Commentary Land Drainage Act 1991(LDA)
166.Paragraphs 25 to 39 concern amendments to the LDA.
167.Paragraph 26 repeals section 8 of the LDA, which allows the Environment Agency to exercise powers vested in internal drainage boards under sections 21 and 23 of that Act concurrently with the internal drainage board. Paragraph 27 repeals default powers of the Environment Agency under section 9(1) of the LDA insofar as they relate to flooding.
168.Paragraph 28 amends section 11 of the LDA which makes provision for the Environment Agency and internal drainage boards to enter into arrangements for the purposes of carrying out certain works and, in particular, for internal drainage boards to carry out and maintain drainage works on behalf of one another. This amendment provides for internal drainage boards to provide administrative, professional or technical services to one another by agreement. This would allow internal drainage boards to operate as consortia.
169.Paragraph 29 amends the LDA by adding a new section, 14A, after section 14. Section 14A gives lead local flood authorities powers to carry out flood risk management works provided that the authority considers this work to be desirable, having regard to the local flood risk management strategy for the area and it is for the purpose of managing a flood risk from surface run-off or groundwater (subsection (1)).
170.Subsections (2) and (3) of section 14A give internal drainage boards, district councils and lead local flood authorities (where there is no district council) powers to carry out flood risk management works in respect of ordinary watercourses, and the sea in their area where they consider this work to be desirable, having regard to the local flood risk management strategy for the area. In respect of works for the purpose of managing flood risk from the sea, the consent of the Environment Agency is required where those works are to improve existing works, construct or repair new works, maintain or restore natural processes or features, reduce or increase the level of water in a place, or alter or remove works.
171.These powers are wider than the existing powers in section 14 of the LDA and include anything done to: (a) maintain existing works, including cleansing, repairing or otherwise maintaining the efficiency of any existing watercourse or drainage work; (b) operate existing works; (c) improve existing works, including anything done to deepen, widen, straighten or otherwise improve any existing watercourse or remove or alter mill dams, weirs or other obstructions to watercourses, or to raise, widen or otherwise improve any drainage work; (d) construct or repair new works, which may include anything done to make any new watercourse or drainage work, improve a beach, dune or salt-marsh or erect machinery; (e) maintain or restore natural processes; (f) monitor, investigate or survey a location or a natural process; (g) reduce or increase the level of water in a place; (h) alter or remove any works.
172.These powers are subject to the same compensation, compulsory acquisition and powers of entry provisions as apply to the powers in section 14 of the LDA. The powers under section 14A are also subject to existing protections provided by the planning regime. This would be the main mechanism through which third parties might appeal against new works which might impact negatively upon them.
173.Paragraph 30, in repealing section 17 of the LDA, removes the direct supervisory capacity that the Environment Agency exercises over local authorities in the carrying out of their drainage works powers. Instead, the authorities are required to exercise their powers in accordance with the local flood risk management strategy.
174.Paragraph 31 amends section 21 of the LDA (which allows the internal drainage board or Environment Agency to take action to enforce obligations to maintain or repair any watercourse, bridge or other drainage work). The Environment Agency will no longer exercise this power in England or Wales. The internal drainage board (within its district) and otherwise the lead local flood authority for the area in question will exercise this power. The Environment Agency will continue to exercise this power in both England and Wales so far as it relates to main rivers under section 107(2) of the Water Resources Act 1991.
175.Paragraphs 32, 33 and 34 make various amendments to sections 23, 25 and 26 of the LDA.
176.Section 23 of the LDA, prior to this amendment, prohibits the construction of certain kinds of obstructions in ordinary watercourses without the prior consent of the drainage board (currently the Environment Agency or internal drainage board (for works within its district)). The structures which are caught by this section include culverts which are likely to affect the flow of water in the watercourse. The wording of this provision implies that it is possible to construct a culvert which does not affect the flow, and that such a culvert would not require consent. The amendment in paragraph 32(2) changes this to require that any new culvert must have consent since any culvert necessarily affects the flow of a watercourse.
177.Sub-paragraph (3) of paragraph 32 amends section 23 of the 1991 Act to remove the Environment Agency as the consenting authority for watercourses outside of an internal drainage district, and replace it with lead local flood authorities. Internal drainage boards will remain the consenting authority for watercourses within an internal drainage district.
178.Sub-paragraph (3) of paragraph 32 also amends section 23 to require lead local flood authorities and internal drainage boards to consult with the Environment Agency when they are consenting work that they are themselves proposing. This is to minimise the potential for conflict of interest. Lead local flood authorities and internal drainage boards must also have regard to any guidance provided by the Environment Agency on consenting.
179.Sub-paragraph (4) of paragraph 32 amends section 23 to change the procedure by which fees may be determined. Instead of fees being changed by Ministerial order, they will be changed in accordance with a charging scheme that is prescribed by order. Sub-paragraph (6) amends the meaning of the reference to “the drainage board concerned” used in sections 23 and 24 so that the Environment Agency’s role as a drainage board for watercourses outside of an internal drainage district is taken over by lead local flood authorities. Sub-paragraph (5) extends this amended meaning of “the drainage board concerned” to section 25. Sub-paragraph (7) applies the definition of “lead local flood authority” in the Act to the use of the term in LDA.
180.Paragraph 33 amends section 25 of the LDA (powers to require works for maintaining flow of watercourse) to give the powers of the Environment Agency to lead local flood authorities. Internal drainage boards retain their powers. Section 26, which deals with competing jurisdictions, is repealed by paragraph 34.
181.Paragraphs 35 and 36 amend sections 33 and 34 of the LDA. Section 33 provides for the Environment Agency and drainage boards to commute (with Ministerial consent) land drainage obligations not related to main rivers and section 34 makes provision for the financial consequences of commutation. The amendments to section 33 remove the Environment Agency’s power to commute obligations and provide that: (i) where the obligations relate to an area which forms part of an internal drainage district then the drainage board for the district will have the power; (ii) for any other area, a lead local flood authority will have the power. The amendments to section 34 are consequential to reflect the changes in section 33. Paragraph 37 omits subsection (4)(c), relating to sea flooding, from section 59 of the LDA leaving that section to apply in relation to grants for drainage works.
182.Paragraph 38 amends section 66 of the LDA which provides a power to make byelaws. These amendments extend the byelaw making power to the relevant authorities which are empowered to carry out works under section 14 of the LDA, as a result of other amendments made by this Act. The amendments also extend the purposes for which byelaws can be made from securing the efficient working of a drainage system; and regulating the effect on the environment of a drainage system, to: (a) securing the effectiveness of flood risk management works, with the meaning of section 14A of the LDA as inserted by the Act; and (b) securing the effectiveness of works done under section 38 or 39 of the Act.
183.Paragraph 39 introduces a definition of “culvert”, defining it as a covered channel or pipe designed to prevent the obstruction of a watercourse or drainage path by an artificial construction. There is no definition in current legislation.