Ordinary Watercourse
February
2015
Enforcement
Protocol
An explanation of our protocol regarding administration of Powers under
Section 24 and Section 25 of The Land Drainage Act (1991). Endorsed by the
Essex Flood Management Partnership Board – January 2015
Contents
1. Flowchart outlining enforcement procedure under S24 Land Drainage Act 1991 (relating
to un-consented changes to ordinary watercourses)
2. Flowchart outlining enforcement procedure under S25 Land Drainage Act 1991 relating
to maintenance activities to ensure the proper flow of ordinary watercourses
3. Procedure for Written Consent Under S23 Land Drainage Act (1991)
4. Enforcement Procedure relating to un-consented changes to ordinary watercourses
under S24 Land Drainage Act 1991
5. Enforcement Procedure relating to maintenance activities to ensure the proper flow of
ordinary watercourses under S25 Land Drainage Act 1991
6. Land Drainage Officers Powers of Entry under S64 Land Drainage Act 1991
1. Flowchart outlining enforcement procedure under S24 Land Drainage Act 1991 (relating to un-consented changes
to ordinary watercourses)
NUISANCE REPORTED
1. Is there an obstruction?
2. Visit site and record observation/photos
3. Are receptor and harm thresholds met?
Confirmation of ownership
If not confirmed then issue requisition for
information under S14 FWMA 2010
Essex County Council takes formal position
on riparian responsibility and records how
decision is reached
Once confirmed, write to responsible
person explaining breach and remedy
Enter into informal discussions with
persons considered responsible
Matter resolved informally
Responsible person fails to respond
FORMAL LETTER ISSUED
Confirming the action required to be taken
by the responsible person
Reply received
No response
Matter concluded/signed off in writing
Matter not resolved
PAPERS TO LEGAL
Inform that Essex County Council will be
undertaking remedial works and when.
After the required time, Essex County
Council to complete works.
Consider issuing formal notice. Decision to
be recorded with reasons
NOTICE ISSUED
NOTICE SERVED
Notice complied with and compliance
checked with site visit
Notice not complied with
Matter concluded/signed off in writing
Consider whether prosecution is
appropriate or remedy the breach and
reclaim costs. Reasons for decision
recorded
Decision made to carry out works and
recover costs
Decision to prosecute
Work remains outstanding
Write to responsible person informing
them of breach and our intentions to
remedy (include costs and allow a final
reasonable deadline to comply)
Work undertaken by responsible person
NB Power of Entry
PAPERS TO LEGAL
Still in breach
Site Inspection
civil debt recovery
Matter concluded/signed off in writing
2. Flowchart outlining enforcement procedure under S25 Land Drainage Act 1991 relating to maintenance activities
to ensure the proper flow of ordinary watercourses
IMPEDIMENT REPORTED
1. Is impediment due to subsidence – if yes then Policy not applicable.
2. Visit site record observations/take photos.
3. Are receptor and harm thresholds met?
Confirmation of ownership
If not confirmed then issue requisition for
information under S14 FWMA 2010
Essex County Council takes formal position
on riparian responsibility and records how
decision is reached
Once confirmed, write to responsible
person explaining breach and remedy
Responsible person fails to respond
Enter into informal discussions with
persons considered responsible
Confirming the action required to be taken
by the responsible person
FORMAL LETTER ISSUED
Matter resolved informally
Reply received
No response
Matter concluded/signed off in writing
Matter not resolved
Consider issuing formal notice. Decision to
be recorded with reasons
1. Notify EA of intention to serve notice
2. Owners consent to be obtained prior to service of notice if served on someone other
than owner or occupier
3. English nature notified if criteria SSSI’s met.
PAPERS TO LEGAL
Inform that Essex County Council will be
undertaking remedial works and when.
After the required time, Essex County
Council to complete works.
NOTICE ISSUED
NOTICE SERVED
Notice complied with and compliance
checked with site visit
Notice not complied with
Matter concluded/signed off in writing
Consider whether prosecution is
appropriate or remedy the breach and
reclaim costs. Reasons for decision
recorded
Decision made to carry out works and
recover costs
Decision to prosecute
Work remains outstanding
Work undertaken by responsible person
NB Power of Entry
PAPERS TO LEGAL
Write to responsible person informing
them of breach and our intentions to
remedy (include costs and allow a final
reasonable deadline to comply)
Still in breach
Site Inspection
civil debt recovery
Matter concluded/signed off in writing
3. Procedure for Written Consent Under S23 Land
Drainage Act (1991)
Please refer to the current ECC culvert policy which must be read in conjunction with this
procedural document.
Upon an application for consent being received together with the necessary fee to alter an
ordinary watercourse by erecting or altering any mill, dam, weir or other structure; or to
erect or alter a culvert. ECC will adopt the following approach;
1. Upon the correct application being filed and the relevant fee paid, officers will
consider whether the work proposed is likely to affect the flow of an ordinary
watercourse.
(see https://www.essex.gov.uk/Environment%20Planning/EnvironmentalIssues/local-environment/flooding/Watercourse-regulation/Pages/Default.aspx for
Application Form and Guidance Documents)
2. In order to do this officers will evaluate the ordinary watercourse and the works
proposed by way of a desk study and by utilising the Watercourse consent checklist.
3. If the work proposed does not alter the flow of an ordinary watercourse, then
consent is not required.
4. If the work proposed does alter the flow of an ordinary watercourse then the officer
must consider whether there are any reasonable conditions which can be imposed
which would prevent such an occurrence.
5. Officers should detail any conditions proposed and state the reasons for such
conditions in the Ordinary Watercourse Written Consent.
6. If the officer is satisfied that such conditions are appropriate and reasonable, the
application should be granted subject to those conditions.
7. If the officer is of the view that the works would alter the flow of an ordinary
watercourse, and that there are no conditions which could be attached to prevent
this, then the application should be refused and this should be recorded in the
standard refusal letter together with reasons for the decision.
Note: Persons have 6 months to re-apply with an amended design.
8. ECC will provide written decisions to all applications within 2 months of receiving the
relevant fee.
9. If ECC does not provide a written decision within 2 months as detailed above, then
consent to the works will be presumed.
10. ECC cannot unreasonably withhold consent. If an issue is raised pertaining to this,
then ECC and the applicant can agree on the instruction of a single arbitrator to
determine the matter.
11. If a single arbitrator cannot be agreed them the President of the Institute of Civil
Engineers can appoint an arbitrator.
4. Enforcement Procedure relating to un-consented
changes to ordinary watercourses under S24 Land
Drainage Act 1991
Any obstruction erected or raised or otherwise altered, or a culvert erected or altered in
contravention of S23 of Land Drainage Act 1991 shall constitute a nuisance. Upon receiving
information about the possible existence of such nuisance the following procedure will
apply:
1. Essex County Council officers will investigate the site concerned in order to establish
whether a nuisance has occurred.
2. If officers are not able to properly assess the situation without gaining entry onto
private property then authorised officers are entitled to follow the Land Drainage
Officers Powers of Entry Procedure.
3. If upon inspection it appears to the officer concerned that there is an imminent and
serious risk of harm to a receptor as defined in the policy then the officer should
take reasonable action to minimise the risk but should not expose themselves to any
risk to their personal safety.
4. If after assessing the site, officers are of the view that a nuisance has occurred,
officers will ascertain the identity of the relevant person to whom the Council may
consider issuing a notice. The relevant person will be:
i.
ii.
iii.
Any person having control of the part of the watercourse where any
impediment occurs; or
Any person owning or occupying land adjoining that part; or
Any person to whose act or default has impeded the condition of the
watercourse.
Unless the Council receives satisfactory proof to the contrary to the contrary the
Council will determine riparian ownership for the purpose of taking enforcement
action as follows:



Where both banks of a watercourse are in the same ownership, riparian
responsibility will be for the full width of the watercourse.
Where opposite banks of a watercourse are in different ownership, riparian
responsibility will be up to the centre line of the watercourse
Where one bank of a watercourse is adjacent to a highway we will assume
that the owner of the opposite bank has riparian responsibility for the full
width of the watercourse since the local highway authority has no legal
ownership of highway land.
5. If officers are unable to ascertain the identity of the relevant person they may
consider making a formal requisition for information under S14 Flood and Water
Management Act 2010.
6. Once ownership/ control of the land has been established, the officer will write to
the riparian landowner outlining the reasons for concerns and request a meeting to
discuss the breach. Further information on riparian ownership will be sent with this
request.
7. A meeting will take place to discuss the breach with the riparian owner thereby
affording the officers the opportunity to explain how the breach can be remedied,
and an action plan agreed. Any action plan, including timescales will be confirmed in
writing after such meeting and sent to the relevant person within 7 days.
8. If the riparian landowner fails to respond to the written request to discuss the
breach, a reminder letter should be sent 14 days after the first letter, requesting a
response.
9. If the Riparian Landowner fails to respond to either letters or fails to meet or cooperate with the officer then the officer must consider whether a formal notice
should be served upon the Landowner.
10. A notice may only be served upon the person who has caused the obstruction and
has power to remove it. If there is no such person (or such person cannot be traced)
then it will be served on the person who has power to remove the obstruction.
11. The decision to serve a notice will be made by a Council officer authorised for this
purpose. If a decision is made to issue a Statutory Notice, the Notice will allow a
reasonable time in which to remedy the breach and explain the consequences of
failing to comply.
12. If the relevant person who will be required to complete the works is not the owner
or occupier of the land, officers will obtain consent of the owner and the occupier of
the land by letter before serving a Notice.
13. If by the expiry of the required time specified in the notice, the work remains
outstanding, consideration will be given as to whether a prosecution is appropriate
and/ or whether the work should be carried out and costs recouped from the
Riparian Landowner.
14. A person acting in contravention of or failure to comply with any notice served shall
be guilty of an offence and liable on summary conviction to a fine not exceeding
level 5 (currently £5000). For every day after conviction that the contravention or
failure continues, the riparian landowner will also be liable to a daily fine of up to
£40.
15. If a prosecution is deemed appropriate the information will normally be laid before
the court within 6 months of the date stipulated in the notice for compliance.
16. In addition to (or as an alternative to) a prosecution as outlined above, the Council
may decide to undertake such action as may be necessary to remedy the effect of
the contravention or failure, with a view to recouping the costs from the responsible
person.
17. Before taking such action as outlined in paragraph 16 above officers will write to the
riparian landowner(s) informing of the Council’s decision and detailing the likely
work and costs likely to be incurred and recovered by the Council should such work
be carried out.
18. Officers will inform the riparian landowner(s) that they may remedy the breach
themselves and allow for a reasonable period of time in order for them to obtain
alternative quotations from alternative contractors. The amount of time allowed will
depend upon the circumstances of the case.
19. If the period allowed has lapsed and the contravention or failure still exists officers
may remedy the breach (see Powers of Entry Guidance for Land Drainage Officers).
20. Once the breach is remedied the Council may then seek to recover the expenses
reasonably incurred as a result of remedying the situation from the person in
default.
5. Enforcement Procedure relating to maintenance
activities to ensure the proper flow of ordinary
watercourses under S25 Land Drainage Act 1991
Upon receiving information that an ordinary watercourse is in such a condition that the
proper flow of water is impeded, then, unless the condition is attributable to subsidence
due to mining operations, the following procedure will apply:
1. Essex County Council officers will visit the site with a view to assessing whether
the ordinary watercourse is in such condition that the proper flow is impeded.
2. If upon inspection it appears to the officers concerned that there is an imminent
and serious risk of harm to a receptor as defined in the policy then the officers
will take reasonable action to minimise the risk, .
3. If after assessing the site, officers are of the view that the condition of the
ordinary watercourse is impacting on the flow of water then the officer will
ascertain the identity of the relevant person to whom he may consider issuing a
notice. The relevant person will be:
iv.
v.
vi.
Any person having control of the part of the watercourse where any
impediment occurs; or
Any person owning or occupying land adjoining that part; or
Any person to whose act or default has impeded the condition of the
watercourse.
Unless evidence is provided to the contrary or unless by other agreement the officer
will determine the extent of riparian ownership as follows:



Where a watercourse coincides with a private boundary owned by the same
individual on both sides riparian responsibility will be for the full width of the
watercourse.
Where a watercourse coincides with a private boundary owned by two
separate individuals riparian responsibility will be up to the centre line of the
watercourse
Where a watercourse coincides with a public boundary and publicly
maintainable highway riparian responsibility will be for the full width of the
watercourse.
4. If officers are unable to ascertain the identity of the relevant person, officers
should consider making a formal requisition for information under S14 Flood and
Water Management Act 2010.
5. Once ownership has been established the officer will write to the relevant person
in the first instance explaining the breach and clearly indicating the nature of the
works to be carried out allowing a reasonable timescale. What is deemed a
reasonable timescale will depend on the circumstances of the case. The letter
will also be sent to riparian landowner(s) and will suggest that a meeting is held
6. If the offer of a meeting is accepted it will afford the officers the opportunity to
explain to the riparian landowner how the breach can be remedied, and an
action plan agreed. Any action plan, including timescales will be confirmed in
writing after such meeting and sent to the relevant person within 7 days.
7. If the work is not completed within the timescale specified with the letter or in
accordance with a revised timescale agreed with the Council)and upon an officer
visiting the site and recording that the work remains outstanding the officer
should seek authorisation to issue an Enforcement Notice.
8. A notice may only be served upon the person who has caused the obstruction
and has power to remove it or by the person who has power to remove the
obstruction.
9. The Enforcement Notice will clearly indicate the nature of the works to be carried
out and the period within which this must be completed. The notice will also
inform the recipient of the right of appeal to a Magistrates Court and the period
within which such an appeal may be brought.
10. If the relevant person identified to complete the works is not the owner or
occupier of all the land affected, officers must not serve the notice unless and
until they have obtained consent of the owner and the occupier of the land
before serving an Enforcement Notice. Officers will write to the owner and
occupier of the land asking them to confirm consent.
11. Officers will revisit the site if no appeal has been lodged within 21 days of service
of the Notice and after the expiration of the period given in the notice to remedy
the contravention to ascertain whether there has been compliance with the
Notice.
12. If the Notice has not been complied with consideration will be given as to
whether the breach will be prosecuted and/or the breach remedied with a view
to reclaiming the costs from the riparian owner.
13. If the decision is made to prosecute and a conviction, secured such matter carries
a maximum penalty of a £2500 fine. If a prosecution is deemed appropriate then
Essex Legal Services should be instructed promptly so as to allow court
proceedings to be started within 6 months of the date stipulated in the notice for
compliance.
14. If the decision is made that ECC will remedy the breach, the Officer will write to
the person served with the notice explaining that they are in breach of the Notice
and as a result the Council will be undertaking the works with a view to
reclaiming the costs from them. Such letter will include the details of the costs to
be incurred by the Council and likely to be recovered from the relevant person
were it to remedy the breach, allowing the relevant person a reasonable period
of time in which to obtain alternative quotations and to consider whether they
wish to remedy the breach themselves.
15. If the relevant person fails to respond to this letter within the required time and
the relevant person has not remedied the impediment then the Council may
undertake the necessary work.
16. Upon conclusion of the necessary work the Council may seek to recover the costs
of that work from the riparian owner under the civil debt procedures by way of a
County Court Order.
17. If the riparian owner undertakes the works themselves, upon completion of such
works, the officers shall visit the site and confirm that the work is of a
satisfactory standard. If the work is not of a satisfactory standard the officers
shall explain why the work is not of such a standard and give guidance as to what
needs to be done in order to make it so, allowing a reasonable time for this to be
completed.
18. If after the work takes place it still remains a flood risk as defined within the
policy, then officers should warn the riparian owner that the if the work is not
remedied within a reasonable time then enforcement action will commence.
6. Land Drainage Officers Powers of Entry under S64 Land
Drainage Act 1991
1. The Head of Planning and Environment may authorise officers to enter land.
Authorised Officers will carry their identification cards at all times in order to satisfy
persons that they are acting as authorised by the Council as Lead Local Flood
Authority (LLFA) under the Land Drainage Act 1991 (LDA 1991).
2. Subject to giving any necessary prior notice, Authorised Officers may enter land for
the purpose of exercising any functions of the Council as LLFA as prescribed under
the LDA 1991. Officers may enter land where necessary for any of the following;
i.
ii.
iii.
iv.
enter and survey any land (including the interior of any mill through which
water passes or in connection with which water is impounded)
take levels of the land
inspect the condition of any drainage work on the land
carry out any works in line with the ECC Enforcement Policy
3. An authorised officer may take with him any other persons and such equipment as
may be necessary in the furtherance of exercising any function as prescribed by the
LDA 1991.
4. If an Officer enters land which is unoccupied, officers shall on leaving ensure that it is
as effectively secured against trespassers as he found it.
5. Except in an emergency, officers seeking to enter land under S64 LDA 1991 must first
give 7 clear days, notice of the intended entry to:
i. the occupier of the land and
ii. such notice shall stipulate if there is a requirement for the use of heavy
equipment to be brought onto the land.
Such notice shall be served by first class post or by leaving it their address or by
personal service.