Section 25 of Land Drainage Act 1991
As of the 6th April 2012 Derbyshire County Council gained certain powers under the Land Drainage Act 1991 concerning enforcement on ordinary watercourses. Derbyshire County Council now has permissive powers under Section 25 of the Act to ensure that appropriate maintenance is carried out by riparian landowners on ordinary watercourses. These powers can be exercised if it is deemed that a lack of maintenance or an alteration to a watercourse pose a flood risk.
Therefore, if a landowner carries out actions that adversely impact on the flood risk to another landowner's property, Derbyshire County Council has the right to serve a legal notice on the responsible party to carry out remedial work to resolve the issue. It should be noted however that these powers are permissive and are not a duty and as such the exercising of these powers is at the Council's discretion.
In the first instance after being informed of a possible infringement by a landowner, Derbyshire County Council will seek to gain that landowner's cooperation in ensuring appropriate maintenance takes place. We will carry out site investigations, advise all parties on their duties under the Land Drainage Act and coordinate discussion and communication between relevant parties. Exercising of permissive enforcement powers will only take place when necessary and as a last resort when all other opportunities to resolve the issue have been explored.
Derbyshire County Council has produced a policy document which provides a public statement on the Council's approach to the use of its powers under the Land Drainage Act 1991. This policy statement can be downloaded here. We will use this formal protocol when deciding which works require investigations and possible enforcement and to which cases we give priority on a county wide basis.
Once we have decided that enforcement action is necessary, our permissive powers include:
Advise the responsible party in writing that they must carry out the necessary maintenance works within a specified time.
If the works are not carried out in the specified time, we may serve a notice under Section 21(2) of the LDA requiring the nuisance to be abated. Where an infringement poses a serious flood risk, the first step may be bypassed and the legal notice may be served immediately.
Where there is non-compliance with the Section 21(2) legal notice, we may then have the power under Section 21(4) of the Land Drainage Act 1991 to carry out the remedial works and recover the costs of the works from the responsible party.