Ordinary Watercourse Consenting
Posted by Lewis on the 29th January 2015
If you plan to undertake any works to an ordinary watercourse, you may require consent under the Land Drainage Act from Rhondda Cynon Taff County Borough Council. This article provides information on the new process.
On 6th April 2012, a further phase of the Flood and Water Management Act 2010 (FWMA) came into effect. Lead Local Flood Authorities (LLFA), such as Rhondda Cynon Taff County Borough Council (RCT), took on responsibilities from the Environment Agency Wales in regards to ordinary watercourse consent.
The purpose of ordinary watercourse regulation is to control certain activities that may have an adverse impact on flood risk and the environment. RCT is now required to ensure this, along with having due regard for other acts and regulations (see question 4 for more detail).
To assure this, RCT has the power to apply reasonable conditions to consent, for example, applying conditions to the manner of the works, restrict timing and working periods due to fish/ bird/ mammal activity or deny consent (although RCT will try to work with applicants to ensure plans are consent able).
It is recommended that Landowners and Developers contact RCT as early as possible on any proposal, allowing sufficient time before work is to start. By doing so, possible issues can be identified and resolved prior to plans reaching an advanced stage, minimising costs to all parties. Other benefits include the identification of environmental enhancements which do not necessarily require significant expenditure by the developers and reducing the time required for RCT to make a decision.
An ordinary watercourse is defined as a watercourse that does not form part of a main river. This includes streams, drains, culverts, dikes, ditches and passages through which water flows. The Environment Agency will continue to consent on Main Rivers and a non- statutory map showing main rivers is available at the Environment Agencys website – Whats in your back yard ?
What is an ordinary watercourse and what requires consent?
The Flood and Water Management Act 2010 (FWMA) is more widely drawn than the previous regulations. Consent is required for: -
- Any alteration likely to affect the flow of an ordinary watercourse;
- Any culvert; and
- Temporary as well as permanent works.
If you have received consent from the Environment Agency Wales prior to April 2012, this is still valid. Likewise, if enforcement action has commenced from the Environment Agency Wales, they will continue to be responsible for these cases.
What is written in the legislation?
Section 23 of the Land Drainage Act 1991 as amended by the FWMA 2010 states:
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 a culvert in an ordinary watercourse, or
(c) alter a culvert in a manner that would be likely to affect the flow of an ordinary watercourse, without the consent in writing of the drainage board concerned.
(1A) Consent under this section may be given subject to reasonable conditions.
(1B) An internal drainage board or lead local flood authority must consult the Environment Agency before carrying out work within subsection (1)(a), (b) or (c) if the board or authority is "the drainage board concerned" for the purposes of this section.
(1C) The drainage board concerned must have regard to any guidance issued by the Environment Agency about the exercise of the board's functions under this section.]
How is consent administered?
To obtain consent, a fee of £50 per structure is to be paid. when a fully complete application is received, Applications have a statutory 2 month determination period and an application will be granted, denied or granted with conditions. A timescale will also be given for the works to take place in.
What will be considered in the application?
RCT will consider the impact the works may have on flood risk and the environment. We will check if required assessments have been conducted, such as a Water Framework Directive Assessment or an Environmental Impact Assessment (RCT can give general advice on what assessments should be carried out but ultimately it is the Developers responsibility to conduct them).
Compliance with the legislation for which the authority has responsibility for will be considered, including: -
- The Environment Act (1995);
- The Habitats Regulations (2010);
- The Water Framework Directive (2000/60/EC);
- The Eel Regulations (2009);
- The Salmon and Freshwater Fisheries Act (1975); and
- The Countryside and Rights of Way Act (2000).
RCT will also consider if the works takes place on a designated site, including:-
- A Special Site of Scientific Interest (SSSI);
- A Special Area of Conservation (SAC); or
- A Special Protection Area (SPA).
What is the Applicant Responsible for?
The applicant is required to arrange the works do that there is no increase in flood risk to third parties and to ensure they have consent and permission of any land owners and occupiers affected by the works.
Ordinary Watercourse Consent from RCT does not remove from the applicant the necessity for other permits, licences or approvals or permissions. For example, it is the applicant’s responsibility to ensure design and construction is in accordance to the latest Construction (Design and Management) Regulations. It is also the applicants’ responsibility to consult the Countryside Council for Wales (CCW) if there is a protected species on site.
If the Council requires further information to make the decision, it is the applicants’ responsibility to get this to the council in a timely manner, acknowledging that a decision will be made two months on receipt of the complete application. If RCT has insufficient information, consent will not be granted. If the planned works may also affect a main river or the sea, it is the applicants’ responsibility to apply to the Environment Agency for consent as well as RCT.
What is deemed as Consentable and Non-Consentable work?
Check out Appendix A of the Ordinary Watercourse Guidance Here for a list of figures for both consentable and non-consentable activities
What if the works takes place in a Designated Site?
If the works is located in a SSSI (Site of Special Scientific Interest), SAC (Special Area of Conservation) or SPA (Special Protected Area), Rhondda Cynon Taf will consult with the Countryside Council for Wales (CCW).
If however, the works are taking place on a site with protected species, the applicant must contact CCW directly, in case the works require a licence under the protected species legislation.
What Enforcement powers does RCT have?
The aims of flood risk management are to ensure the proper flow of water in a watercourse and over the floodplain; the control of water levels and the security of existing assets. To achieve these aims, enforcement action is used to rectify unauthorized and unlawful actions, using a risk based approach.
When considering enforcement action, RCT will always seek to resolve by negotiation first. Applications are reviewed on an individual basis and there are a range of enforcement actions RCT can take, depending on the severity. Typical methods of enforcement include:
- Site visits and face to face meetings with the perpetrator;
- Sending advisory letters;
- Sending warning letters;
- Using notices to enforce, prohibit or carry out works;
- Prosecution and reclaiming costs of prosecution; and
- Direct remedial action plus recharge of costs of that remedial action.
The enforcement procedure will be carried out under the Land Drainage Act (1991).
Technical Guidance and documents that may be of use
- The Fluvial Design Guide ( from the Environment Agency)
- Culvert Design and Operation Guide (from CIRIA)
Rhondda Cynon Taf encourages the public to take part in discussions with us in advance of the consent application. By having a pre-application discussion, options can be considered that do not require consent that has no adverse affect on the watercourse. If consent is still required, pre-application discussions can ensure that applicants fully understand the requirements and any potential alternative ways of undertaking the works that does not require consent.
For more information on the consenting process, enquiries relating to the consenting process, pre-consent discussions and consent submissions, please contact Rhondda Cynon Taf County Borough Council using the contact details below:
Flood Risk Management
Land Reclamation and Engineering
Highways, Transportation and Strategic Projects
Rhondda Cynon Taf County Borough Council
Telephone: 01443 494809Email: firstname.lastname@example.org