IN THE KEYS FLOOD RISK MANAGEMENT BILL 11 Explanatory Memorandum 1. This Bill is promoted by the Isle of Man Water and Sewerage Authority ( the Authority ). PART 1 OPENING PROVISIONS 2. Clause 1 states the short title of the Bill. 3. Clause 2 deals with the Bill s commencement. 4. Clauses 3 to 7 provide for the interpretation of words and expressions used in the Bill. PART 2 FLOOD RISK MANAGEMENT FUNCTIONS OF THE AUTHORITY. Clause 8 appoints the Authority as the authority for flood risk management in the Island. 6. Clause 9 sets out the general flood risk management functions of the Authority. 7. Clause requires the Authority to analyse costs and benefits when exercising certain powers in the Bill. 8. Clause 11 imposes an obligation on the Authority to consider conservation and recreation when exercising functions under the Bill. PART 3 FACILITIES 9. Clause 12 gives the Authority power to designate facilities which it considers to be of general significance for the purposes
ii of flood risk management. Facilities include flood risk management works and watercourses.. Clause 13 requires the Authority to maintain a map or record of every designated facility. 11. Clause 14 sets out the consequences of a designation under clause 12. 12. Clause 1 controls the activities which may be carried out in respect of designated facilities. 13. Clause 16 imposes similar controls in respect of nondesignated watercourses. 14. Clause 17 specifies the procedure for obtaining consent to carry on an activity controlled under clause 1 or 16. PART 4 POWERS IN RESPECT OF FACILITIES 1. Clause 18 requires the Authority to give notice of its intention to exercise a power under clauses 19 to 21 (with certain specified exceptions). 16. Clause 19 sets out the Authority s works powers. 17. Clause enables the Authority to deposit spoil (subject to certain controls). 18. Clause 21 provides for the Authority s powers of entry when exercising functions under the Bill. 19. Clause 22 sets out the powers the Authority may exercise in an emergency flooding situation.. Clause 23 requires the Authority to compensate a person who sustains damage in consequence of the exercise of power under clauses 19 to 21.
iii PART ENFORCEMENT 21. Clause 24 enables the Authority to give an enforcement notice in certain circumstances (for example, where a person damages a designated facility or impedes the flow of a watercourse). The notice requires the person to whom it is given to take the steps specified in the notice. The Authority may take the steps if the person fails to comply with the notice. 22. Clause 2 allows the Authority, in an emergency flooding situation, to take steps analogous to those it could specify in an enforcement notice, without giving the notice. PART 6 OTHER POWERS OF THE AUTHORITY 23. Clause 26 gives the Authority power to acquire land, by agreement with the owner or by compulsory purchase in accordance with the Acquisition of Land Act 1984. 24. Clause 27 enables the Authority to carry out works and provide services for others and to engage contractors to do so on its behalf. 2. Clause 28 allows the Authority to adopt private flood risk management works. 26. Clause 29 provides that the Authority may apply to the High Court for an injunction to enforce compliance with (or restrain contravention of) the Bill. 27. Clause enables the Authority to make bye-laws to give effect to the Bill. 28. Clause 31 provides that the Authority may set and publish fees and forms for the purposes of the Bill. 29. Clause 32 allows the Authority to appoint authorised persons to carry out functions under the Bill on its behalf.
iv PART 7 GENERAL PROVISIONS. Clause 33 establishes the Flood Risk Management Tribunal and provides for appeals to it against certain decisions of the Authority. 31. Clause 34 allows a justice of the peace to issue a warrant authorising the Authority to enter land (this is additional to the Authority s power under clause 21). 32. Clause 3 creates certain offences for interference with the operations of the Authority under the Bill. 33. Clause 36 makes it an offence to provide false or misleading information or documentation to the Authority. 34. Clause 37 specifies the penalties for offences under the Bill. 3. Clause 38 requires the Department of Infrastructure to consider flood risk management when considering applications for planning approval under section 9 of the Town and Country Planning Act 1999. 36. Clause 39 confirms that nothing in the Bill releases obligations already existing when the Bill is enacted. 37. Clause 40 requires the Authority not to interfere with the works or property of statutory undertakers (except in specified circumstances). 38. Clause 41 restricts the Authority from exercising functions under the Bill in a harbour (except in specified circumstances). 39. Clause 42 gives effect to Schedule 1 (transitional and saving provisions). 40. Clause 43 gives effects to Schedule 2 (amendments) and Schedule 3 (repeals). 41. It is not envisaged that the Bill will have any financial consequences additional to those associated with the existing Land Drainage Act 1934.
v 42. In the view of the member moving the Bill its provisions are compatible with the Convention rights within the meaning of the Human Rights Act 01.
vi Arrangement of Sections Section PART 1 OPENING PROVISIONS 1. Short title 2. Commencement 3. Flood 4. Risk. Risk management 6. Flood risk management 7. Other interpretation PART 2 FLOOD RISK MANAGEMENT FUNCTIONS OF THE AUTHORITY 8. Flood risk management authority 9. General flood risk management functions. Requirement to analyse costs and benefits 11. Duty to consider conservation and recreation PART 3 FACILITIES 12. Power to designate facilities 13. Maps and records of designated facilities 14. Consequences of designation 1. Control over activities: designated facilities 16. Control over activities: non-designated watercourses
vii 17. Consents PART 4 POWERS IN RESPECT OF FACILITIES 18. Notice of intention to exercise power under this Part 19. Works powers. Deposit of spoil 21. Powers of entry 22. Emergency powers 23. Compensation PART ENFORCEMENT 24. Enforcement notice 2. Emergency actions PART 6 OTHER POWERS OF THE AUTHORITY 26. Acquisition of land 27. Work on behalf of others 28. Adoption of private flood risk management works 29. Injunctions. Bye-laws 31. Miscellaneous fees and expenses 32. Authorised persons 33. Appeals PART 7 GENERAL PROVISIONS
viii 34. Entry on land with warrant 3. Interference with operations 36. False information 37. Penalties 38. Control of development 39. Other obligations not released 40. Statutory undertakers 41. Harbours 42. Transitional and saving provisions 43. Amendments and repeals SCHEDULES: Schedule 1 Transitional and saving provisions Schedule 2 Amendments Schedule 3 Repeals
1 A BILL to make provision about flood risk management. BE IT ENACTED by the Queen s Most Excellent Majesty, by and with the advice and consent of the Council and Keys in Tynwald assembled, and by the authority of the same, as follows: PART 1 OPENING PROVISIONS 1. The short title of this Act is the Flood Risk Management Act 11. Short title 2. (1) This Act (other than this section and section 1) comes into operation on such day as the Authority by order appoints and different days may be appointed for different provisions and for different purposes. (2) An order under subsection (1) may make transitional and saving provisions which the Authority considers necessary or expedient. Commencement 1 3. (1) Flood includes any case where land not normally covered by water becomes covered by water. (2) It does not matter for the purpose of subsection (1) whether a flood is caused by (a) heavy rainfall; Flood
2 (b) inland water overflowing; (c) the banks of a watercourse being breached; (d) a dam overflowing or being breached; (e) the sea or tidal water; (f) groundwater; (g) surface run-off; or (h) anything else (including any combination of factors). Risk 4. (1) Risk means a risk in respect of an occurrence assessed and expressed (as for insurance and scientific purposes) as a combination of the probability of the occurrence with its potential consequences. (2) The potential harmful consequences to be considered in assessing risk include, in particular, consequences for (a) human health; (b) the social and economic welfare of individuals and communities; (c) land; (d) infrastructure; and (e) the environment (including cultural heritage). (3) Flood risk means the risk of a flood. 1 Risk management. (1) Risk management means anything done for the purpose of (a) analysing a risk; (b) assessing a risk; (c) reducing a risk; (d) reducing a component in the assessment of a risk; (e) altering the balance of factors combined in assessing a risk; or 2
3 (f) otherwise taking action in respect of a risk or a factor relevant to the assessment of a risk. (2) In particular, risk management includes things done (a) that increase the probability of an event but reduce or alter its potential consequences; or (b) that increase the probability of an event occurring at one time or in one place but reduce the probability of it occurring at another time or in another place. 1 6. (1) Flood risk management means risk management in the context of flood risk. (2) Without limiting subsection (1), flood risk management includes (a) the drainage of land; (b) the defence of land against flooding (from any source and in respect of any flood risk); and (c) the provision of flood warning systems. Flood risk management 2 7. In this Act authorised person means a person appointed under section 32(1); the Authority means the Isle of Man Water and Sewerage Authority; banks means banks, walls or embankments adjoining or confining, or constructed for the purpose of or in connection with, a watercourse or the sea front, and includes all land and water between the bank and the low water-mark; bye-laws means bye-laws made by the Authority under section ; cost includes cost to (a) any person; and (b) the environment; designated flood risk management works means flood risk management works designated under section 12; Other interpretation
4 designated facilities means designated flood risk management works and designated watercourses; designated watercourses means a watercourse which is designated under section 12; emergency flooding situation includes (a) a flood; (b) an event or situation which creates an immediate flood risk with any of the potential harmful consequences mentioned in section 4(2); and (c) an event or situation entailing an immediate and material increase in flood risk; enforcement notice means a notice issued under section 24; facilities includes flood risk management works and watercourses (whether or not designated under section 12); 1 flood risk management works means works of any nature or description constructed or otherwise carried out for the purpose of flood risk management, including (without limitation) (a) a sea wall; (b) a pumping station; (c) an embankment; (d) a flood wall; (e) a storage reservoir; (f) a sluice gate; and 2 (g) any land associated with those works; flood warning system means a system to warn of a danger of flooding under which information is obtained and transmitted (whether automatically or otherwise and with or without providing for calculations based on the information or for the transmission of the results of those calculations) concerning (a) rainfall, as measured at a particular place within a particular period;
(b) the level or flow of tidal water or inland water at a particular time; (c) other matters appearing to the Authority to be relevant; groundwater means all water which is below the surface of the ground and in direct contact with the ground or subsoil; improve includes replace, deepen, widen, straighten, raise, divert or alter; inland water includes (a) a watercourse, whether natural or artificial and whether tidal or not; (b) a lake or pond, whether natural or artificial; (c) a reservoir or dock; and 1 (d) a channel, creek, bay, estuary or arm of the sea; the Island includes the watercourses and coastline of the Island; land includes (a) a house, building or other premises; (b) land under water; and (c) an interest in land; on land means on, in or under land; maintain includes inspect, clean, dredge, repair or remove an obstruction; 2 non-designated facilities means flood risk management works and watercourses which are not designated under section 12; non-designated watercourse means a watercourse which is not designated under section 12; publish means published by the Authority in a manner which the Authority considers likely to bring the matter to the attention of those likely to be affected by it;
6 rainfall includes a fall of snow, hail or sleet; serious flood risk means a flood risk with any of the potential harmful consequences mentioned in section 4(2) which the Authority considers to be sufficiently serious to warrant the exercise of its powers under this Act; [c.24] statutory undertakers has the same meaning as in section 72 of the Local Government Act 198; tidal water means any part of the sea and any part of a river within the ebb and flow of the tide; tribunal means the Flood Risk Management Tribunal established under section 33; watercourse (a) includes (i) all rivers, streams, ditches, cuts, culverts, dykes, sluices, land drains and passages through which water flows; and 1 (ii) a lake, pond or other area of water which flows into a watercourse; (b) does not include the sewerage system. Flood risk management authority PART 2 FLOOD RISK MANAGEMENT FUNCTIONS OF THE AUTHORITY 8. (1) The Authority is the authority for flood risk management in the Island and is charged with the general administration of this Act. (2) For the purposes of subsection (1), the Authority has the functions conferred upon it by this Act. 2 General flood risk management functions 9. (1) The Authority must exercise a general supervision over all matters relating to flood risk management. (2) Without limiting subsection (1) or its other powers under this Act, the Authority may (a) prepare and publish flood risk management strategies;
7 (b) undertake surveys to identify what flood risk management works are required; (c) prepare and publish flood risk management plans which specify the works the Authority proposes to carry out; (d) provide and operate flood warning systems; (e) provide, maintain, improve and extend facilities and measures to protect the Island from the risk of flooding; (f) monitor systems and facilities and provide, install, operate and maintain apparatus required for that purpose; (g) prepare, gather and publish other information which the Authority considers relevant concerning flood risk management; and 1 (h) undertake research and provide education and guidance concerning flood risk management.. (1) Subsection (2) applies where the Authority (a) is considering whether or not to exercise a power under section 19 (works powers) other than a power to carry out maintenance works; or Requirement to analyse costs and benefits (b) is deciding the manner in which to exercise the power. (2) The Authority must have regard to the likely costs and benefits of the exercise or non-exercise of the power or its exercise in the manner in question. 2 (3) However, subsection (2) does not apply to the extent it is unreasonable, in view of the nature or purpose of the power or in the circumstances of the particular case, for the Authority to comply with it. (4) The duty under subsection (2) does not affect the Authority s obligation to discharge a duty, comply with a requirement, or pursue an objective imposed under another statutory provision. 3 11. (1) When exercising functions under this Act, the Authority must have regard to the desirability of (a) protecting and conserving land, buildings, sites and objects of national, architectural, archaeological or historic interest; Duty to consider conservation and recreation
8 (b) conserving and enhancing the natural beauty and amenity of the Island; (c) conserving wildlife, flora and fauna; and (d) preserving the use of land and water in the Island for recreational purposes. (2) In determining what steps to take in the performance of the duty under subsection (1)(d), the Authority must have regard to the needs of persons who are chronically sick or disabled. (3) However, subsection (1) does not apply to the extent it is unreasonable, in view of the nature or purpose of the power or in the circumstances of the particular case, for the Authority to comply with it. (4) The duty under subsection (1) does not affect the Authority s obligations to discharge a duty, comply with a requirement, or pursue an objective imposed under another statutory provision. 1 Power to designate facilities PART 3 FACILITIES 12. (1) The Authority may by order designate any flood risk management works or watercourse as being a facility which the Authority considers to be of general significance for the purposes of flood risk management. (2) It does not matter whether or not the flood risk management works or watercourse have been commenced, carried out or made at the time the order under subsection (1) is made and the Authority may make the order as long as it intends to carry out the works following the designation of the facility. (3) Before making an order under subsection (1), the Authority must consult with those persons and bodies who it considers are likely to be affected by the order. (4) An order under subsection (1) must be laid before Tynwald as soon as practicable after it is made, and if Tynwald at the sitting at which the order is laid or at the next following sitting resolves that it is to be annulled, it ceases to have effect. 2 Maps and records of designated facilities 13. (1) The Authority must maintain at its principal office a map or record showing each designated facility. 3
9 (2) The map or record may be in any form approved by the Authority but the Authority must be able to produce legible evidence of its contents. (3) The map or record must be made available for inspection by any person at any reasonable time during office hours free of charge. 1 2 (4) A copy of the map or record that is certified by the Authority as a true copy is sufficient evidence that the facility shown is a designated facility, unless the contrary is proved. () Unless the title to the land on which a designated facility is situated is shown on the title register maintained under section of the Land Registration Act 1982 (a) a copy of each map or record mentioned in subsection (1) showing the land is to be treated as a deed affecting the land for the purposes of the Registration of Deeds Act 1961; and (b) the Authority must register the deed in accordance with that Act. (6) Where the title to the land on which the designated facility is situated is shown on the title register maintained under section of the Land Registration Act 1982 (a) the designation of a facility on the land under section 12 creates a Schedule burden (within the meaning of that Act) over the land for the purposes of section 3 of that Act; and (b) the Authority must register the burden on the title register in respect of the land. [c.7] [XIXp.273] 3 14. (1) The Authority may use its powers under this Act to provide, maintain, improve and extend designated facilities so as to protect the Island from the risk of flooding. (2) The Authority may use its powers under this Act to provide, maintain, improve and extend non-designated facilities only if the Authority considers that (a) there are circumstances which pose a serious flood risk; or (b) the power should be exercised to mitigate the consequences of flooding. Consequences of designation
(3) Activities concerning designated facilities are controlled by section 1. (4) Similar controls concerning non-designated watercourses are imposed by section 16. Control over activities: designated facilities 1. (1) Without the written consent of the Authority, a person may not carry out works to a designated facility. (2) Without the written consent of the Authority, a person may not construct, lay, alter, demolish or remove (a) a building or other structure on or over a designated facility, or within 9.1 metres of the facility; or (b) any apparatus on or over a designated facility, or within 9.1 metres of a designated facility. (3) Without the written consent of the Authority, a person may not create an obstruction that affects or may affect (a) the maintenance of a designated facility; or (b) access to a designated facility. (4) Without the written consent of the Authority, a person may not do anything in respect of a designated watercourse which would require the consent of the Authority under section 16(1) or (2) if it were done in respect of a non-designated watercourse. () Subsections (1) to (4) do not apply to anything that is reasonably done in an emergency, but the person taking the action must inform the Authority promptly of anything so done. (6) A person who contravenes subsection (1), (2), (3) or (4) commits an offence. (7) Additionally, if a person contravenes subsection (1), (2), (3) or (4), the Authority may in writing require the person to undo the work or remove the building, structure, apparatus or obstruction (as the case may be) and to restore the designated facility to its condition before the contravention. (8) The Authority may by order amend subsection (2) by varying any distance specified in that subsection. (9) An order under subsection (8) must be laid before Tynwald as soon as practicable after it is made, and if Tynwald at the sitting at which the order is laid or at the next following sitting resolves that it is to be annulled, it ceases to have effect. 1 2 3
11 () There is a right of appeal, in accordance with section 33, against a decision of the Authority on an application for consent under subsection (1), (2), (3) or (4). 1 2 16. (1) Without the written consent of the Authority, a person may not (a) erect a dam, weir or other like obstruction to the flow of a non-designated watercourse or raise or otherwise alter such an obstruction; (b) erect a bridge, culvert, pipe or diversion sluice likely to affect the flow of a non-designated watercourse or alter a bridge, culvert, pipe or sluice in a manner likely to affect such flow; or (c) otherwise divert a non-designated watercourse. (2) Without the written consent of the Authority, a person may not carry out any other works which materially affect or may materially affect the flow of a non-designated watercourse. (3) Subsections (1) and (2) do not apply to anything that is reasonably done in an emergency, but the person taking the action must inform the Authority promptly of anything so done. (4) A person who contravenes subsection (1) or (2) commits an offence. () Additionally, if a person contravenes subsection (1) or (2), the Authority may in writing require the person to undo the work or remove the obstruction (as the case may be) and to restore the watercourse to its condition before the contravention. (6) There is a right of appeal, in accordance with section 33, against a decision of the Authority on an application for consent under subsection (1) or (2). Control over activities: non-designated watercourses 3 17. (1) An application for the consent under section 1 or 16 must be (a) made in the form and manner directed by the Authority; and (b) accompanied by the fee (if any) published in accordance with section 31. (2) Before giving consent, the Authority may require the applicant to submit Consents
12 (a) plans and specifications and other details of any work or matter for which the consent is sought; and (b) any supplemental information which the Authority requires. (3) If consent is not given within 2 months of receipt of the application, it is to be treated as refused unless the Authority and the applicant agree in writing to extend the period during which consent may be given. (4) In giving consent, the Authority may do so unconditionally or on such conditions as it specifies in its decision. () There is a right of appeal, in accordance with section 33, against the imposition of conditions under subsection (4). (6) If a person to whom consent is given contravenes any condition on which the consent is given, he or she commits an offence. 1 (7) A requirement to obtain the consent of the Authority under this Act is additional to, and not in derogation of, any other statutory requirement to obtain consent (or analogous or similar requirement). Notice of intention to exercise power under this Part PART 4 POWERS IN RESPECT OF FACILITIES 18. (1) The Authority must serve a notice in writing of its intention to exercise a power in sections 19 to 21 on every person who is an owner or occupier of the land concerned. (2) The notice must be served at least 21 days before exercising the power. (3) The notice must include the details of any works the Authority proposes to carry out in connection with the exercise of the power. (4) The Authority need not comply with subsection (1) (a) in an emergency; (b) to carry out maintenance works which do not entail the entry on land with heavy equipment; or (c) to exercise a power of entry under section 21 in circumstances where the Authority is to enter on land without heavy equipment. 2 3
13 19. (1) The Authority may maintain existing facilities. Works powers (2) Without limiting subsection (1), the Authority may clean, repair or otherwise maintain any existing flood risk management works or watercourse. (3) The Authority may improve any existing facilities. (4) Without limiting subsection (3), the Authority may (a) deepen, widen, straighten or otherwise improve an existing watercourse; or (b) raise, widen or otherwise improve any existing flood risk management works. () The Authority may create new facilities. (6) Without limiting subsection (), the Authority may (a) carry out new flood risk management works; (b) make a new watercourse; 1 (c) erect machinery; or (d) do any other act required for a purpose connected with flood risk management. (7) The Authority may alter or remove works. 2 (8) The Authority may maintain, improve or construct flood risk management works for the purpose of defence against the sea or tidal water; and that power may be exercised above and below the low-water mark. (9) The Authority may construct all such works and do all such things in the sea or in any estuary as it considers necessary to secure an adequate outfall for a river. () However, where powers under this section are to be exercised in relation to non-designated facilities, they may only be exercised so far as is necessary to prevent a serious flood risk or to mitigate damage caused by flooding. (11) This section is subject to section 23 (compensation).. (1) Subject to subsections (3) and (4), the Authority may Deposit of spoil (a) without making payment for it, appropriate and dispose of any shingle, sand, clay, gravel, stone, rock or other
14 matter removed in the course of the carrying out of any powers under section 19; and (b) in the case of works to a watercourse, deposit any matter so removed (i) on the banks of the watercourse; or (ii) on such width of land (not exceeding metres) adjoining the watercourse. [c.46] [c.] (2) The Authority may exercise its powers under subsection (1) without it being required (a) to obtain a lease, licence or permission under the Minerals Act 1986 or other statutory provision; or (b) to pay any royalty (or similar payment). (3) However, the Authority may not sell any of the material referred to in subsection (1) without the approval of the Department of Economic Development. (4) Subsection (1) does not authorise the deposit of any material if the material deposited would constitute a statutory nuisance within the meaning of section 1 of the Public Health Act 1990. () The Authority may by order amend subsection (1)(b)(ii) by varying the width specified in that subsection. (6) An order under subsection () must be laid before Tynwald as soon as practicable after it is made, and if Tynwald at the sitting at which the order is laid or at the next following sitting resolves that it is to be annulled, it ceases to have effect. (7) This section is subject to section 23 (compensation). 1 2 Powers of entry 21. (1) When exercising functions under this Act, the Authority may, at any reasonable hour or in an emergency, enter on land (with heavy equipment if the Authority considers it necessary or expedient) (a) to inspect the land; (b) to take or carry out any measurements, surveys, tests, investigations, experimental borings or photographs on the land; (c) to construct, maintain, operate or improve any flood warning systems, monitoring equipment or other apparatus on the land; 3
1 (d) to take or remove from the land, for analysis, samples of any substance, article or other thing found there; (e) to take or remove from the land, for the purposes of evidence in any civil or criminal proceedings under or in connection with this Act, any substance, article or other thing; or (f) to obtain access to any other land. (2) A power under subsection (1) is only to be exercised (a) if there are reasonable grounds for doing so; and 1 (b) in a manner that is proportionate and otherwise reasonable. (3) An authorised person who enters on land in the exercise of a power under subsection (1) which is for the time being unoccupied must leave it secured as effectually as he or she found it. (4) This section is subject to section 23 (compensation). 22. (1) If the Authority considers there to be an emergency flooding situation, it may take any steps it considers appropriate Emergency powers (a) to prevent or control the flood; or (b) to reduce or mitigate (i) the effects of the flood; or (ii) the harmful consequences arising as a result of the flood. (2) Without limiting subsection (1), the Authority may 2 (a) enter on any land (with heavy equipment, if the Authority considers it necessary or expedient); (b) divert water to a nearby watercourse; (c) liaise with the police so as to enable a constable in uniform to exercise powers under section 40 of the Road Traffic Act 198 (power of police to stop vehicles etc); (d) issue sandbags and other items to control or divert the flow of water; [c.23]
16 (e) erect temporary flood risk management works; (f) require persons to evacuate properties; (g) erect temporary bridges; and (h) provide such advice and assistance to the public as it considers necessary or expedient. (3) The Authority may use such force as is reasonably necessary for the purpose and may enter on land without the consent of the owner or occupier. (4) The Authority may make arrangements with a public body for the body to exercise powers under this section on behalf of, or jointly with, the Authority. () The arrangements must be made by a written agreement between the Authority and (a) the public body which is to exercise the powers; or (b) another public body which has power to enter into agreements on behalf of the public body which is to exercise powers under this section. (6) A public body exercising powers under this section must provide the Authority and every other public body exercising such powers with such assistance as the Authority considers reasonably necessary to enable the Authority to perform its functions under this section. 1 (7) In this section public body includes (a) the police force; 2 (b) the fire brigade; (c) the ambulance service; (d) a Department or Statutory Board; (e) a body with a member whose appointment requires Tynwald approval; (f) a local authority; and (g) a public officer.
17 23. (1) The Authority must compensate a person who sustains damage in consequence of the exercise of a power under sections 19 to 21. Compensation (2) A person sustains damage if (a) the value of the person s interest in land is depreciated; or (b) the person s enjoyment of land is disturbed. (3) A claim for compensation must be made (a) if the power to which the claim relates is exercised during the undertaking of any works by the Authority, within 3 years after the completion of those works; and (b) in any other case, within 3 years after exercising the power. 1 (4) A dispute concerning entitlement to compensation or the amount of compensation 2 3 (a) is to be referred to and determined by an arbitrator appointed by agreement between the Authority and the claimant; or (b) in default of agreement, is to be referred to and determined by an arbitrator appointed under section 3 of the Acquisition of Land Act 1984. () In the determination of a dispute under subsection (4), the provisions of Part III of the Acquisition of Land Act 1984 apply, in so far as they are capable of being applied to the circumstances of the case. (6) In the application of that Part, references in it to the arbitrator are to be read as including a reference to an arbitrator appointed under subsection (4)(a). (7) When assessing compensation payable in respect of depreciation in the value of an interest in land, account is to be taken of the extent to which the value of the land has been enhanced by reason of the exercise of the power to which the claim relates. (8) Compensation is not payable under this Act to the extent that (a) the damage is attributable to the fault of the claimant; or [c.9]
18 Enforcement notice (b) the act or omission would have been actionable at the instance of the claimant if it had been done or omitted otherwise than in exercise of statutory powers. PART ENFORCEMENT 24. (1) This section applies if a person (a) causes, or knowingly permits the causing of, damage to a designated facility; (b) fails to maintain properly the condition of a nondesignated facility in circumstances where the failure results or may result in a material increase in flood risk; (c) allows the flow of a watercourse to be impeded in circumstances where the impediment results or may result in a material increase in flood risk; (d) otherwise fails to take reasonable steps to prevent a material increase in flood risk in respect of a facility over which the person has control; or (e) fails to comply with (i) a requirement of the Authority given under section 1(7) or 16(); or (ii) a condition imposed by the Authority in respect of a consent given under section 17(4). (2) The Authority may give an enforcement notice. (3) The enforcement notice must in writing direct the person to whom it is given to take specified steps, within a specified period (a) to remedy or mitigate the effects of the damage, loss of condition, impeded flow, failure to take reasonable steps or failure to comply (as the case may be); and (b) where appropriate, to restore the facility to its condition immediately before this section applied. (4) The steps (a) must be reasonably practicable; and (b) may be otherwise prohibited under bye-laws. 1 2
19 () There is a right of appeal, in accordance with section 33, against the giving of an enforcement notice. (6) A person who fails to comply with an enforcement notice commits an offence. (7) If an enforcement notice is not complied with (a) the Authority may take the steps specified in the notice; (b) the Authority may require the person who failed to comply with the notice to pay the reasonable expenses incurred under paragraph (a); and (c) payment under paragraph (b) is recoverable by the Authority as a debt. 1 2 2. (1) This section applies if (a) a person does (or fails to do) anything which would otherwise enable the Authority to give an enforcement notice under section 24; and (b) the Authority considers that there is a consequent emergency flooding situation. (2) The Authority may (a) without giving an enforcement notice (i) act to remedy or mitigate the effects of the damage, loss of condition, impeded flow, failure to take reasonable steps or failure to comply (as the case may be); and (ii) where appropriate, restore the facility to its condition immediately before this section applied; (b) require the person referred to in subsection (1)(a) to pay the reasonable expenses of that action; and (c) recover the expenses as a debt. Emergency actions PART 6 OTHER POWERS OF THE AUTHORITY 26. (1) If it appears to the Authority that any land should be acquired for the purpose of carrying this Act into effect, the Authority may acquire the land Acquisition of land
(a) by agreement with the owner; or [c.9] (b) by compulsory purchase on behalf of the public in accordance with the provisions of the Acquisition of Land Act 1984. (2) For the purposes of that Act, the Authority is the acquiring authority in relation to the acquisition of any land. (3) In assessing the amount of compensation payable to any person in relation to a compulsory purchase the arbitrator (within the meaning of the Acquisition of Land Act 1984) must (a) act in accordance with the rules set out in section of that Act; (b) if satisfied that the value of the land to be acquired has been or will be enhanced by reason of the expenditure or proposed expenditure of public money in connection with the purpose for which the land is to be acquired, set off against the value used to assess the compensation any increase in the value attributable to the expenditure. (4) The power to acquire land by compulsory purchase to which subsection (1) refers includes the power 1 (a) to acquire any interest in land or a right on or over land by the creation of a new interest or right; and (b) to extinguish or modify any interest in land or right on or over land. Work on behalf of others 27. (1) For the purposes of this Act, the Authority may, by agreement with any person, carry out works or provide other services, facilities and materials to the person. (2) The amount that is to be payable for the provision of the work, service, facility or material is to be determined by agreement between the Authority and the person concerned. (3) The Authority may engage a person as a contractor, on such terms as the Authority agrees with the person, to execute work or perform other functions on the Authority s behalf under or for the purposes of this Act. 2 Adoption of private flood risk management works 28. (1) The Authority may agree with any person constructing or proposing to construct any private flood risk management works that, if the works are constructed in accordance with the terms of 3
21 the agreement, the Authority will, upon the completion of the work, at some specified date or on the happening of some future event, designate the works under section 12. (2) An agreement under subsection (1) is enforceable against the Authority by the owner or occupier of any land served by the works to which it relates. (3) An agreement under subsection (1) may include (a) provision enabling the Authority (i) to carry out works to remedy any failure to construct the works in accordance with the terms of the agreement; (ii) to recover from another party to the agreement the expenses reasonably incurred by the Authority in so doing; 1 (b) provision enabling the Authority (i) to carry out works to maintain or improve the works; (ii) to recover from another party to the agreement an agreed sum representing the anticipated expenses which the Authority reasonably expects to incur in carrying out the works first mentioned in subparagraph (i); and (c) provision for security for any sums due to the Authority under paragraph (a)(ii) or (b)(ii). 2 (4) The Authority may agree with the owner of any private flood risk management works which have already been constructed that the Authority will designate the works under section 12. () An agreement under subsection (4) is enforceable against the Authority by the owner or occupier of any land served by the works to which it relates. (6) An agreement under subsection (4) may include provision enabling the Authority (a) to carry out works to maintain or improve the works; 3 (b) to recover from another party to the agreement an agreed sum representing the anticipated expenses which the Authority reasonably expects to incur in carrying out the works first mentioned in paragraph (a); and
22 (c) provision for security for any sums due to the Authority under paragraph (b). Injunctions 29. (1) The Authority may apply to the High Court for an injunction to enforce compliance by any person with this Act, or to restrain a person from contravening this Act. (2) Subsection (1) does not relieve a person from criminal liability incurred by reason of an act or omission, or limit any other remedies of the Authority in respect of the person s acts or omissions. Bye-laws. (1) The Authority may make bye-laws providing for any matters which the Authority considers are necessary or expedient (a) to secure the efficient working of the flood risk management system; or (b) otherwise to give effect to this Act. (2) Bye-laws may make detailed provision concerning (a) the exercise of any of the Authority s functions under this Act; or (b) the operation of any section of this Act. (3) Bye-laws may (a) provide for their contravention to be an offence and prescribe a penalty for the offence on summary conviction (which must not exceed the penalty specified in section 37(2)); (b) permit a person to exercise a discretion in respect of any matters specified in the bye-laws; (c) require compliance with standards or the adoption of practices recommended or specified from time to time (whether before or after the making of the bye-laws) by a person or body specified in the bye-laws; and (d) contain consequential, incidental, supplementary and transitional provisions as the Authority considers to be necessary or expedient. (4) Bye-laws must be laid before Tynwald as soon as practicable after they are made and if Tynwald, at the sitting at which they are laid or at the next following sitting, fails to approve them they cease to have effect. 1 2 3
23 31. (1) The Authority may (a) set in bye-laws the level of any fees payable under this Act or bye-laws; Miscellaneous fees and expenses (b) specify any statement, document or form required under this Act; and (c) publish such fees, statements, documents and forms. (2) A published fee is recoverable by the Authority as a debt. 1 (3) Where the Authority is to carry out works or provide other services, facilities and materials under this Act, it may agree to recover from another party the amount that is to be payable for the provision of the works, service, facility or material. (4) Where the Authority is to provide data or information to person under this Act it may agree to recover as a debt from another party the expenses reasonably incurred by the Authority in providing the data or information. 32. (1) The Authority may in writing appoint authorised persons to exercise its functions under this Act. Authorised persons (2) The following may be appointed as an authorised person (a) a person who is employed in the service of (i) the Authority; (ii) a Department; or (iii) another Statutory Board; or 2 (b) any other person engaged by the Authority to execute any work or perform any other function on the Authority s behalf under or for the purposes of this Act, or who is a director, partner or manager or other responsible employee of a contractor so engaged by the Authority. (3) An authorised person who is exercising or proposing to exercise a power under this Act must produce, on request, evidence of the person s authority to do so. (4) An authorised person must also, on request (a) state his or her name; and
24 (b) specify the power that he or she proposes to exercise. () In exercising a function under this Act (including a power conferred by a warrant granted under section 34), an authorised person may be accompanied by (a) such assistants, advisers and other persons; and (b) such vehicles, equipment and materials, as are reasonably necessary or expedient for the purpose. (6) A person who accompanies an authorised person under subsection () may perform any of the authorised person s functions under this Act, but only under the latter s supervision. PART 7 GENERAL PROVISIONS Appeals [c.1] 33. (1) There is to be a tribunal known as the Flood Risk Management Tribunal. (2) The tribunal is to consist of (a) a chair appointed in accordance with the Tribunals Act 06; and (b) 2 members selected in accordance with regulations made under section 9(b) of the Tribunals Act 06 from a panel appointed in accordance with that Act. (3) A person specified in subsection (4) who is aggrieved by a decision of the Authority may appeal to the tribunal in accordance with rules made under section 8 of the Tribunals Act 06. (4) The persons are (a) a person mentioned in section 1(1), (2), (3) or (4) (control over activities: designated facilities); (b) a person mentioned in section 16(1) or (2) (control over activities: non-designated watercourses); (c) a person on whom a condition is imposed by the Authority in respect of a consent given under section 17(4) (consents); and (d) a person mentioned in section 24(3) (enforcement notices). 1 2
2 () Unless rules under section 8 of the Tribunals Act 06 provide otherwise, an appeal must be brought within 21 days after the appellant is served with a written copy of the decision against which the appeal is bought, or within any further time which the tribunal allows. (6) Unless the tribunal otherwise orders, the lodging of an appeal does not operate to stay the effect of the decision pending determination of the appeal. (7) On hearing the appeal the tribunal may (a) confirm, vary or reverse the decision; and (b) make an order as to the costs of the appeal. (8) The variation or reversal of a decision does not affect its previous operation or anything done or suffered under it. 1 (9) A decision of the tribunal is binding on the Authority and the appellant. () However, an appeal from a decision of the tribunal lies to the High Court, in accordance with rules of court, on a question of law. (11) In this section, a decision includes a requirement or direction. 34. (1) A justice of the peace may issue a warrant under this section if satisfied on oath that Entry on land with warrant (a) there are reasonable grounds for the exercise of a power by the Authority under this Act; and 2 (b) in the circumstances of the case, it is desirable to grant the warrant. (2) The warrant authorises the Authority (a) to enter on any land specified in the warrant; (b) to be accompanied by any person specified in the warrant; (c) to exercise the power there; and (d) to use such reasonable force as is necessary. (3) The warrant continues in force until whichever of the following occurs first
26 (a) the power is exercised; or (b) the period specified in the warrant expires. (4) This section does not affect the other powers of the Authority under this Act. Interference with operations 3. (1) A person commits an offence if the person obstructs (a) the carrying out of any works under or for the purposes of this Act by the Authority or its officers, employees or agents, or by an authorised person; (b) the carrying out of any works by a person who is required by the Authority under this Act to carry out those works; (c) the inspection of any works carried out under this Act; (d) the exercise or the proposed exercise by any person of a power under this Act; or (e) a person who is lawfully accompanying an authorised person, or performing any function under the supervision of an authorised person. (2) A person who damages a designated facility commits an offence. (3) A person commits an offence if the person maliciously or dishonestly interferes or tampers with any meter or other apparatus that is installed on or in any land (a) by the Authority, for the purposes of this Act; or (b) by any other person, in accordance with this Act. 1 False information 36. A person commits an offence if the person, for a purpose under this Act (a) sends a document to the Authority which the person knows to be false; (b) recklessly sends a document to the Authority which is false or misleading in a material particular; (c) in furnishing information to the Authority (i) makes a statement which the person knows to be false or misleading in a material particular; 2
27 (ii) recklessly makes a statement which is false or misleading in a material particular. 37. (1) Subject to subsection (2), a person guilty of an offence under this Act is liable Penalties (a) on conviction on information to (i) custody for up to 2 years; (ii) a fine; or (iii) both custody and a fine; or (b) on summary conviction to a fine not exceeding,000. (2) A person guilty of an offence under (a) bye-laws (section ); or (b) section 36 (false information), is liable on summary conviction to a fine not exceeding,000. 1 (3) Subsection (4) applies if an offence under this Act is committed by a body corporate and it is proved that an officer of the body authorised, permitted, participated in, or failed to take all reasonable steps to prevent the commission of the offence. (4) The officer, as well as the body, commits the offence and is liable to the penalty provided for the offence. () In this section, officer includes 2 (a) a director, secretary or other similar officer; (b) a person purporting to act as a director, secretary or other similar officer; (c) if the affairs of the body are managed by its members, a member; (d) if the body has a registered agent in accordance with the requirements of the Limited Liability Companies Act 1996 or the Companies Act 06 (as the context requires), the registered agent. [c.19] [c.13] 38. (1) When considering an application for planning approval under section 9 of the Town and Country Planning Act 1999, the Department of Infrastructure must have regard to Control of development [c.9]
28 (a) the Authority s published flood risk management plans and strategies; (b) the extent to which the proposed development creates an additional risk of flooding. (2) If the Department of Infrastructure considers the additional risk of flooding to be significant, it may refuse planning permission or grant planning approval subject to conditions in accordance with section of the Town and Country Planning Act 1999. Other obligations not released 39. (1) Nothing in this Act releases a person from an obligation (however arising) to which the person was subject immediately before the passing of this Act. (2) In particular, nothing in or done under this Act relieves a person from an obligation to obtain any consent, authorisation or permission (or analogous or similar obligation) required under any other enactment. (3) However, subsection (1) does not apply to any flood risk management obligation relating to designated facilities and such obligations are abolished. 1 Statutory undertakers 40. (1) Nothing in this Act authorises the Authority or any other person to carry out works or otherwise exercise a power under this Act which interferes (or will interfere) directly or indirectly with the works or property of a statutory undertaker in a manner which interferes prejudicially with those works or that property or the carrying on of the statutory undertaking. (2) Subsection (1) does not apply where the works are done or the power is exercised (a) with the consent of the statutory undertaker; or (b) in an emergency. (3) Consent under subsection (2)(a) may be given subject to reasonable conditions but must not be unreasonably withheld or delayed. (4) In the case of an emergency, the Authority must inform the statutory undertaker concerned promptly of the exercise of the function. () A question as to a matter mentioned in subsection (6) is to be referred to an arbitrator to be agreed between the parties 2 3