Risky business: building on a flood plain

Everyone likes a river view, but building near water can have unexpected challenges! Even when the river itself is out of sight, any development on a flood plain can have potential environmental impacts on drainage and flooding – an increasing concern in the context of climate emergency. A failure to obtain planning permission for development on a flood plain can have far wider consequences than you may anticipate. In certain circumstances, it may even send you to prison. So, what planning requirements should developers be aware of when proposing to build on a flood plain, and what are the potential consequences of failing to comply with them?

As well as dealing with the practical impacts of building on a flood plain, and considering the need for planning permission, developers need to be aware of the potential engagement of the Environmental Permitting (England and Wales) Regulations 2016/1154 (the Regulations) which apply to flood risk activities. The Regulations set out the circumstances in which it is necessary to obtain an Environmental Permit before carrying out an activity. Breaches of the Regulations can be a criminal offence.

Luckily for developers, in some circumstances obtaining planning permission for the development transforms what would have been a “regulated facility” under the Regulations into an “allowed activity” such that no Environmental Permit is required. This is because potential flooding issues can be dealt with as part of the planning process and should be managed by the planning conditions.

This does more than avoiding an administrative burden of obtaining and complying with a second consent. The correct planning permission for works on a flood plain can be a “get out of jail free” card. If works are carried out on a flood plain without either a planning permission or an Environmental Permit, both contractors and developers could face criminal charges with sanctions including unlimited fines and up to two years in prison. Individual directors can be prosecuted alongside the companies involved where they have failed to check what consents were required. Any rent or sale proceeds received from the development could be confiscated as the proceeds of crime.

Major developments typically require various consents from planning permission to highways licences to environmental permits. Different aspects are controlled by different regimes and ensuring that you have the correct permissions to build and then use the development can require ongoing input from engaged legal and consultant teams. It is helpful when one consent negates the need for another, but more usually the requirements overlap instead. Missing permits can cause considerable project delays.

Author: Rebecca Butterworth, associate, planning, London

For further information please contact:

Rebecca Butterworth
Rebecca Butterworth
Associate, planning, London
+44 20 7466 2437
Julie Vaughan
Julie Vaughan
Senior associate, environment, London
+44 20 7466 2745

The Great Repeal Bill: What will this mean for environmental legislation?

Authors: Julie Vaughan, Senior Associate, Environment and Helena Thompson, Associate, Planning and Environment, London

On 2 October 2016, Prime Minister Theresa May announced at the Conservative Party's annual conference that all existing EU law – and therefore, environmental law – will be kept when the UK leaves the EU.  A "Great Repeal Bill" will be announced in the next Queen's Speech, to repeal the European Communities Act 1972 ("ECA") with effect from our exit of the EU. The ECA gives effect to EU law within the UK, provides for its supremacy over UK law where the two conflict, and provides the enabling powers to make secondary legislation to implement EU Directives. May has stated that when the ECA is repealed, all EU law will no longer have effect in the UK, and the existing EU law will be converted into domestic law ("Converted EU Legislation").

It wasn't clear from May's speech exactly how EU law will be converted. Directly applicable EU law (i.e. EU Regulations) could be deemed, rewritten, or copied into, primary legislation; and UK secondary legalisation implementing EU Directives will be saved by various means.  However, the intent is that all EU environmental law will in some manner continue to have effect in the UK. May stated that Parliament will be able to amend, repeal or improve the Converted EU Legislation, and David Davis added that the Great Repeal Bill would include powers for ministers to make some changes by secondary legislation, causing alarm in some quarters that substantive changes could be made without full Parliamentary scrutiny. However, the power to make environmental legislation is devolved to the regions – Scotland, Wales and Northern Ireland – and it is unclear how the Great Repeal Bill will deal with the devolved powers.

Important questions remain unanswered (discussed below in this post):

1. How will we interpret Converted EU Legislation?

2. How will references to EU legislation, guidance or bodies be dealt with in the Converted EU Legislation?

3. Are we stuck with EU legislation at the point of Brexit?


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