Ordinary Watercourse Regulation

Transcription

1 Ordinary Watercourse Regulation David Chapman & Lee Sencier Ordinary Watercourse Regulation Engineers (Essex County Council)

2 Introduction Dave Chapman Ordinary Watercourse Regulation Engineer (Epping, Harlow, Uttlesford, Braintree, Colchester, Tendring) Lee Sencier Ordinary Watercourse Regulation Engineer (Brentwood, Chelmsford, Maldon, Basildon, Castle Point, Rochford) Nicola China Ordinary Watercourse Regulation Officer (County Wide) Southend on sea and Thurrock Unitary Authorities are responsible for administering powers under the Land Drainage Act 1991 and should be contacted directly for any Ordinary Watercourse Related issues.

3 Definition of an Ordinary Watercourse A watercourse that is not part of a main river all rivers and streams, ditches, drains, cuts, culverts, dikes, sluices, sewers (other than public sewers within the meaning of the Water Industry Act 1991) and passages, through which water flows. Land Drainage Act 1991

4 Some Other Definitions Surface water runoff: Rainwater (including snow and other precipitation which is on the surface of the ground (whether or not it is moving), and has not entered a watercourse, drainage system or public sewer. Groundwater: Flood and Water Management Act 2010 All water which is below the surface of the ground and in direct contact with the ground or subsoil. Artesian spring: Flood and Water Management Act 2010 A spring whose water issues under artesian pressure, generally through some fissure or other opening in the confining bed that overlies an aquifer. Also known as fissure spring.

5 Land Drainage Act 1991:- Section 23 Prohibition on obstructions etc. in watercourses (1) No person shall (a) erect any mill dam, weir or other like obstruction to the flow of any ordinary watercourse or raise or otherwise alter any such obstruction; or (b) erect any culvert that would be likely to affect the flow of any ordinary watercourse or alter any culvert in a manner that would be likely to affect any such flow, without the consent in writing of the drainage board concerned. Section 24 Contraventions of prohibition on obstructions etc. (1) If any obstruction is erected or raised or otherwise altered, or any culvert is erected or altered, in contravention of section 23 above, it shall constitute a nuisance in respect of which the drainage board concerned may serve upon such person as is specified in subsection (2) below a notice requiring him to abate the nuisance within a period to be specified in the notice.

6 Example (S23/ 24 Un-consented Works) Un-consented Backfilling of ditch along western boundary of site which resulted in flooding of adjacent properties. Poor maintenance of Ordinary Watercourse passing through the site. Poor maintenance of access road drainage

7 Example (Con t) Option 1 Re-instatement of open ditch along western boundary of site, enforceable under Section 25 of the Land Drainage Act Option 2 Install an up-stand along the western boundary of site and extending existing pre-cast concrete channel to link into piped ordinary watercourse to the south.

8 Land Drainage Act 1991 (Con t) Section 25 Powers to require works for maintaining flow of watercourse. (1) Subject to section 26 below, where any ordinary watercourse is in such a condition that the proper flow of water is impeded, then, unless the condition is attributable to subsidence due to mining operations (including brine pumping), the drainage board or local authority concerned may, by notice served on a person falling within subsection (3) below, require that person to remedy that condition. Highways Act 1980:- Section 100 Drainage of highways. (1) The highway authority for a highway may, for the purpose of draining it or of otherwise preventing surface water from flowing on to it, do all or any of the following: (a) construct or lay, in the highway or in land adjoining or lying near to the highway, such drains as they consider necessary; (b) erect barriers in the highway or in such land as aforesaid to divert surface water into or through any existing drain; (c) scour, cleanse and keep open all drains situated in the highway or in such land as aforesaid.

9 Example (S25 Watercourse Maintenance) Heavily silted and Overgrown Ditch Systems Blocked Culverts and Road Gullies General Design of Riparian Drainage System (i.e. Culvert Diameters and Alignment of Pipework) Backfilling of Ditch System with Fly Tipped Waste

10 Challenges Moving Forward:- Educating Riparian Landowners (Rights and Responsibilities):- Rural Areas Less of a challenge as Landowners commonly have the knowledge and capability to carry out work, there are fewer stakeholders and drainage systems are more visible/ accessible. Developed Areas More of a challenge as generally Landowners have less knowledge and capability to carry out work, there are a greater number of stakeholders and drainage systems are less visible/ accessible. Land also changes hands more frequently and the appropriate records/ information associated with the watercourse are not transferred with it. Threshold for Enforcement Activity (When to take Action):- Risk Based Approach to Enforcement Reporting an Incident (Timescales)

11 Challenges (Con t) Identifying who is responsible (Land Boundaries):- Land Registry Rules of Common Law Unregistered Land Compiling a Legal Case (Evidence that an offence has taken place):- Historic Records (Ordinary Watercourse Mapping) Photographic Evidence Witness Statements Site Inspections

12 Enforcement Case Study:- Case Details:- New bio digester fitted with an outfall into the watercourse at House A Watercourse outside House B filled in without LLFA consent

13 Site Plan:- New bio digester Open ditch A B Unconsented filling of a watercourse Existing culvert

14 Course of action:- Site visit/information gathering

15 Information gathering:-

16 Course of action (Con t) Site visit/information gathering Information letter sent to resident Formal letter sent to resident Serve notice

17 S25 Notice:- Land Drainage Act 1991 Section 25 NOTICE REQUIRING WORKS TO MAINTAIN FLOW OF AN IMPEDED ORDINARY WATERCOURSE To: xxx Land Drainage Act 1991 Section 25 Notes: General Failure to comply with this Notice is an offence under Section 25(6)(b) of the Land Drainage Act 1991 and may result in legal action being taken against you. Under Section 25 of the Land Drainage Act 1991, Essex County Council can require works where the proper flow of water in an ordinary watercourse is impeded. Essex County Council considers that the ordinary watercourse(s), namely at xxx are in such a condition that the proper flow of water is impeded, namely, xxx Essex County Council requires you, as the: person who has control of the part of the ordinary watercourse where the impediment occurs; or owner or occupier of the land adjoining that part; or person responsible by your act or default for the condition of the said watercourse to take the actions set out in Schedule 1 of this notice by the date(s) specified. You have a right of appeal against this Notice. You may wish to seek independent legal advice. If you fail to comply with this Notice, Essex County Council may carry out the works and recover from you any expenses reasonably incurred in so doing. Appeal Provisions You are entitled to appeal against this Notice under Section 27 of the Land Drainage Act Notice of appeal must be made to a Magistrates Court within 21 days from the date on which this is notice was served. The procedure for an appeal under this section shall be by way of complaint for an order in accordance with the Magistrates Courts Act Date... Signed... [name of authorised signatory] [title of authorised signatory] Essex County Council [insert address of insert Local Authority office] SCHEDULE 1 WORKS REQUIRED Works By Date

18 Course of action (Con t) Site visit/information gathering Information letter sent to resident Formal letter sent to resident Notice served Appeal lodged and upheld Court appearance and verdict

19 Lessons learnt:- Evidence of a flowing ditch/watercourse must be available to provide the burden of proof that the feature was present, in order for the notice to have been served in relation to it Should a ditch be in a poor condition prior to it being in filled or altered (i.e. heavily silted up, no flowing water) evidence should be sought to prove that it was historically a ditch. Witnesses should ideally be present to verify that water flowed through the ditch, or powers of entry should be exercised to gather evidence of inlets/outlets/culverts We must scrutinise the evidence bundle provided by an appellant and employ the services of expert witnesses to counteract the arguments provided

20 Questions? If you have any questions please contact the Flood and Water Management team at: