Under the Flood and Water Management Act (2010), the responsibility for authorising consent to works and carrying out enforcement action in relation to ordinary watercourses has transferred from the Environment Agency to Calderdale Metropolitan Borough Council (the Lead Local Flood Authority).
If you wish to undertake certain types of work on a watercourse then you need permission from the appropriate body. If the watercourse is classed as a main river you need to apply for Flood Defence Consent from the Environment Agency.
Ordinary Watercourse Consent Definitions
A number of terms are frequently encountered when dealing with ordinary watercourse consent.
Land drainage is the disposal of rainwater, achieved by a combination of watercourses of various types.
A watercourse includes all rivers and streams and all ditches, drains, cuts, culverts, dikes, sewers other than public sewers within the meaning of the Water Industry Act 1991 and passages, through which water flows. It is not required for water to flow through the watercourse at all times for it to be considered as a watercourse.
Main rivers are normally the major watercourses in an area. Main rivers are marked as such on main river maps held by the Department for Environment, Food and Rural Affairs (Defra) and are available from the Environment Agency. The term main river includes any structure or appliance, in the bed, channel or bank, for controlling or regulating the flow of the main river.
An ordinary watercourse is a watercourse that is not part of a main river and includes rivers, 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. It is not required for water to flow through the watercourse at all times for it to be considered as an ordinary watercourse.
A culvert is a covered channel or pipe designed to prevent the obstruction of a watercourse or drainage path by an artificial construction.
A mill dam is a dam constructed in a stream to raise the water level sufficiently for it to turn a wheel.
A weir is a dam built across a river to raise the level of water upstream or to regulate its flow.
Ordinary Watercourse Consent Guidance
Prior to 6th April 2012 certain works, as defined by the Land Drainage Act 1991, to an ordinary watercourse required consent from the Environment Agency. The Flood and Water Management Act (2010) amended the Land Drainage act (1991) resulting in flood risk from ordinary watercourses being managed at the local level. Since 6th April 2012, under sections 23 and 24 of the Land Drainage Act (1991), the Council has been responsible for the management of ordinary watercourse regulation.
Works to ordinary watercourses that require consent are those:
- likely to cause an obstruction to flow, restrict storage or those that involve erecting a culvert.
- that will cause changes to obstructions (dams, weirs, culverts or other like obstructions) already in place will also need consent from the council regardless of planning permission or other consents you may already have.
- temporary works/structures that will include placement of sand bags or cofferdams used to create a dry working area, or any objects or materials that will be removed at a later date that interfere with or change the flow of water in a watercourse.
When considering if the works in question require consent, it is useful to consider if the works would affect the flow of the watercourse when it is full to the top of the bank. If the works will affect the flow of the watercourse when it is full to the top of the bank then such works will need consent from the Council.
Consent will be refused if the works are poorly designed, result in an unmanageable increase in flood risk or pose an unacceptable risk to nature conservation or the environment. Incomplete applications will also be refused. Consents may have conditions applied to them, for example to carry out works at a certain time of year in order to reduce flood risk and potential ecological damage. Any Land Drainage Consent given is typically valid for a period of up to a maximum of three years. The applicant must ensure any contractor(s) appointed to carry out the works are fully aware of the consent and its conditions.
Applying for Ordinary Watercourse Consent
It is recommended to contact the Flood Risk Team in advance of applying for consent. You can contact us on the following details:
Contacting us in advance will help determine if consent is required, decide whether alternative methods should be implemented and ensure that your application is completed correctly. Please note that the application fee is £50.00 per structure/operation or temporary works event. For example, if the proposal is for two separate culverts, then the application fee would be £100.00 (£50.00 x 2 structures).
When considering an application for ordinary watercourse consent the Council will consider a number of factors including but not limited to:
- necessity of the structures/works proposed;
- proof that the proposed works will not have a detrimental effect on flood risk, surrounding habitat and environment or on fauna and flora species present;
- adequate mitigation measures where risk to the above cannot be avoided;
- consideration of health and safety risks and the proposal of adequate measures to manage such risks;
- clear detail on who will have responsibility for maintenance during and post construction;
- where the applicant is proposing a culvert, prove that reasonable and practicable alternative methods have been considered and cannot be utilised.
Once a fully completed application form including all relevant documents and the correct fee have been submitted, the Council will have up to 2 months to issue a written confirmation detailing whether consent has been granted or refused. The applicant is responsible for obtaining the necessary permits or permissions prior to works commencing.
An application pack can be downloaded from the link below. Prior to completing the application form, please read through the document titled ‘Application Form Guidance Notes’ which can also be found below. Please ensure sufficient additional information, including all necessary supporting documents, is submitted with your application.
The aims of enforcement action in flood risk management are to ensure the proper flow of water in a watercourse and over the floodplain as well as the control of water levels and the security of existing assets. To achieve these aims, the Council will use enforcement action to rectify unlawful and damaging or potentially damaging work, always implementing a risk based approach.
Enforcement action (not necessarily criminal sanction) may be taken where damaging or potentially damaging works have been undertaken without consent or are in contravention to an issued consent. Please note in the case of works undertaken without consent, and where the Council deems that consent would have been required, works cannot be retrospectively consented. In these cases we will normally take action to see the ordinary watercourse is put back to the condition it was in beforehand. Examples of enforcement action include but not limited to:
- site visits and face to face meetings with parties concerned;
- sending advisory letters;
- sending warning letters;
- using notices to enforce, prohibit or carry out works;
- prosecution and reclaiming costs of prosecution;
- direct remedial action plus recharge of costs of remedial action.
Failure to obtain Ordinary Watercourse Land Drainage Consent prior to carrying out works may be a criminal offence. Any person acting in contravention of Section 23 of the Land Drainage Act 1991, may be liable, on conviction, to a fine of up to £5,000, and to a further fine of up to £40.00 for every day on which the contravention is continued after conviction.
Under Section 24 or of the Land Drainage Act 1991, the Council has the power (without prejudice to any other criminal proceedings) to take necessary action in order to remedy the effect of a contravention or failure to obtain consent, and to recover the expenses reasonably incurred by it from the party in default.
If you have noticed works to an ordinary watercourse, you can contact us to determine whether the works required consent and whether an application for consent was made, or not.