Commentary Strategic supplies Section 39: Incidental flooding or coastal erosion: local authorities
388.This section allows a lead local flood authority, district council or internal drainage board to carry out works, under certain conditions that may or will cause flooding, an increase in the amount of water below the ground, or coastal erosion. These bodies are collectively defined as “local authorities” for the purpose of this section (subsection (6)) and that terminology is used in describing this section.
389.The conditions are that the local authority:
	considers that the works are either in the interest of nature conservation, the conservation or enhancement of the landscape, the preservation of cultural heritage or peoples’ enjoyment of the environment or cultural heritage;
	considers that the benefits of the works outweigh the harmful consequences as described in section 2(4)(a) to (d);
	has consulted the Environment Agency and, if the works affects a main river, gained its consent;
	has consulted any other local authority who may be affected and any other persons who own or occupy land that, in the opinion of the authority, is likely to be directly affected by the work.
390.Subsection (7) requires the local authority to have regard to the national flood and coastal erosion risk management strategies issued under sections 7 and 8 and any relevant guidance, and the local flood risk management strategy issued under section 9 or 10 for the area concerned as well as any guidance issued by the lead local flood authority for that area.
391.Subsection (8) allows the local authority to arrange for works carried out under this section to be done on its behalf by the Environment Agency or another local authority.
392.Subsection (9) states that the power in subsection (1) may be relied upon in combination with any existing powers under other legislation but the conditions on the use of power under subsection (1) do not restrict, limit or relate to what a local authority may do under other enactments.
393.Subsection (10) allows the Environment Agency to make grants to local authorities in England in respect of work under this section. Subsection (11) similarly allows Welsh Minsters to make grants to local authorities in Wales for works under this section. No such power is required in respect of giving grants to the Environment Agency in respect of works which it might undertake section 38 because the Secretary of State and the Welsh Ministers are already empowered under section 47 of the Environment Act 1995 to make grants to the Environment Agency of such amounts, and on such terms, as they think fit.
394.Subsection (12) requires the Minister to make an order applying compulsory purchase, powers of entry and compensation provisions of the Water Resources Act 1991 to this section. Subsection (13) requires that such an order must be made subject to the affirmative resolution procedure.
395.Subsection (14) defines “the Minister” for the purpose of this section as meaning the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.