SCHEDULES
SCHEDULE 15PROTECTIVE PROVISIONS
PART 10FOR THE PROTECTION OF THE LEAD LOCAL FLOOD AUTHORITY
137. The following provisions apply for the protection of the lead local flood authority unless otherwise agreed in writing between the undertaker and the lead local flood authority.
138. In this Part of this Schedule—
“construction” includes execution, placing, altering, replacing, relaying, removing and excavation and “construct” and “constructed” are to be construed accordingly;
“ordinary watercourse” has the meaning given by section 72 (interpretation) of the Land Drainage Act 1991(1);
“plans” includes sections, drawings, specifications, calculations, method statements and details of maintenance regimes;
“specified work” means so much of any work or operation authorised by this Order and the construction of any works authorised by this Part of this Schedule as is in, on, under, over or within 8 metres of an ordinary watercourse or is otherwise likely to affect any ordinary watercourse.
139.—(1) Before beginning to construct any specified work, the undertaker must submit to the lead local flood authority plans of the specified work and such further particulars available to it as the lead local flood authority may within 2 months of the receipt of the plans reasonably request.
(2) Any such specified work must not be constructed except in accordance with such plans as may be approved pursuant to sub-paragraph (3), or determined under paragraph 143 of this Part of this Schedule.
(3) Any request for approval or refusal of the lead local flood authority under this paragraph 139—
(a)must not be unreasonably withheld or delayed;
(b)is deemed to have been approved if it is neither given nor refused within 2 months of the submission of the plans;
(c)in the case of a refusal, must be accompanied by a statement of the grounds of refusal; and
(d)may be given subject to such reasonable requirements as the lead local flood authority may make for the protection of any ordinary watercourse.
(4) Each time the lead local flood authority requests further information from the undertaker, the time period in sub-paragraph (3)(b) will begin to run again from receipt of the information by the lead local flood authority, save that the time period will be reduced to 28 days.
(5) The undertaker must include in any submission made to the lead local flood authority under this paragraph 139 a statement that the provisions of sub-paragraph (3)(b) and sub-paragraph (4) apply and if the submission fails to do it the provisions of sub-paragraph(3)(b) and sub-paragraph (4) will not apply.
(6) Any requirement made by the lead local flood authority under sub-paragraph (3)(d) may include—
(a)a requirement for the undertaker to carry out monitoring during the implementation of any de-watering scheme approved by the lead local flood authority under this paragraph 139; and
(b)a requirement for the undertaker not to prevent or materially restrict the lead local flood authority’s use of any access route during construction of the specified work or, where that is not possible owing to the nature of the work, a requirement for the undertaker to provide for use by the lead local flood authority during construction of the specified work a reasonably suitable alternative to the access route on land over which the undertaker has control or the ability to provide such alternative access.
140. Without limitation on the scope of paragraph 139 of this Part of this Schedule, but subject always to the provisions of that paragraph as to reasonableness, the requirements which the lead local flood authority may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, within the Order limits whether temporary or permanent, before or during the construction of the specified works (including the provision of walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—
(a)to safeguard any ordinary watercourse against damage; or
(b)to secure that the risk of flooding is not otherwise increased,
by reason of any specified work.
(2) Subject to sub-paragraph (3), any specified work, and all protective works required by the lead local flood authority under this paragraph 140, must be constructed without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule.
(3) The undertaker must give to the lead local flood authority not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 24 hours after the date on which it is completed.
(4) If any part of a specified work or any protective work required by the lead local flood authority is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the lead local flood authority may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the lead local flood authority in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the lead local flood authority reasonably requires.
(5) Subject to sub-paragraph (6) if, within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (4) is served upon the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the lead local flood authority may execute the works specified in the notice and any expenditure reasonably incurred by the lead local flood authority in so doing is recoverable from the undertaker.
(6) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the lead local flood authority must not except in the case of an emergency exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined in accordance with paragraph 143 of this Part of this Schedule.
141. The undertaker must make reasonable compensation for costs, charges and expenses which the lead local flood authority may reasonably incur—
(a)in the examination or approval of plans under this Part of this Schedule;
(b)in inspecting the construction of the specified work or any protective works required by the lead local flood authority under this Part of this Schedule; and
(c)in carrying out any surveys or tests by the lead local flood authority which are reasonably required in connection with the construction of the specified work.
142.—(1) The undertaker must make reasonable compensation for liabilities, costs and losses which may be reasonably incurred or suffered by the lead local flood authority by reason of—
(a)the construction of any specified works comprised within any work or operation or any associated maintenance authorised by this Order; or
(b)any act or omission of the undertaker, its employees, contractors or agents or others while engaged upon the construction of any work or operation or any associated maintenance authorised by this Order.
(2) The lead local flood authority must give to the undertaker reasonable notice of any such claim or demand and afford the undertaker the opportunity to take conduct of such claims and demands.
(3) The undertaker may at its own expense and if it elects to do so, conduct all negotiations for the settlement of any such claim and have conduct of any litigation that may arise therefrom.
(4) The lead local flood authority must not compromise or settle any such claim or make any admission which might be prejudicial to the claim without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed.
(5) The lead local flood authority will, having regard to its statutory functions, at all times take reasonable steps to prevent and mitigate any such claims, demands, proceedings, costs, damages, expenses or losses.
(6) The lead local flood authority will, at the request of the undertaker and having regard to its statutory functions, afford all reasonable assistance for the purpose of contesting any such claim or action, and it entitled to be repaid its reasonable expenses reasonably incurred in so doing.
(7) The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved or deemed to be approved by the lead local flood authority, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from, any liability under this Part of this Schedule.
(8) Nothing in sub-paragraph (1) imposes any liability on the undertaker in respect of any liabilities, costs or losses attributable to the neglect or default of the lead local flood authority, its officers, servants, contractors or agents.
143. Any dispute arising between the undertaker and the lead local flood authority under this Part of this Schedule is to be determined by arbitration under article 52 (Arbitration).