i e AT 12 of 2013 FLOOD RISK MANAGEMENT ACT 2013

Transcription

1 i e AT 12 of 2013 FLOOD RISK MANAGEMENT ACT 2013

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3 Flood Risk Management At 2013 Index i e FLOOD RISK MANAGEMENT ACT 2013 Index Setion Page PART 1 OPENING PROVISIONS 7 DIVISION 1 INTRODUCTORY 7 1 Short title Commenement... 7 DIVISION 2 INTERPRETATION 7 SUBDIVISION 1 BASIC DEFINITIONS 7 3 Authority Flood and emergeny flooding event Risk, flood risk and serious flood risk Risk management, FRM and flood warning systems FRM works Waterourse SUBDIVISION 2 MISCELLANEOUS 10 9 Definitions generally Other interpretative provisions PART 2 AUTHORITY S FRM FUNCTIONS Core FRM funtions Requirement to onsider osts and benefits for works power Duty to onsider protetion, onservation and rereation PART 3 GENERAL PROVISIONS ABOUT FRM WORKS AND ABOUT WATERCOURSES 12 DIVISION 1 DESIGNATION Designation power Maps or reords for designation Consequenes of designation AT 12 of 2013 Page 3

4 Index Flood Risk Management At 2013 DIVISION 2 CONTROL OF ACTIVITIES RELATING TO FRM WORKS OR TO WATERCOURSES 13 SUBDIVISION 1 MAIN OFFENCES Wilful damage: designated FRM works or designated waterourse Unlawful interferene: designated FRM works or designated waterourse Unlawful interferene: any waterourse SUBDIVISION 2 WORKS CONSENTS Applying for and obtaining works onsent Offene: ontravention of ondition of works onsent SUBDIVISION 3 MISCELLANEOUS Emergeny defene PART 4 AUTHORITY S POWERS FOR FRM WORKS AND FOR WATERCOURSES 15 DIVISION 1 GENERAL POWERS Appliation of Powers Works powers Spoil from works Powers of entry Emergeny power DIVISION 2 SAFEGUARDS FOR THE EXERCISE OF GENERAL POWERS Notie of intention to exerise ertain general powers Compensation DIVISION 3 REMEDIAL POWERS Appliation of Division Power to give notie to remedy situation Reording of remedial ation notie in title register or deeds registry Remedial ation notie binds all owners and oupiers Alternative power to take emergeny ation Offene: ontravention of remedial ation notie Defene other than for original reipient Contravention: further remedies PART 5 OTHER POWERS Entry on land with warrant Aquisition of land Works and other servies for others Adoption of private FRM works Injuntions Approval of douments required under At Authorised persons General bye-law making power Page 4 AT 12 of 2013

5 Flood Risk Management At 2013 Index PART 6 LANDOWNERS: DRAINAGE ON OTHER LAND 26 DIVISION 1 APPROVAL FOR DRAINAGE Appliation of Division Request for approval Considering request and giving drainage approval Deed for drainage approval Registration and effet of drainage approval deeds DIVISION 2 MAINTENANCE OR REPLACEMENT Appliation of Division Maintenane obligation of responsible persons Entry power for maintenane obligation Remedy for ontravention of maintenane obligation When servient land owner may deal with approved drain DIVISION 3 MISCELLANEOUS Offene: obstrution of ertain drains or improvements PART 7 APPEALS Constitution of tribunal Appeal right Appeal nature and proedure Additional provisions for appeals about drainage approvals Further High Court appeal PART 8 GENERAL OFFENCES Obstruting those performing funtions Wilfully interfering with apparatus installed under At Giving false information Liability of offiers of body orporate PART 9 OTHER PROVISIONS 33 DIVISION 1 PROTECTIONS Appliation of Division Protetions DIVISION 2 MISCELLANEOUS Control of development Mineral rights Other obligations not generally affeted Meaning of maximum penalty followed by a stated penalty et Meaning of additional words (on information) or (summary) Tynwald proedures for statutory doument other than an ADO PART 10 SAVINGS AND TRANSITIONAL Definitions for Part AT 12 of 2013 Page 5

6 Index Flood Risk Management At Existing bridge or obstrution onsents Pending onsent requests Main rivers Matters under 1934 At about making drains or improvements PART 11 REPEALS AND AMENDMENTS 38 DIVISION 1 REPEALS Ats repealed DIVISION 2 AMENDMENTS Land Drainage and Boundaries At Loal Government Consolidation At Rating and Valuation At Housing At Short Titles At Land Registration At Loal Government At Highways At Wildlife At Building Control At Water At Tree Preservation At Sewerage At Tribunals At Rules of the High Court of Justie DIVISION 3 EXPIRY OF PART Expiry SCHEDULE 45 DEFINITIONS 45 ENDNOTES 49 TABLE OF LEGISLATION HISTORY 49 TABLE OF RENUMBERED PROVISIONS 49 TABLE OF ENDNOTE REFERENCES 49 Page 6 AT 12 of 2013

7 Setion 1 Flood Risk Management At 2013 i e Signed in Tynwald: 15 Otober 2013 Reeived Royal Assent: 15 Otober 2013 Announed to Tynwald: 15 Otober 2013 AN ACT to make provision about flood risk management and land drainage; to repeal ertain Ats about those matters; to amend ertain Ats about water and sewerage; and for onneted purposes. BE IT ENACTED by the Queen s Most Exellent Majesty, by and with the advie and onsent of the Counil and Keys in Tynwald assembled, and by the authority of the same, as follows: PART 1 OPENING PROVISIONS DIVISION 1 INTRODUCTORY 1 Short title The short title of this At is the Flood Risk Management At Commenement This At, other than this setion and setion 1, ommenes on the day the Authority by order appoints and different days may be appointed for different provisions and for different purposes. An order under subsetion may make transitional and saving provisions the Authority onsiders neessary or expedient. DIVISION 2 INTERPRETATION SUBDIVISION 1 BASIC DEFINITIONS 3 Authority The Authority is the Isle of Man Water and Sewerage Authority established under the Water At AT 12 of 2013 Page 7

8 Flood Risk Management At 2013 Setion 4 4 Flood and emergeny flooding event A flood inludes a situation in whih land not normally overed by water beomes overed by water. It does not matter what aused the overage or whether there were a ombination of auses. Examples of possible flood auses: Heavy rainfall, inland water overflowing, the banks of a waterourse being breahed, a dam overflowing or being breahed, the sea or tidal water, groundwater and surfae run-off and the apaity of a sewer being exeeded. An emergeny flooding event means an atual flood or an event or situation that auses or reates an immediate flood risk with a potential harmful onsequene mentioned in setion 5; or an immediate and material inrease in flood risk. 5 Risk, flood risk and serious flood risk (4) A risk is a risk relating to an ourrene assessed and expressed (as for insurane and sientifi purposes) as a ombination of the probability of the ourrene and its potential harmful onsequenes. The potential harmful onsequenes to be onsidered in assessing risk inlude, in partiular, onsequenes for () (d) (e) human health; the soial and eonomi welfare of individuals and ommunities; land; infrastruture; and the environment (inluding ultural heritage). A flood risk is the risk of a flood. A serious flood risk is a flood risk with a potential harmful onsequene that the Authority onsiders suffiiently serious to warrant performing its funtions. 6 Risk management, FRM and flood warning systems Risk management is taking ation to do any or all of the following (i) (ii) (iii) analyse, assess or redue a risk; redue a omponent in assessing a risk; or alter the balane of fators ombined in assessing a risk; or any other ation relating to a risk or a fator relevant to assessing a risk. Page 8 AT 12 of 2013

9 Setion 7 Flood Risk Management At 2013 (4) (5) In partiular, risk management inludes doing anything that inreases the probability of an event, but redues or alters its potential onsequenes; or inreases the probability of an event ourring at one time or in one plae but redues the probability of its ourrene at another time or in another plae. FRM (an abbreviation of flood risk management) is risk management in the ontext of flood risk. Examples: Land drainage, defending land against flooding (from any soure and relating to any flood risk) and providing flood warning systems. Flood warning systems are systems to warn of a danger of flooding under whih information onerning any or all of the following is obtained and transmitted () rainfall, as measured at a partiular plae within a partiular period; the level or flow of tidal water or inland water at a partiular time; or any other matter that the Authority onsiders relevant. For subsetion (4), the systems may be manual or automati and with or without providing for alulations based on the information or for the transmission of the results of any alulations. 7 FRM works FRM works are an ation for FRM, of any nature or desription (a relevant ation ); Examples of a relevant ation: 1. Providing new or improved flood protetion. 2. Maintaining or restoring an area for FRM beause of the effets of erosion or a natural proess relating to water. 3. Inreasing or reduing an area s water level for FRM. () a thing resulting from a relevant ation taken or that will result from a relevant ation if it is taken; and Examples of things that may result from taking a relevant ation: Sea walls, pumping stations, embankments, flood walls and sluie gates. land proposed to be used for a flood storage area. To remove any doubt, FRM works do not inlude an ation or thing onerning the funtions of the sewerage authority. In this setion, an ation inludes a proposed ation. AT 12 of 2013 Page 9

10 Flood Risk Management At 2013 Setion 8 8 Waterourse A waterourse is a river, stream, brook, dith, ut, ulvert, dyke, sluie or a land drain or passage through whih water flows (a primary waterourse ); and a lake, pond or other area of water flowing into a primary waterourse. However, the sewerage authority s sewerage system under the Sewerage At 1999 is not a waterourse. To avoid any doubt, a referene to a waterourse generally is a referene to both a designated and a non-designated waterourse. SUBDIVISION 2 MISCELLANEOUS 9 Definitions generally The Shedule ontains definitions for this At. 10 Other interpretative provisions In this At, unless the ontext otherwise requires () (d) (e) a referene to a funtion inludes a power; a referene to performing a funtion inludes a referene to exerising a power; a referene to the performane of a funtion by the Authority or any other person or body is a referene to the performane of their funtions under this At; a provision about a funtion of the Authority or any other person or body does not limit their other funtions; and a referene to the Authority performing a funtion inludes a referene to any authorised person performing the funtion for the Authority. An example or note in or to a provision of this At is part of this At and of the provision. An example of the operation of a provision is not exhaustive and may extend, but does not limit, the provision s meaning. PART 2 AUTHORITY S FRM FUNCTIONS 11 Core FRM funtions The Authority Page 10 AT 12 of 2013

11 Setion 12 Flood Risk Management At 2013 must administer this At and monitor and enfore ompliane with it; and is responsible for, and must generally supervise, all matters relating to FRM. To perform those funtions, the Authority may do any or all of the following () (d) (e) (f) (g) (h) (i) prepare and publish FRM strategies; arry out surveys to identify what FRM works are required; prepare and publish FRM plans stating FRM works that the Authority proposes to arry out; provide and operate flood warning systems; protet the Island from flood risks by providing, maintaining, improving or extending FRM works and waterourses; monitor both FRM works and waterourses and systems for them; provide, install, operate and maintain apparatus required for the monitoring of systems; prepare, gather and publish other information it onsiders relevant onerning FRM; or arry out researh and provide eduation and guidane onerning FRM. 12 Requirement to onsider osts and benefits for works power This setion applies if the Authority is deiding whether or not to exerise, or the way in whih to exerise, a works power (the proposed ation ), other than the arrying out of maintenane. The Authority must onsider the likely osts and benefits of the proposed ation, unless doing so would be unreasonable in view of the nature or purpose of the proposed ation or the irumstanes. The Authority may, but need not, perform a ost benefit analysis in onsidering the likely osts and benefits. 13 Duty to onsider protetion, onservation and rereation In performing its funtions, the Authority has the duty (the general duty ) to onsider the desirability of () proteting and onserving land, buildings, sites and objets of national, arhitetural, arhaeologial or histori interest; onserving and enhaning the Island s natural beauty and amenity; onserving wildlife, flora and fauna; and AT 12 of 2013 Page 11

12 Flood Risk Management At 2013 Setion 14 (d) preserving the use of land and water in the Island for rereational purposes (the rereation duty ). However, the general duty does not apply to the extent it is unreasonable, in view of the nature or purpose of the funtions or the irumstanes, for the Authority to omply with it. In deiding what steps to take to perform the rereation duty, the Authority must have regard to the needs of persons who are hronially sik or disabled. PART 3 GENERAL PROVISIONS ABOUT FRM WORKS AND ABOUT WATERCOURSES DIVISION 1 DESIGNATION 14 Designation power The Authority may, by order, designate existing or proposed FRM works or a waterourse as one of general signifiane for FRM. However, before making the order, the Authority must onsult the persons and bodies it onsiders are likely to be affeted by the order. In this setion, proposed means proposed to be arried out or made by the Authority. 15 Maps or reords for designation (4) (5) The Authority must make, and have available for inspetion, a map or reord (a designation reord ) showing eah designated FRM works or designated waterourse and the subjet land. The Authority may keep designation reords in any form that allows legible evidene of their ontents to be produed. A opy of a designation reord ertified by the Authority as a true opy is suffiient evidene that the FRM works or waterourse shown has been designated, unless the ontrary is proved. The Authority must apply to the Chief Registrar to register a opy of eah designation reord in the title register if the subjet land is registered; or otherwise, in the deeds registry and, for that purpose, the opy is taken to be a deed affeting the land. However, a failure to so register does not affet the validity of the designation; or Page 12 AT 12 of 2013

13 Setion 16 Flood Risk Management At 2013 (6) if the subjet land is registered, the designation from being a Shedule 5 burden on the land. In this setion, subjet land, for a designation, means the land the subjet of the designation. 16 Consequenes of designation The Authority may provide, maintain, improve or extend designated FRM works or designated waterourses to protet the Island from flood risks. The Authority may provide, maintain, improve or extend nondesignated FRM works or non-designated waterourses only if it onsiders there are irumstanes posing a serious flood risk; or to mitigate the onsequenes of flooding. DIVISION 2 CONTROL OF ACTIVITIES RELATING TO FRM WORKS OR TO WATERCOURSES SUBDIVISION 1 MAIN OFFENCES 17 Wilful damage: designated FRM works or designated waterourse A person must not wilfully damage designated FRM works or a designated waterourse. Maximum penalty (on information) 2 years ustody or a fine. Maximum penalty (summary) 5, Unlawful interferene: designated FRM works or designated waterourse A person must not unlawfully interfere with designated FRM works or a designated waterourse. Maximum penalty (on information) 2 years ustody or a fine. Maximum penalty (summary) 5,000. A person unlawfully interferes with designated FRM works or a designated waterourse if the person does any of the following without the Authority s written onsent (a works onsent ) arries out works to the designated FRM works or designated waterourse; onstruts, lays, alters, demolishes or removes (i) a building or other struture on or over, or within 9.1 m of, the designated FRM works or designated waterourse; or AT 12 of 2013 Page 13

14 Flood Risk Management At 2013 Setion 19 () (ii) an apparatus on or over, or within 9.1 m of, the designated FRM works or designated waterourse; or reates an obstrution that affets, or may affet, the maintenane of, or aess to, the designated FRM works or designated waterourse. The Authority may, by order, amend subsetion by varying either distane stated in that paragraph. 19 Unlawful interferene: any waterourse A person must not unlawfully interfere with a waterourse. Maximum penalty (on information) a fine. Maximum penalty (summary) 5,000. A person unlawfully interferes with a waterourse if the person does any of the following without the Authority s written onsent (also a works onsent ) () (d) (e) (f) erets a dam, weir or other like obstrution (an obstrution ) to the waterourse s flow (the flow ); raises or otherwise alters an obstrution; erets a bridge, ulvert, pipe or diversion sluie likely to affet the flow; alters a bridge, ulvert, pipe or diversion sluie in a way likely to affet the flow; otherwise diverts the waterourse; or arries out any other works that materially affet, or may materially affet, the flow, other than works to maintain the waterourse s ondition. SUBDIVISION 2 WORKS CONSENTS 20 Applying for and obtaining works onsent A person may apply to the Authority for a works onsent. The appliation must be made in the form required under setion 43 (if any) and in the way direted by the Authority; and aompanied by the presribed fee. Also, the Authority may require (a details requirement ) the appliant to give it plans and speifiations and other details of any work or matter for whih the onsent is sought; and Page 14 AT 12 of 2013

15 Setion 21 Flood Risk Management At 2013 (4) (5) (6) (7) any supplemental information the Authority requires. The Authority must not unreasonably refuse the onsent or delay its deiding of the appliation. For subsetion (4), it is reasonable for the Authority to refuse or delay while the appliant ontinues to ontravene a details requirement. The Authority may give the onsent unonditionally or impose onditions on it as stated in its deision. If the Authority deides to refuse the onsent or impose a ondition to whih the appliant has not agreed in writing, it must give the appliant an appeal notie about the deision. 21 Offene: ontravention of ondition of works onsent The reipient of a works onsent must not ontravene a ondition of the onsent. Maximum penalty (on information) a fine. Maximum penalty (summary) 5,000. SUBDIVISION 3 MISCELLANEOUS 22 Emergeny defene This setion applies to a proeeding for an offene against this Division, other than setion 17 (wilful damage: designated FRM works or designated waterourse). It is a defene for the defendant to prove the at that onstituted the offene was reasonably done in an emergeny; and the defendant informed the Authority of the doing of the at as soon as pratiable after it happened. PART 4 AUTHORITY S POWERS FOR FRM WORKS AND FOR WATERCOURSES DIVISION 1 GENERAL POWERS 23 Appliation of Powers The exerise of the Authority s powers under this Division (other than an emergeny power) is subjet to Division 2. Eah of the powers, other than an emergeny power, is a general power. AT 12 of 2013 Page 15

16 Flood Risk Management At 2013 Setion Works powers (4) For non-designated FRM works or non-designated waterourses, the powers under this setion may be exerised only if the Authority onsiders there are irumstanes posing a serious flood risk; or to mitigate damage aused by flooding. The Authority may maintain or improve existing FRM works or existing waterourses; () make new FRM works or new waterourses; and alter or remove works or do anything else for a purpose onneted with FRM. The Authority may arry out FRM works (above and below the lowwater mark) to defend land or people against the sea or tidal water. The Authority may arry out works or do anything else in the sea or in an estuary it onsiders neessary to seure an adequate outfall for a river. 25 Spoil from works (4) (5) Subjet to subsetions and (4), the Authority may do any or all of the following (eah a spoils power ) appropriate and dispose of shingle, sand, lay, gravel, stone, rok or other matter removed ( works spoil ) in exerising a works power; or for works to a waterourse, deposit works spoil on (i) (ii) the banks of the waterourse; or a width of land (of no more than 5 m) adjoining the waterourse. The Authority may exerise a spoils power without being required to obtain a lease, liene or permission under the Minerals At 1986 or other statutory provision; or pay for the appropriation or disposal or any royalty (or make a similar payment). The Authority may sell works spoil only with the approval of the Department of Eonomi Development. The spoils powers do not authorise the depositing of removed matter if doing so would onstitute a statutory nuisane within the meaning of setion 1 of the Publi Health At The Authority may, by order, amend subsetion (ii) by varying the width stated in that subparagraph. Page 16 AT 12 of 2013

17 Setion 26 Flood Risk Management At Powers of entry In performing its funtions, the Authority may, at any reasonable hour or in an emergeny, enter on land (the entry power ) with heavy equipment if it onsiders doing so is neessary or expedient to do any or all of the following () (d) (e) (f) inspet the land; take or arry out any measurements, surveys, tests, investigations, experimental borings or photographs on the land; onstrut, maintain, operate or improve any flood warning systems, monitoring equipment or other apparatus on the land; take or remove from the land, for analysis, samples of any substane, artile or other thing found there; take or remove from the land, for the purposes of evidene in any ivil or riminal proeedings under or onnetion with this At, any substane, artile or other thing; or obtain aess to any other land. However, the entry power may be exerised only if there are reasonable grounds for doing so; and in a way that is proportionate and otherwise reasonable. Also, if the entry is to unoupied land, the Authority must ensure the land is left seured as effetually as when it was first entered. 27 Emergeny power If the Authority onsiders there is, or will be, an emergeny flooding event, it may take any steps (eah an emergeny power ) it onsiders appropriate to prevent or ontrol the flood; or redue or mitigate the effets of, or harmful onsequenes arising beause of, the flood. Examples of steps that may be appropriate: 1. Entering on any land, with heavy equipment. 2. Diverting water to a nearby waterourse. 3. Liaising with the polie for a onstable in uniform to exerise powers under setion 40 of the Road Traffi At 1985 (power of polie to stop vehiles et). 4. Issuing sandbags or other items to ontrol or divert water flow. 5. Ereting temporary FRM works. 6. Requiring persons to evauate properties. 7. Ereting temporary bridges. 8. Giving the publi advie or assistane about the flood or the onsequenes. AT 12 of 2013 Page 17

18 Flood Risk Management At 2013 Setion 28 (4) (5) (6) An emergeny power may be exerised with reasonably neessary fore and without the onsent of the owner or oupier of the land onerned. The Authority may make arrangements with a publi body (the empowered body ) for the body to exerise the emergeny power for, or jointly with, the authority. The arrangements may be made only by a written agreement between the Authority and the empowered body or another publi body with power to enter into agreements for the empowered body. The empowered body must give the Authority and every other publi body exerising an emergeny power the help the authority onsiders reasonably neessary to allow them to perform its funtions under this setion. In this setion, publi body inludes () (d) (e) (f) (g) the Isle of Man Constabulary; the Isle of Man Fire and Resue Servie; the Isle of Man Ambulane and Paramedi Servie; a Department or Statutory Board; a body with a member whose appointment requires Tynwald approval; a loal authority; and any person holding a publi offie. DIVISION 2 SAFEGUARDS FOR THE EXERCISE OF GENERAL POWERS 28 Notie of intention to exerise ertain general powers The Authority must serve a notie of its intention to exerise a general power on eah owner or oupier of the land onerned. The notie must be served at least 21 days before exerising the power; and inlude the details of any works the Authority proposes to arry out in onnetion with the exerise of the power. The Authority need not omply with subsetion () in an emergeny; to maintain works if the maintenane does not involve entering land with heavy equipment; or to exerise the entry power under setion 26 if the Authority proposes to enter land without heavy equipment. Page 18 AT 12 of 2013

19 Setion 29 Flood Risk Management At Compensation (4) (5) The Authority must ompensate a person who sustains damage beause of the exerise of a general power. However ompensation is not payable (i) (ii) to the extent that the damage is attributable to the person s fault; or if the at or omission the subjet of the exerise of the power would have been ationable by the person if it had taken plae other than in the exerise of statutory powers; for subsetion, the person sustains damage only if () (i) (ii) the value of the person s interest in land is depreiated (the depreiation ); or the person s enjoyment of land is disturbed; and the person may laim the ompensation only within 3 years after (i) (ii) if the power was exerised during the arrying out of works, their substantial ompletion; or otherwise, the exerise of the power. A dispute about the person s entitlement to the ompensation or its amount must be referred to and deided by an arbitrator (the appointed arbitrator ) appointed by agreement between the Authority and the person; or in default of agreement, under setion 3 of the Aquisition of Land At Part III of that At applies to the deiding of the dispute so far as the Part is apable of being applied in the irumstanes; and as if a referene in the Part to the arbitrator were a referene to the appointed arbitrator. In assessing the depreiation, aount must be taken of any enhanement of the land s value beause of the exerise of the power. DIVISION 3 REMEDIAL POWERS 30 Appliation of Division This Division applies if an authorised person is of the opinion that a person (the responsible person ) has done any of the following AT 12 of 2013 Page 19

20 Flood Risk Management At 2013 Setion 31 (i) (ii) (iii) (iv) (v) aused, or knowingly permitted the ausing of, damage to designated FRM works or a designated waterourse; failed to properly maintain the ondition of nondesignated FRM works or a non-designated waterourse whih failure aused, or may ause, a material inrease in flood risk; aused, or knowingly permitted the ausing of, a waterourse to be in a ondition that impedes, or prevents the improvement of, the drainage of any land; impeded, or allowed the impeding of, a waterourse s flow and the impediment has aused, or may ause, a material inrease in flood risk; or otherwise failed to take reasonable steps to prevent a material inrease in flood risk arising from FRM works or a waterourse over whih the person has ontrol; or done, or failed to do something that onstitutes an offene against Part 3, Division 2 (ontrol of ativities relating to FRM works or to waterourses). This Division applies whether or not the responsible person has been harged with, or onvited of, an offene relating to any of the matters mentioned in subsetion (the situation ). 31 Power to give notie to remedy situation The authorised person may give the responsible person a notie (a remedial ation notie ) requiring the reipient to remedy or mitigate the effets of the situation (the objetive ). Example: If the situation is an offene against Part 3, Division 2, the notie may require the reipient to restore the FRM works or waterourse onerned to its ondition immediately before the situation arose, if it is pratiable to do so. The notie must state (i) its reipient, the FRM works or waterourse onerned and the land to whih the notie applies (the relevant land ); (ii) the opinion mentioned in setion 30; (iii) (iv) the reasons for the opinion; and that the reipient must take steps to ahieve the objetive within a stated reasonable period; and inlude, or be aompanied by, an appeal notie about the deision to give the notie. The notie may, but need not, state reasonably pratiable steps the authorised person believes will ahieve the objetive. Page 20 AT 12 of 2013

21 Setion 32 Flood Risk Management At 2013 (4) The steps may be stated (and the reipient may take them) even though they are prohibited under bye-laws under setion Reording of remedial ation notie in title register or deeds registry The Authority may apply to the Chief Registrar to register a opy of a remedial ation notie in the title register, if the relevant land is registered; or otherwise, in the deeds registry and, for that purpose, the opy is taken to be a deed affeting the relevant land. However, a failure to so register does not affet the validity of the notie or the giving of the notie; and if the land is registered, the notie being a Shedule 5 burden on the land. 33 Remedial ation notie binds all owners and oupiers Unless it is withdrawn, a remedial ation notie binds any person who from time to time owns or oupies the relevant land. A referene in this At to the reipient of the notie is taken to inlude a referene to any person bound by it under subsetion, jointly and severally with its reipient as stated in the notie (its original reipient ). 34 Alternative power to take emergeny ation If the authorised person onsiders an emergeny flooding event has arisen beause of the situation, the Authority may take ation to ahieve the objetive without giving any remedial ation notie. The Authority may give the responsible person a notie (the ost reovery notie ) requiring the responsible person to pay its reasonable osts inurred in taking the ation. If the responsible person does not omply with the ost reovery notie, the Authority may reover the osts from the responsible person as a debt. 35 Offene: ontravention of remedial ation notie The reipient of a remedial ation notie must not ontravene the notie. Maximum penalty (on information) a fine. Maximum penalty (summary) 5,000. AT 12 of 2013 Page 21

22 Flood Risk Management At 2013 Setion Defene other than for original reipient This setion applies to proeedings for an offene under setion 35 against a person other than the original reipient of the remedial ation notie in question. It is a defene for the defendant to prove that the defendant did not know of the notie; and took all reasonable steps to find out whether any remedial ation notie had been given for the relevant land. In this setion, reasonable steps inludes an appropriate searh of the land registry if the relevant land is registered, or, if not, the deeds registry. 37 Contravention: further remedies (4) This setion applies if the Authority onsiders the reipient of a remedial ation notie has ontravened the notie (whether or not it onsiders the defene under setion 36 applies to a person other than its original reipient). The Authority may take ation it onsiders appropriate to ahieve the objetive; and give the reipient a further notie (the ost reovery notie ) requiring the reipient to pay the osts it reasonably inurred in taking the ation. If the remedial ation notie and the ost reovery notie have both been ontravened, the Authority may reover the osts from the reipient as a debt. The giving of, or ompliane with, the ost reovery notie does not stop a proseution for an offene for a ontravention of the remedial ation notie. PART 5 OTHER POWERS 38 Entry on land with warrant A justie of the peae may, on the Authority s appliation, issue a warrant to enter stated land if satisfied on oath that there are reasonable grounds for the Authority to exerise a power for the land. The warrant authorises the Authority, by any authorised person to () enter the land; be aompanied by any person stated in the warrant; exerise the power there; and Page 22 AT 12 of 2013

23 Setion 39 Flood Risk Management At 2013 (d) use fore that is reasonably neessary to exerise the power. The warrant ontinues in fore until the earlier of the following the power is exerised; or the end of any period stated in the warrant for it to expire. 39 Aquisition of land (4) (5) If it appears to the Authority that any land should be aquired to give effet to this At, it may aquire the land by agreement with the land s owner; or ompulsory aquisition, for the publi (the ompulsory power ). The Aquisition of Land At 1984 applies to the ompulsory power and the Authority is an aquiring authority under that At for the aquisition. However, subsetion (4) applies if the arbitrator appointed under that At is satisfied that the land s value has been, or will be, inreased beause of the spending, or proposed spending, of publi money in onnetion with the purpose of the aquisition ( the expense ). The arbitrator must set-off against the value used to assess the ompensation any inrease in the value attributable to the expense. The ompulsory power inludes the power to aquire any interest in land or a right on or over land by the reation of a new interest or right; or extinguish or modify any interest in land or right on or over land. 40 Works and other servies for others To perform its funtions, the Authority may by agreement (i) (ii) (iii) provide servies to other persons; fix the amount payable for the servies; and reover from those reeiving the servies an amount so fixed, when it beomes payable; and engage a person as a ontrator, on terms that the Authority thinks fit to perform a funtion or servie for it. If, under this At, the Authority is required to give a person data or information, it may reover from the person as a debt its osts reasonably inurred in so doing. In this setion, provide servies means arrying out or providing works, failities or materials and giving data or information. AT 12 of 2013 Page 23

24 Flood Risk Management At 2013 Setion Adoption of private FRM works (4) The Authority may make an agreement as follows (a designation agreement ) an agreement with a person arrying out, or proposing to arry out, private FRM works (the agreed works ), to designate the agreed works (i) (ii) (iii) when the agreed works have been arried out; when some future event happens; or on a stated day; or an agreement with the owner of private FRM works already onstruted (also the agreed works ) to designate them. A designation agreement is enforeable against the Authority by the owner or oupier of any land served by the agreed works (even though the owner or oupier may not be a party to the agreement). A designation agreement may provide that the Authority may if the agreed works have not been satisfatorily onstruted, arry out works ( remedial works ) to remedy any failure to onstrut the agreed works under the agreement; arry out works ( on-going works ) to maintain or improve the agreed works; () reover from another party to the agreement (i) (ii) if paragraph applies, osts it reasonably inurs in arrying out remedial works; or an agreed amount for the antiipated osts it reasonably expets to inur in arrying out on-going works. A designation agreement may also provide for seurity for the osts or for an amount mentioned in subsetion (). 42 Injuntions The High Court may grant an injuntion to ompel ompliane with this At or a remedial ation notie; or restrain an apprehended ontravention of this At. However, the injuntion may be granted only on the appliation of the Authority; or a person who is, or is likely to be, adversely affeted by the ontravention or apprehended ontravention in question. Subsetion does not relieve a person from riminal liability inurred beause of an at or omission or limit any of the Authority s other remedies relating to ats or omissions. Page 24 AT 12 of 2013

25 Setion 43 Flood Risk Management At Approval of douments required under At The Authority may publish a notie approving any form, statement or other doument required for a purpose under this At. 44 Authorised persons (4) (5) The Authority may, by notie, appoint a person as follows as an authorised person to perform its funtions () a person employed by it or a Department or Statutory Board; a person engaged by it to arry out work or perform another funtion for it (a ontrator ); or a diretor, partner or manager or other responsible employee of a ontrator. An authorised person holds that offie subjet to any presribed onditions stated in the person s notie of appointment or in a notie from the Authority to the person. An authorised person who exerises, or proposes to exerise, a power in relation to another person must do any or all of the following if the other person asks () state the authorised person s name; state the power in question; or produe evidene of the authorised person s authority to exerise the power. In performing a funtion (inluding a power under a warrant under setion 38), an authorised person may be aompanied by any of the following that are reasonably neessary or expedient to perform the funtion an assistant, adviser or other person; or vehiles, equipment and materials. A person mentioned in subsetion (4) may perform any of the authorised person s funtions, but only under the authorised person s supervision. 45 General bye-law making power The Authority may make bye-laws providing for any matter it onsiders neessary or expedient to seure the effiient working of the Island s FRM system; or otherwise to give effet to this At. Also, bye-laws may make provision about the performane of any of the Authority s funtions; AT 12 of 2013 Page 25

26 Flood Risk Management At 2013 Setion 46 () (d) (e) (f) (g) about the operation of any provision of this At; that a ontravention of the bye-laws is an offene with a maximum penalty (summary) of 5,000 or less; that a person may exerise a disretion about a matter provided for under the bye-laws; requiring ompliane with standards; adopting praties reommended or stated from time to time (whether before or after the making of the bye-laws) by a stated person; or about onsequential, inidental, supplementary and transitional matters the Authority onsiders to be neessary or expedient. If bye-laws do not fix a penalty for an offene, the maximum penalty (summary) for the offene is 5,000. PART 6 LANDOWNERS: DRAINAGE ON OTHER LAND DIVISION 1 APPROVAL FOR DRAINAGE 46 Appliation of Division This Division applies if a person ( the proposer ) with an interest in land (the dominant land ) wishes to drain the land; and for that purpose, the proposer intends to make or improve a drain on other land (the servient land ) owned by another person ( the servient landowner ). However, this Division does not apply to the making or improvement of a drain by the sewerage authority. The proposed drainage or improvement is the drainage. 47 Request for approval The proposer may, by notie, ask the servient landowner for approval (a drainage approval ) to make or improve the drain on the servient land. The notie must state the proposer s name and address; a desription, by referene to a map, of all parts of (i) the dominant land that the proposer wishes to drain; and (ii) the servient land affeted by the drainage; () the nature of the proposer s interest in the dominant land; (d) the use, or proposed use, of the dominant land; Page 26 AT 12 of 2013

27 Setion 48 Flood Risk Management At 2013 (e) (f) (g) (h) (i) (j) (k) details of the drainage, by referene to the map; whether the drainage is to be a dith or pipe, and its depth, route, size and outfall; if the drainage is a pipe, its omposition; when works for the drainage are proposed to start and end; the proposed means of aess for the works; the type of any mahinery proposed to be used for the works; proposals to protet or remedy any damage to the servient land and any person on it while the works are being arried out; Examples: Temporary fening and aommodation works, details of soil disposal and details of how damage to fenes, hedges and walls will be fixed. (l) (m) (n) the name and address of any ontrator that the proposer proposes to engage to arry out the works; the amount or other details of ompensation (if any) that the proposer offers the following for the drainage (i) (ii) the servient landowner; and any other person with an interest in, or who oupies, the servient land (an interested person ); and any other presribed matter. The sale of the map must be at least 1:10, Considering request and giving drainage approval The servient landowner must onsider and deide whether to give, by notie to the proposer (an approval notie ), the drainage approval and agree to partiular terms ( ompensation terms ) about any ompensation for the servient landowner and any interested person; or refuse to give the drainage approval. However, if there is any interested person, the servient landowner may give an approval notie only if the interested person has been given a opy of the request; and the interested person has given the proposer and the servient landowner a notie agreeing to the ompensation terms or agreeing not to be ompensated. If the deision is to refuse to give the drainage approval or to agree to ompensation terms, the servient landowner must give the proposer an appeal notie about the deision. Note: AT 12 of 2013 Page 27

28 Flood Risk Management At 2013 Setion 49 For appeals against the refusal, see Part 7 and setion 60 (additional provisions for appeals about drainage approvals). (4) (5) The servient landowner is taken to have refused to give the approval if a month has passed sine the servient landowner reeived the request; and the landowner has not given the proposer an approval notie. The approval and the ompensation terms bind the proposer and the servient landowner. 49 Deed for drainage approval If the servient landowner gives the drainage approval and agrees to partiular ompensation terms, the proposer and the servient landowner may enter into a deed evidening those matters (a drainage approval deed ). The deed must inlude a map showing the position of the drainage. 50 Registration and effet of drainage approval deeds All parties to a drainage approval deed must ensure an appliation is made to the Chief Registrar to register the deed if the servient land is registered, in the title register; or otherwise, in the deeds registry and, for that purpose, the deed is taken to be a deed affeting the servient land. Despite the land registration At and the deeds registration At, on the registration, the deed binds any person who from time to time owns, has an interest in, leases or otherwise oupies the servient land. DIVISION 2 MAINTENANCE OR REPLACEMENT 51 Appliation of Division This Division applies to a person (a responsible person ) if () the person owns, has an interest in, leases or otherwise oupies the dominant land; under Division 1, the owner of the servient land is bound by a drainage approval or a drainage approval deed; and the drain or improvement for whih the approval was given has been made on the servient land. The drain, or the drain as improved, is the approved drain. Page 28 AT 12 of 2013

29 Setion 52 Flood Risk Management At Maintenane obligation of responsible persons Eah responsible person must maintain the approved drain so that it funtions effiiently (the maintenane obligation ). 53 Entry power for maintenane obligation A responsible person may enter the servient land to omply with the maintenane obligation. However, before doing so, the responsible person must give the servient landowner and any other person who oupies it reasonable notie of the intended entry and its purpose. 54 Remedy for ontravention of maintenane obligation If the owner or oupier of the servient land thinks that the maintenane obligation has been ontravened he or she may notify a responsible person of the fat and require the obligation to be omplied with within a reasonable period after the notifiation. If the maintenane obligation has been ontravened and the requirement is not omplied with, the owner or oupier may take any neessary ation to ensure the maintenane obligation is omplied with; and reover osts reasonably inurred in taking the ation from any responsible person, or all responsible persons jointly or severally, as a debt. However, this setion does not apply if the failure of the approved drain to funtion effiiently was aused by interferene to it by, or with the onsent of, the owner or oupier; or while the owner or oupier prevents a responsible person from entering the servient land to omply with the maintenane obligation. 55 When servient land owner may deal with approved drain The servient landowner may move, replae, fill up, divert or otherwise deal with an approved drain (other than under setion 54) only if the owner of the dominant land ( the dominant landowner ) has agreed to a proposed replaement drain for the approved drain; and the agreed replaement drain has been made and laid down. AT 12 of 2013 Page 29

30 Flood Risk Management At 2013 Setion 56 (4) The dominant landowner may refuse to so agree only on the ground that the proposed replaement drain will not funtion as effiiently as the approved drain. If the dominant landowner refuses to so agree, the dominant landowner must give the servient landowner an appeal notie about the deision. The dominant landowner is taken to have refused to give the approval if () the servient landowner has, by notie, asked for the dominant landowner s agreement to the proposed replaement drain; a month has passed sine the dominant landowner reeived the request; and the dominant landowner has not agreed to the request or given the servient landowner an appeal notie about a deision to refuse it. DIVISION 3 MISCELLANEOUS 56 Offene: obstrution of ertain drains or improvements A person must not wilfully () obstrut another person from making or replaing a drain or improvements approved under Division 1; dam up, obstrut or in any way damage an approved drain; or obstrut a responsible person from omplying with the maintenane obligation. Maximum penalty (summary) 5,000. PART 7 APPEALS 57 Constitution of tribunal The Flood Risk Management Tribunal is established. The tribunal is to onsist of a hair appointed under the Tribunals At 2006; and two other members seleted from a panel in aordane with regulations made under setion 9 of that At. 58 Appeal right The reipient of, or a person who is entitled under this At to be given, an appeal notie about a deision under this At may, under the appeal rules, appeal to the tribunal against the deision. Page 30 AT 12 of 2013

31 Setion 59 Flood Risk Management At Appeal nature and proedure (4) An appeal is to be by way of rehearing and onduted in aordane with the appeal rules. Unless the tribunal otherwise orders, an appeal does not operate to stay the effet of the original deision pending the deiding of the appeal. On hearing the appeal the tribunal may onfirm, vary or reverse the original deision, and, for that purpose, has the same powers as the person who made the original deision; and make an order as to the osts of the appeal. A variation or reversal of the original deision is taken for this At, other than this Part, to be and to have always been the original deision; but does not affet its previous operation or anything done or suffered under it. 60 Additional provisions for appeals about drainage approvals (4) This setion applies for an appeal about a request for a drainage approval. The proposer must give any interested person of whom the proposer is aware a opy of the notie starting the appeal. Any interested person may beome a party to the appeal. If the deision on the appeal is to give the drainage approval the tribunal must deide () (i) (ii) whether there is to be any ompensation for the servient landowner and any interested person; and if it deides there is to be any suh ompensation, the ompensation terms and when the drainage may start; the tribunal s order on the appeal must inlude or refer to a map showing the position of the drainage the subjet of the approval; and the order has effet for Part 6 as if it were a drainage approval deed. 61 Further High Court appeal A further appeal from a deision of the tribunal lies to the Staff of Government Division, under rules of the ourt, on a question of law. AT 12 of 2013 Page 31

32 Flood Risk Management At 2013 Setion 62 PART 8 GENERAL OFFENCES 62 Obstruting those performing funtions A person must not unlawfully obstrut () (d) the arrying out of works under or for the purposes of this At by the Authority or its offiers, employees or agents, or an authorised person; the arrying out of any works by a person required by the Authority, under this At, to arry out the works; the inspetion of any works; or a person lawfully aompanying, or performing a funtion under the supervision of, an authorised person. Maximum penalty (on information) 2 years ustody or a fine. Maximum penalty (summary) 5,000. If a person has ontravened subsetion and the person performing any funtions there desribed ( the offiial ) deides to ontinue to perform the funtion in question, the offiial must warn the person that it is an offene to obstrut the offiial; and the offiial onsiders the person s ondut to be an obstrution. In this setion, obstrut inludes assault, hinder, resist, attempt to obstrut and threaten to obstrut. 63 Wilfully interfering with apparatus installed under At A person must not wilfully interfere with an apparatus installed under this At on land by the Authority or another person. Maximum penalty (on information) 2 years ustody or a fine. Maximum penalty (summary) 5,000. In this setion, apparatus means a devie, gauge, instrument or meter. 64 Giving false information A person must not, for a purpose under this At, wilfully give the Authority a doument or information that is false or misleading in a material partiular. Maximum penalty (on information) a fine. Maximum penalty (summary) 5, Liability of offiers of body orporate This setion applies if Page 32 AT 12 of 2013