Draft Order laid before Parliament under sections 38(9)(a) and 39(13)(a) of the Flood and Water Management Act 2010, for approval by resolution of each House of Parliament.

Coast Protection, England

Environmental Protection, England

Flood Risk Management, England

Made ***

Coming into force 1st December 2011

The Secretary of State, in exercise of the powers conferred by sections 38(8) and 39(12) of the Flood and Water Management Act 2010f1 makes the following Order.

A draft of this instrument has been laid before and approved by a resolution of each House of Parliament pursuant to sections 38(9)(a) and 39(13)(a) of that Act.

Annotations to the whole text

Footnotes

f1

2010 c. 29; the power is conferred by sections 38(8) and 39(12) of the Flood and Water Management Act 2010 on “the Minister”, and sections 38(10) and 39(14) of that Act define “the Minister” for the purposes of those sections.

Contents

  1. 1Citation, application, and commencement
  2. 2Interpretation
  3. 3Application of compulsory purchase provisions to section 38 of the 2010 Act
  4. 4Application of compulsory purchase provisions to section 39 of the 2010 Act
  5. 5Application of power of entry provisions to section 38 of the 2010 Act
  6. 6Application of power of entry provisions to section 39 of the 2010 Act
  7. 7Application of compensation provisions to section 38 of the 2010 Act
  8. 8Application of compensation provisions to section 39 of the 2010 Act
  9. Signature
  10. Explanatory note

1Citation, application, and commencement

This Order—

(a)

may be cited as the Incidental Flooding and Coastal Erosion (England) Order 2011;

(b)

applies in relation to England; and

(c)

comes into force on 1st December 2011.

2Interpretation

In this Order—

(a)

“the 1991 Act” means the Water Resources Act 1991f1; and

(b)

“the 2010 Act” means the Flood and Water Management Act 2010.

3Application of compulsory purchase provisions to section 38 of the 2010 Act

(1)

Subject to paragraphs (3) and (4), section 154 of the 1991 Actf1 applies for the purposes of section 38 of the 2010 Act as if the functions referred to in section 154(1) of the 1991 Act included functions under section 38 of the 2010 Act.

(2)

Section 157 of the 1991 Actf2 applies for the purposes of section 38 of the 2010 Act as if—

(a)

section 157(2)(b) were omitted;

(b)

the reference in section 157(6)(a) to an order under section 168 were omitted; and

(c)

section 157(6)(c) to (e) were omitted.

(3)

An authorisation to the Environment Agency under section 154 of the 1991 Act as applied by paragraph (1) may be given only for the purposes of enabling the United Kingdom to comply with its obligations under—

(a)

the Habitats Directive in relation to any necessary steps and measures under Article 6 of that Directive or policies under Article 10 of that Directive;

(b)

the Water Framework Directive in relation to any environmental objectives; or

(c)

the Wild Birds Directive in relation to any necessary measures under Articles 2, 3 or 4 of that Directive.

(4)

In this article—

(a)

“environmental objectives” has the same meaning as in the Water Framework Directive;

(b)

“the Habitats Directive” means Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and floraf3;

(c)

“the Water Framework Directive” means Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policyf4; and

(d)

“the Wild Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birdsf5.

4Application of compulsory purchase provisions to section 39 of the 2010 Act

Section 154 of the 1991 Act applies for the purposes of section 39 of the 2010 Act as if—

(a)

the words “A local authority” were substituted for the words “The Agency” where they first appear in section 154(1);

(b)

the functions referred to in section 154(1) included functions under section 39 of the 2010 Act;

(c)

the words “the local authority” were substituted for the words “the Agency”—

(i)

the second place they appear in section 154(1);

(ii)

where they appear in section 154(2), (3) and (4); and

(iii)

the second and third places they appear in section 154(6); and

(d)

“local authority” had the same meaning as in section 39(6) of the 2010 Act.

(2)

Section 157 of the 1991 Act applies for the purposes of section 39 of the 2010 Act as if—

(a)

the words “A local authority” were substituted for the words “The Agency” where they appear in section 157(1);

(b)

the words “the local authority” were substituted for the words “the Agency” where they appear in section 157(2)(a) and (6);

(c)

section 157(2)(b) were omitted;

(d)

the reference in section 157(6)(a) to an order under section 168 were omitted;

(e)

section 157(6)(c) to (e) were omitted; and

(f)

“local authority” had the same meaning as in section 39(6) of the 2010 Act.

5Application of power of entry provisions to section 38 of the 2010 Act

(1)

Section 170 of the 1991 Actf1 applies for the purposes of section 38 of the 2010 Act as if the reference in subsection (4) to any power conferred by any of the provisions of sections 159, 160, 162(2) and (3) and 163 of the 1991 Act were a reference to any power conferred by section 38 of the 2010 Act.

(2)

Section 171 of the 1991 Actf2 applies for the purposes of section 38 of the 2010 Act as if—

(a)

the functions referred to in section 171(2)(a) included functions under section 38 of the 2010 Act; and

(b)

section 171(2)(b) were omitted.

(3)

Schedule 20 to the 1991 Actf3 applies for the purposes of section 38 of the 2010 Act as if—

(a)

the references in paragraphs 1 and 2(1)(a) to powers conferred by sections 169 to 172 of the 1991 Act were references to powers conferred by section 170 or 171 of the 1991 Act as applied by this article;

(b)

the words “the premises in question are on agricultural land,” were inserted after “where” in paragraph 1(2);

(c)

the reference in paragraph 1(3) to the power conferred by section 170 of the 1991 Act were a reference to that power as applied by this article;

(d)

the reference in paragraph 2(4) to the power conferred by section 171 of the 1991 Act were a reference to that power as applied by this article;

(e)

references to a power to which Schedule 20 applies were references to any power conferred by section 170 or 171 of the 1991 Act as applied by this article, including a power exercisable by virtue of a warrant under Schedule 20;

(f)

paragraph 8(2) were omitted; and

(g)

“agricultural land” had the same meaning as in section 145 of the 1991 Act.

6Application of power of entry provisions to section 39 of the 2010 Act

(1)

Section 170 of the 1991 Act applies for the purposes of section 39 of the 2010 Act as if—

(a)

the words “a local authority” were substituted for the words “the Agency”—

(i)

where they appear in section 170(1); and

(ii)

where they first appear in section 170(3);

(b)

the words “the local authority” were substituted for the words “the Agency”—

(i)

where they appear in section 170(2); and

(ii)

the second place they appear in section 170(3);

(c)

the reference in subsection (4) to any power conferred by any of the provisions of sections 159, 160, 162(2) and (3) and 163 of the 1991 Act were a reference to any power conferred by section 39 of the 2010 Act; and

(d)

“local authority” had the same meaning as in section 39(6) of the 2010 Act.

(2)

Section 171 of the 1991 Act applies for the purposes of section 39 of the 2010 Act as if—

(a)

the words “a local authority” were substituted for the words “the Agency” where they appear in section 171(1);

(b)

the words “the local authority” were substituted for the words “the Agency” where they appear in section 171(2)(a) and (3)(c);

(c)

the functions referred to in section 171(2)(a) included functions under section 39 of the 2010 Act;

(d)

section 171(2)(b) were omitted; and

(e)

“local authority” had the same meaning as in section 39(6) of the 2010 Act.

(3)

Schedule 20 to the 1991 Act applies for the purposes of section 39 of the 2010 Act as if—

(a)

the references in paragraphs 1 and 2(1)(a) to powers conferred by sections 169 to 172 of the 1991 Act were references to powers conferred by section 170 or 171 of the 1991 Act as applied by this article;

(b)

the words “the premises in question are on agricultural land,” were inserted after “where” in paragraph 1(2);

(c)

the reference in paragraph 1(3) to the power conferred by section 170 of the 1991 Act were a reference to that power as applied by this article;

(d)

the reference in paragraph 2(4) to the power conferred by section 171 of the 1991 Act were a reference to that power as applied by this article;

(e)

references to a power to which Schedule 20 applies were references to any power conferred by section 170 or 171 of the 1991 Act as applied by this article, including a power exercisable by virtue of a warrant under Schedule 20;

(f)

the words “a local authority” were substituted for “the Agency” in paragraphs 6(3)(b) and 8;

(g)

paragraph 8(2) were omitted;

(h)

“agricultural land” had the same meaning as in section 145 of the 1991 Act; and

(i)

“local authority” had the same meaning as in section 39(6) of the 2010 Act.

7Application of compensation provisions to section 38 of the 2010 Act

Subparagraphs (1) and (2) of paragraph 5 of Schedule 21 to the 1991 Actf1 apply for the purposes of section 38 of the 2010 Act as if the reference to powers under section 165(1) to (3) of the 1991 Act were a reference to powers under section 38 of the 2010 Act.

8Application of compensation provisions to section 39 of the 2010 Act

Subparagraphs (1) and (2) of paragraph 5 of Schedule 21 to the 1991 Act apply for the purposes of section 39 of the 2010 Act as if—

(a)

the words “a local authority” were substituted for the words “the Agency” where they first appear;

(b)

the words “the local authority” were substituted for the words “the Agency” the second place they appear;

(c)

the reference to powers under section 165(1) to (3) of the 1991 Act were a reference to powers under section 39 of the 2010 Act; and

(d)

“local authority” had the same meaning as in section 39(6) of the 2010 Act.

Signature

Name

Parliamentary Under Secretary of State

Department for Environment, Food and Rural Affairs

Date

Explanatory note

(This note is not part of the Order)

This Order relates to the incidental flooding and coastal erosion works powers of the Environment Agency and local authorities under sections 38 and 39 respectively of the Flood and Water Management Act 2010 (c. 29). Those sections empower the Environment Agency and local authorities to carry out certain works in the interests of nature conservation, the preservation of cultural heritage or people’s enjoyment of the environment or of cultural heritage.

This Order applies the relevant provisions of the Water Resources Act 1991 (c. 57) relating to compulsory purchase, powers of entry, and compensation to the exercise of the powers under sections 38 and 39.

It also modifies the application of those provisions for the purposes of section 38 so that—

(a)

the Environment Agency may not exercise the powers of compulsory purchase except for the purpose of enabling the United Kingdom to comply with its obligations under certain named EU Directives;

(b)

the Environment Agency and local authorities must give 7 days’ notice before exercising the powers of entry in relation to agricultural land (except in an emergency).

An impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is available from the website of the Department for Environment, Food and Rural Affairs at www.defra.gov.uk.