Commentary on provisions of the Act Part 5: Land drainage, flood defence, water resources and fisheries
These provisions contain protection for authorities (referred to as drainage authorities) which have functions in connection with land drainage, flood defence, fisheries and water resources. These bodies are the Environment Agency and the local drainage authorities (i.e. local authorities which are given drainage functions as lead local flood authorities as a result of the Flood and Water Management Act 2010 and internal drainage boards). Under these provisions protection is given to each drainage authority in relation to works affecting their functions. Where works authorised by the Act affect a main river, groundwater, water resources or fisheries, i.e. matters affecting the functions of the Environment Agency, the protection applies to the Environment Agency. Where works affect ordinary watercourses (i.e. watercourses which are not main rivers) or flood defence features for which a local drainage authority is responsible, the protection applies to the relevant local drainage authority.
	Paragraph 51 provides that arrangements set out in this Part are to apply unless the nominated undertaker and the drainage authority concerned agree otherwise. It explains which type of drainage authority has responsibility in relation to the different types of works and also provides, given the strategic role of the Environment Agency, for local drainage authorities to consult the Agency in exercising their functions and for the Agency to be able to issue model conditions.
	Paragraphs 52 and 53 provide for the drainage authority to approve plans of any specified works and in approving plans to be able to make reasonable requirements (including requiring the nominated undertaker to construct protective works at its own cost). Approval of plans under these provisions is not to be unreasonably withheld.
	Paragraph 54 deals with the construction of the works (and any protective works). It provides in particular for these to be constructed to the drainage authority’s reasonable satisfaction, for the drainage authority to have the right to inspect the construction and to require alteration or removal of the works where they have not been constructed in accordance with the requirements of this Part.
	Paragraph 55 provides for the flood defence works constructed under the powers of the Act or which is on land held by the nominated undertaker to be maintained to the reasonable satisfaction of the drainage authority and paragraph 56 requires the nominated undertaker to make good any impairment to the efficiency of drainage works for flood defences purposes or any other damage.
	Under both paragraphs 55 and 56 the drainage authority can take remedial action where the nominated undertaker fails to do so.
	Paragraph 57 requires the nominated undertaker to take all reasonably practicable measures to prevent interruption of the free passage of fish in any fishery and contains provision for the nominated undertaker to prevent or make good damage to fisheries (a fishery is defined as any waters containing fish and the fish within or migrating to or from such waters and the spawn, spawning grounds or food of such fish). The Environment Agency can take remedial action if the nominated undertaker fails to do so.
	Paragraphs 58 to 60 contain a general indemnity for the drainage authority in respect of claims against it arising from the construction of the specified works in respect of the drainage authority’s functions protected by this Part.
	Paragraph 61 addresses disputes arising under this Part and provides for these to be referred to arbitration (which would then be governed by the provisions of section 64).