“ The Board will regulate as necessary, using available legislative powers and Byelaws, the activity of others to ensure their actions within, adjacent to, beneath or otherwise impacting the land drainage system do not increase flood risk, prevent the efficient working of the land drainage system, or adversely impact the environment”

The purpose of the Board’s consenting system is to control any activities that could either increase flood risk to land, people or property, deprive others of their use of the water resource or cause harm to aquatic habitats. The land drainage system is almost entirely in private ownership which necessitates an overseeing body to ensure fairness and prevent conflict between stakeholders.

Section 23 consent – Land Drainage Act (1991)

Most works whether temporary or permanent, within any Lesser Sewer, Petty Sewer, or Ordinary Watercourse within the Board’s district require consent under Section 23 LDA (1991). Activities requiring consent include any works with the potential to alter normal flow. Section 23 specifically refers to the construction of dams, weirs, culverts and any other like obstruction to flow in a watercourse. Any other like obstruction includes but is not limited to bridge piers, jetty supports, protruding field drains and drain markers.

Byelaw consent

There are a multitude of activities undertaken by riparian owners & riparian land occupiers, developers, statutory undertakers, utility companies and other authorities which are only permitted with the consent of the Board. Other than Byelaw 3 which applies to all watercourses within the Board’s district, Byelaws only apply to Board adopted Lesser and Petty Sewers.

The following activities require Board Byelaw consent:

• Control of introduction of water and increase in flow or volume of water (Byelaw 3).
• Diversion or stopping up of watercourses (Byelaw 6). This includes the damming, diversion or impediment of a watercourse and also changing the level or direction of flow into or out of any watercourse.
• Obstructions within eight metres of the edge of a watercourse or flood bank when the flood bank is within eight metres of a watercourse (Byelaw 10). This Byelaw exists to maintain Board access for maintenance, inspection and incident response.
• The dredging or raising gravel, sand, ballast or clay etc from the bank or bed of any adopted watercourse (Byelaw 16). This includes desilting works.
• The erection of fences, excavation of trenches or placement of infrastructure (Byelaw 17). This encompasses multiple activities including but not limited to:
• Any type of pipe or duct carrying gas, water, foul, communications cables or power supply either in, over or under any watercourse or through any bank.
• The cutting of turf from any bank, the removal of any stone, gravel, clay, earth, timber or other material whatsoever from the bank or adjoining land that could de-stabilise the bank.
• Cutting any excavation, tunnel, drain, culvert or other passage for water into or out of any watercourse or through any bank of any watercourse.
• Erecting any fence, post, pylon, wall, wharf, jetty, bridge, loading stage, piling, groyne, revetment, or any other structure whatsoever in, under, across or over any watercourse or any bank thereof.
• Placement or fixation of any mechanical contrivance whatsoever in, under or over any watercourse or bank thereof in a manner likely to cause damage to the channel or obstruct the flow of water into or out of the watercourse.

Applying for consent

Application forms are available on request by contacting the office or by downloading from the Board’s website. The completed form along with payment should be returned in duplicate with two sets of supporting documentation. The documentation should include a location plan, and a method statement for the consentable activities including any temporary works. Engineering drawings are also required though in the case of minor works sketches will be accepted provided they are clear, to scale and contain all relevant dimensions and information including materials. Material technical information sheets may also be required in some cases. The Board recommends that pre-application advice is sought by contacting the Board’s office. A pre-application site meeting can be arranged to inform an application and thus speed up the process. There is no charge for this advice or any such site meetings attended. It should be noted that unlike planning permission, Board consent cannot be applied for or granted retrospectively.

Conditioned consent

In some cases consent may be granted subject to conditions that must be discharged before any work commences. Examples are as follows.

Advanced planning of works – Most commonly conditions are applied to applications made for infrastructure works that require planning well in advance of being undertaken. Detailed design and other documentation required by the Board may not exist at the time of application. In such instances the Board will need to approve the design, method statement, any environmental mitigation and have any outstanding technical queries resolved before any work can commence.

Environmental factors – Specific environmental mitigation conditions may be imposed if a proposal is likely to result in permanent loss of habitat, the disturbance or damage of protected habitats or the disturbance or harm of protected species. The Board may stipulate that some works can only be carried out once a site has had an ecological survey and in some cases that works are carried out under the supervision of a qualified ecologist. IDBs are designated as a section 28G authority or ‘Operating Authority’ under the Countryside and Rights Of Way Act 2000 (CROW). As a result, for some works within or near to a Site of Special Scientific Interest (SSSI) or a Natura 2000 site (European designated site) the Board must consult with Natural England. This could result in conditions being applied for mitigation or material amendments to proposals if Board officers are instructed to by Natural England. In extreme cases where mitigation was not viable Natural England could call for refusal of consent.

Flood risk management – There are numerous reasons for applying a flood risk management condition. Applications often require temporary in-channel works to enable the damming and dewatering of a section of watercourse. The standard condition in this instance requires an appropriate over pumping system to be available and that dams are removed and works abandoned at the Board’s behest.

Legal requirements – In some cases statutory requirements and payment of financial contributions may also be subject to conditions as in the case of the Board adopting Ordinary Watercourses for commuted sums and for Surface Water Development Contributions (SWDC). Evidence of formal agreements between riparian owners may also be required for certain types of works occurring on riparian boundaries.

It should be noted that were work to commence without the discharge of the conditions that the works would be classed as unconsented and potentially subject to enforcement proceedings.

Implementation timescales

Consents granted by the Board are subject to the approved works being started within two years. In cases of changes of tenure prior to approved works commencing, the Board recommends that any person wishing to undertake work that was previously consented to another party contacts the Board before commencing the works.

Approval or refusal of consent

Once the application has been made and all supporting information requested by Board officers has been submitted the Board has two months to decide the application. Applications are not deemed valid until payment has been made and all supporting information necessary for Board officers to consider the nature and impact of the proposed works has been received. Any technical queries raised by Board officers during the process must have been closed out for an application to be valid also.

It should be noted that applying for consent does not absolve the applicant from the duty of applying for and obtaining any licence, permit, authorisation, consent, approval or permission which may be required for the works from any other person, or from any other authority. It is the applicants responsibility to ensure that any other relevant permissions etc are in place prior to commencing the activity.

Right of appeal

If an applicant is aggrieved by refusal of a consent or believes that consent has been unreasonably withheld the applicant should firstly make their representation in writing to the Board and clearly state why they believe the application should be reconsidered. If the Board uphold the refusal the applicant may have the matter referred for determination by arbitration to a single arbitrator to be agreed by the parties or, failing such agreement to be appointed by the President of the Institution of Civil Engineers.

Undertaking works without consent / unconsented works

If a person undertakes works in contravention of Section 23 of the Land Drainage Act 1991 or acts in contravention of, or fails to comply with a Byelaw made under Section 66 of the Land Drainage Act 1991, he/she renders themselves liable on conviction to a fine not exceeding level 5 on the standard scale and to a further fine not exceeding £40 for every day on which the contravention or failure is continued after conviction. Apart from making the offence the subject of a prosecution, the Board may take such action as may be necessary to remedy the effect of the contravention or failure and may recover the expenses reasonably incurred by them in so doing from the person in default.