South Kinross Flood Protection Scheme
Perth and Kinross Council · 4 December 2024
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Perth And Kinross Council Council Committee 4 December 2024 SOUTH KINROSS FLOOD PROTECTION SCHEME Report by Strategic Lead – Environment and Infrastructure (Report No. 24/346) 1. PURPOSE 1.1 This report provides an update on the progress of the South Kinross Flood Protection Scheme and proposes that the Council takes a preliminary decision under the Flood Risk Management (Scotland) Act 2009 to confirm the proposed Scheme without modification. 2. RECOMMENDATIONS 2.1 It is recommended that Council: (i) Notes the valid objections and the Environmental Impact, as outlined in this report; (ii) Makes a preliminary decision to confirm the proposed South Kinross Flood Protection Scheme without modification as outlined in this report; and (iii) Authorises the Strategic Lead - Environment and Infrastructure to carry out all necessary steps to progress the statutory process, including: a) Giving notice of the preliminary decision to confirm the Scheme to those landowners who submitted an objection and to the Scottish Ministers; b) Participating in a public local enquiry or to arrange a local authority hearing as directed by the Scottish Ministers. c) Bringing a further report to Committee once b) has been concluded. 3. STRUCTURE OF REPORT 3.1 This report is structured over the following sections: • Section 4: Background/Main Issues • Section 5: Proposals • Section 6: Conclusion • Appendices
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4. BACKGROUND / MAIN ISSUES 4.1 The approach to tackling flooding in Scotland has changed in recent years. Under the Flood Risk Management (Scotland) Act (the 2009 Act), SEPA and lead local authorities publish Flood Risk Management (FRM) Plans and Local FRM Plans. These documents set out a range of actions that SEPA and responsible authorities will take to manage and, where possible, reduce the risk of flooding over the following six-year period. 4.2 Although public authorities are expected to take a proactive role in managing and, where achievable, lowering flood risk, the primary responsibility for avoiding or managing flood risk still remains with land and property owners. The 2009 Act does not alter this. Individuals, businesses and communities must, therefore, play a critical role in making themselves more resilient and helping to reduce the impact of flooding. 4.3 The Climate Change & Sustainability Committee approved the publication of the updated (or Cycle 2) Forth Estuary Local FRM Plan on 19 December 2022 (Report 22/307 refers). The published Forth Estuary Local FRM Plan can be viewed at the following link: http://www.pkc.gov.uk/frmplans 4.4 Since the publication of the FRM Plans and Local FRM Plans, the Council has been moving forward with the implementation of the actions set out therein. 4.5 The 2009 Act provides local authorities with discretionary powers to promote new flood protection schemes. Only those flood schemes which have been included in the published FRM Plans, the Local FRM Plans, and the national priority list will be taken forward in each six year period. 4.6 One of the key actions included within the Forth Estuary Local FRM Plan is to implement a flood protection scheme in South Kinross. The flood scheme was included as the 28th highest scheme on the national priority list. 4.7 The Scheme, therefore, attracts capital grant assistance. In general, the Scottish Government will provide 80% of the project cost (at tender stage) with the Council contributing the remaining 20%. 4.8 The Scottish Government and COSLA have set a funding deadline for flood protection schemes. All Cycle 1 flood schemes must have a contractor appointed by 31 March 2026 to continue to attract capital grant assistance. However, Schemes that are subject to objection/s will not be disadvantaged from the point a preliminary decision is notified to Scottish Ministers. The clock will stop at this stage until the conclusion of either a public local enquiry or local authority hearing; a contractor will only need to be appointed as soon as practicable after the valid objections have been addressed. Flood Risk Management in South Kinross 4.1 Kinross is located in the River Leven catchment within Potentially Vulnerable Area (PVA) 02/10/03.
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There are three watercourses in this area - the South Queich, the Gelly Burn and the Clash Burn – which all flow into Loch Leven to the east. There has been a history of flooding in the town, and it is estimated that 194 businesses and residential properties are currently at risk of flooding. 4.2 Perth and Kinross Council engaged consulting engineers to investigate and promote a flood protection scheme for South Kinross. The progress of the Scheme has been periodically reported to the former Environment, Enterprise and Infrastructure Committee and more recently the Environment and Infrastructure Committee. A full list of relevant committee papers is provided at the end of this report. 4.3 On 27 November 2023, the Council’s Climate Change & Sustainability Committee was provided with an update on the progress of the South Kinross Flood Protection Scheme (Report 23/332 refers). Amongst other matters, the Committee approved that: i) The recommended proposals were adopted as the Council’s preferred flood scheme ii) The recommended scheme be published under the Flood Risk Management (Scotland) Act 2009 and, subject to obtaining statutory approval and funding remaining in place, progress to detailed design and construction. Preferred Flood Scheme 4.4 The preferred scheme involves the construction of flood walls and embankments along the South Queich, culvert improvements on the Clash Burn and a flood storage embankment adjacent to the M90 motorway services at Turfhills. Property flood resilience measures will be adopted for a small number of properties next to Loch Leven. 4.5 The preferred scheme has been designed, as a minimum, to protect existing properties up to the predicted 1 in 200-year flood event (the flood that has a 0.5% chance of occurring in any one year). 4.6 A plan of the preferred flood scheme is shown in Appendix A and as published, can also be viewed on the Council’s website at https://www.pkc.gov.uk/southkinrossfloodschemedocs 4.7 A public exhibition was held in Kinross on 28 September and 5 October 2023 and the local community was invited to view details of the flood scheme proposals and record their views. A total of 41 people attended the public exhibition, and 12 comment forms were submitted. The response to the community public exhibition was generally positive with the majority of the community being supportive of the proposed outline design for the flood scheme. Further details are provided in the Section 4 of Annex in this report.
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Scheme Publication 4.8 The notice for the South Kinross Flood Protection Scheme was published under the Flood Risk Management (Scotland) Act 2009 on 26 March 2024. 4.9 Those affected by the Scheme were notified and information (including an Environmental Impact Assessment Report (EIAR)) was made available for public inspection on 26 March 2024. The 2009 Act requires that a period of 28 days from the date of publication is allowed for objections; this period being slightly increased to 30 days in relation to the EIAR. It is important to note that late objections can still be submitted where it is ‘reasonable’ for the objection to be made after the deadline. 4.10 Two valid objections and three submissions were received. The three submissions were from statutory consultees providing technical advice on the EIAR and outlining any future environmental requirements or considerations. The objections (both from landowners) were received by the Council within the 28-day period. 4.11 Officers have held extensive discussions with the two landowners, but their objections have not been withdrawn. 5. PROPOSALS 5.1 As stated above, the Council has received two valid objections to the South Kinross Flood Protection Scheme. Therefore, the Council must make a decision under Paragraph 5 of Schedule 2 of the Flood Risk Management (Scotland) Act 2009 to either: - a) Confirm the proposed Scheme without modification, b) Confirm the proposed Scheme with modifications, or c) Reject the proposed Scheme. 5.2 Prior to making the above decision, the Council must consider: - a) the valid objections – these can be viewed in Appendix B. b) The scheme’s environmental impact as set out within the EIAR. The EIAR is available online at https://www.pkc.gov.uk/southkinrossfloodschemedocs 5.3 It is proposed that the Council make a preliminary decision to confirm the proposed Scheme without modification. Once the preliminary decision has been made, the Council is required to notify every person who submitted an objection and the Scottish Ministers. 5.4 Within 28 days, the Scottish Ministers will advise the Council if they will ‘consider’ the proposed Scheme (note that this period may be extended). If this proves to be the case, then a public local enquiry will be held. If not, then the Council will be required to hold a local authority hearing.
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5.5 This will either result in the Scottish Ministers or the Council taking a further final decision to either: a) Confirm the proposed Scheme without modification, b) Confirm the proposed Scheme with modifications, or c) Reject the proposed Scheme. 5.6 A notice of the final decision must be given to every person originally notified when the scheme was ‘published’, every relevant objector, and as otherwise required by the 2009 Act. 5.7 A period of 6 weeks is then allowed for an appeal to be lodged by any person affected by the confirmed Scheme. If no appeals are lodged, the Scheme would become operative after this 6-week period. If an appeal is lodged this would be presented to the Sheriff Court for litigation. The estimated timescale for the process to be concluded would be approximately 4-5 months from the date an appeal was lodged. It is anticipated that an appeal would be generally limited in scope to incorrect factual material or errors in law. 5.8 Subject to the Scheme being confirmed, consulting engineers will commence the necessary detailed design work. Opportunities will be sought to offset the delays addressing objections by undertaking limited detailed design work as soon as practicable. Construction is anticipated to commence beginning 2027 (earlier if possible), assuming no further delay to the statutory process and the detailed design programme. However, the lengthier statutory process set out above will delay this. 5.9 The 2009 Act does not require a separate planning application for flood protection schemes. If such schemes are confirmed under the 2009 Act, then the Scottish Ministers must also direct that planning consent is deemed to have been granted. 5.10 The proposal for a new formal Flood Protection Scheme is founded on the principle of protecting existing assets. Any proposed development is covered under planning legislation and is not considered in the determination of a proposed flood scheme. 5.11 It is, therefore, proposed that further work be undertaken when the Scheme is confirmed towards writing to the Scottish Government setting out proposed planning conditions and requesting that planning permission shall be deemed to be granted and be subject to those conditions. 6. CONCLUSION 6.1 The purpose of the flood protection scheme is to manage flood risk in Kinross. 6.2 The Scheme was published on 26 March 2024 and received two objections. The objections have not been withdrawn following consultation.
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6.3 This report proposes that the Council consider the valid objections, the Scheme's environmental Impact, and make a preliminary decision to confirm the proposed Scheme without modification. 6.4 The report also seeks the Council’s approval to authorise the Strategic Lead – Environment and Infrastructure to carry out all necessary steps to complete the statutory process. 6.5 A further report will be brought before Committee once the statutory process has been concluded. Authors Name Designation Contact Details Russell Stewart Rory Stuart Senior Engineer Engineer 01738 475000 EPLCommitteeReports@pkc.gov.uk Approved Name Designation Date Fraser Crofts Strategic Lead (Environment and Infrastructure) 25 November 2025 APPENDICES • Appendix A – Plan of the Proposed Scheme • Appendix B – Summary of Objections
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ANNEX 1. IMPLICATIONS, ASSESSMENTS, CONSULTATION AND COMMUNICATION Strategic Implications Yes / None Community Plan / Single Outcome Agreement Yes Corporate Plan Yes Resource Implications Financial Yes Workforce Yes Asset Management (land, property, IST) Yes Assessments Equality Impact Assessment Yes Strategic Environmental Assessment Yes Sustainability (community, economic, environmental) Yes Legal and Governance Yes Risk Yes Consultation Internal Yes External Yes Communication Communications Plan Yes 1. Strategic Implications Community Plan/Single Outcome Agreement 1.1 This report supports the following priorities within the Community Plan 2022- 27. (i) Mental and physical wellbeing (ii) Employability Corporate Plan 1.2 This report supports the following objectives within the Corporate Plan:- (ii) People and businesses are increasingly able to prosper in a local economy which support low carbon ambitions and offers opportunities for all; (iii) People can achieve their best physical and mental health and have access to quality care and support when they need it; (iv) Communities are resilient and physically, digital and socially connected; (v) Perth and Kinross is a safe and vibrant place, mitigating the impact of climate and environmental change for this and future generations.
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2. Resource Implications Financial 2.1 The 2009 Act requires the Scottish Government to have regard to the FRM Plans and Local FRM Plans when allocating funds to SEPA and responsible authorities. The Scottish Government, CoSLA and SEPA agreed the distribution of capital funding to the actions identified nationally in the Cycle 1 FRM Strategies and Local FRM Plans. The following general arrangements currently apply: 1) Only works and schemes that are prioritised in the FRM Plans and Local FRM Plans are eligible for capital funding. 2) Flood protection schemes attract capital grant assistance of up to 80% of their estimated project cost at tender stage from the Scottish Government. Local authorities are required to fund the remainder of the cost of flood schemes. 3) The Scottish Government allocates capital funding to local authorities engaged in flood risk management across Scotland. 80% of this capital funding will continue to be allocated to flood protection schemes with the remaining 20% to other actions within the FRM Plans, as detailed in the Local FRM Plans. This 20% is distributed to the 32 Scottish local authorities based on the number of properties at risk of flooding and the estimated annual average flood damages. 2.2 At present, the allocated capital grant is adjusted as flood scheme proposals are developed. The estimated costs of flood schemes across Scotland will therefore continue to be reported to the Scottish Government by local authorities on an annual basis. 2.3 These arrangements will come to an end in 2026/27 and are currently under on-going review by the Scottish Government and CoSLA, due to the current projected costs of Cycle 1 flood schemes across the country, and the available funding. 2.4 In the meantime, the Scottish Government and COSLA Leaders introduced two deadlines to this process: • Any Cycle 1 schemes not published by 31 March 2024 will no longer be funded - the South Kinross Scheme was published on 26 March 2024 and met this deadline. • Any Cycle 1 schemes that haven’t appointed a main works contractor by 31 March 2026 will no longer be funded. However, Schemes that are subject to objection/s will not be disadvantaged from the point a preliminary decision is notified to Scottish Ministers. The clock will stop at this stage until the conclusion of either a public local enquiry or local authority hearing.
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2.5 The conclusion of the national review into capital funding for flood schemes is awaited. In the meantime, COSLA leaders have confirmed that it is expected that the Local Government General Capital Grant will continue to include resources allocated for flooding projects, and decisions on quantum and distribution will be taken by Scottish Ministers and COSLA Leaders nearer the time. 2.6 The South Kinross Flood Protection Scheme has been prioritised in the published Forth Estuary Flood Risk Management (FRM) Plan and Local FRM Plan. The flood scheme is therefore receiving Scottish Government capital grant assistance, and this will continue up to 80% of its value at tender stage (provided the above deadlines are met). The Council is required to fund the remainder of the cost of the scheme, assuming it remains economically viable. 2.7 It should also be noted that the implementation of the flood scheme will be some time away. On conclusion of the statutory process described above, the detailed design of the preferred scheme will be progressed before the necessary tender process to appoint a contractor to construct the scheme. Construction is anticipated to commence beginning 2027 (earlier if possible), assuming no further delay to the statutory process and the detailed design programme. However, the lengthier statutory process set out in this report may delay this. Capital 2.8 The estimated cost of the scheme increased from £3.713M to £15.027M, through the 2024/25 budget process and approved by the Perth and Kinross Council committee on the 28 February 2024. The uplift of £11.314M was approved with the expectation that the Scottish Government will fund 80% of the additional cost £9.051M, if the grant terms and conditions are met. Perth and Kinross Councils 20% match funding of £2.263M was approved at this time. 2.9 South Kinross FPS remains a Cycle 1 project with set timescales to secure the 80% match funding once the construction tender price is known, any delay due to the statutory process which impedes the Scottish Government Cycle 1 timescales, will impact upon the future of the scheme. Revenue 2.10 The on-going maintenance costs for the scheme are estimated at £0.038M per annum. 2.11 The additional cost will require to be considered through the Council’s budget process once the scheme has been completed.
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Workforce 2.12 The project management of the flood scheme will be undertaken by the Council’s Flooding Team. There will be a resource implication for Legal and Property Services for technical assistance required throughout the remaining duration of the project. Asset Management (land, property, IT) 2.13 In order to construct the proposed scheme, there will be a requirement to purchase land and/or provide compensation to relevant landowners. Estates have been consulted on the scheme and a landownership plan has been produced to inform future negotiations with relevant landowners. 3. Assessments Equality Impact Assessment 3.1 Under the Equality Act 2010, the Council is required to eliminate discrimination, advance equality of opportunity, and foster good relations between equality groups. Carrying out Equality Impact Assessments for plans and policies allows the Council to demonstrate that it is meeting these duties. The Equality Impact Assessment undertaken in relation to this report can be viewed clicking here. 3.2 The proposals in this report have been considered under the Corporate Equalities Impact Assessment process (EqIA) with the following outcome: (i) Assessed as relevant and actions taken to reduce or remove the following negative impacts: • The construction works could temporarily have a greater impact of mobility impaired, sight impaired, blind people or disabled people, on children and the elderly and infirm, and on pregnant women or nursing mothers, in relation to adverse psychological, physical and health impacts. Appropriate mitigation measures will be adopted to minimise disruption, noise, dust and vibration and to ensure adequate safe access throughout the construction works. (ii) Assessed as relevant and the following positive outcomes expected following implementation: • The flood scheme will have the same positive impact for all equality groups as the reduction in flood risk to Kinross will provide benefits for all (improved safety, health & wellbeing through avoidance of flood impacts and damages) in the long-term.
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Strategic Environmental Assessment 3.3 The Environmental Assessment (Scotland) Act 2005 places a duty on the Council to identify and assess the environmental consequences of its proposals. 2.4 The matters presented in this report were considered under the Environmental Assessment (Scotland) Act 2005 and no further action is required as it does not qualify as a PPS as defined by the Act and is therefore exempt. 2.5 As outlined in this report, an Environmental Impact Assessment Report (EIAR) was produced for the Scheme. The EIAR identified that the Scheme does not have any potentially significant impacts that would arise as a result of the construction and future use of the Scheme. The only recommendation from the EIAR was to consider construction time periods relative to the nesting bird season to minimise disruption. In addition, there is an outstanding action to identify and assess all groundwater abstractions within the extents of the Scheme. 2.6 At the time of publishing the notice for the flood scheme under the 2009 Act, the EIAR was submitted to statutory and non-statutory consultees for their consideration. Any additional requirements will be actioned in the timescales required or added as conditions into the deemed planning consent for action during the detailed design or construction of the Scheme. Sustainability 3.7 Under the provisions of the Local Government in Scotland Act 2003 the Council has to discharge its duties in a way which contributes to the achievement of sustainable development. Under the Climate Change (Scotland) Act 2009 the Council also has a duty relating to climate change and, in exercising its functions must act: • in the way best calculated to delivery of the Act’s emissions reduction targets; • in the way best calculated to deliver any statutory adaptation programmes; and • in a way that it considers most sustainable. 3.8 Following an assessment using the Integrated Appraisal Toolkit, it has been determined that the proposal is likely to contribute positively to the following corporate sustainable development principles: (i) Climate Change Efficient use of resources now and in the future in the built environment and service provision (e.g. energy efficiency, land, water resources, flood defence, waste minimisation) (Principle 2) Mitigation and adaptation to manage the impact of climate change & reduce the production of greenhouse gases (Principle 3).
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Justification: The flood scheme proposed in this report will significantly reduce flood risk in Kinross and will therefore help in tackling the effects of climate change. (ii) Fairer Communities Creating a sense of place (e.g. a place with a positive ‘feeling’ for people, and local distinctiveness) (Principle 22) Justification: The flood scheme will help to make the local community safer and more sustainable for residents, through a reduction in flood risk. This will help the community to thrive in the longer term despite the temporary construction impacts. 3.9 Following an assessment using the Integrated Appraisal Toolkit, it has been determined that the proposal is likely to contribute negatively to the following corporate sustainable development principles: (iii) Consumption and Production Efficient use of resources now and in the future in the built environment and service provision (e.g. energy efficiency, land, water resources, flood defence, waste minimisation) (Principle 2) Mitigation and adaptation to manage the impact of climate change & reduce the production of greenhouse gases (Principle 3) Justification: There will be a short term increase in the use of materials and resources during construction of the flood scheme, but a future reduction due to reduced flood risk. Mitigation: The Environmental Impact Assessment and eventual Construction Environmental Management Plan will consider energy consumption and waste management practices during construction. Legal and Governance 3.10 The Strategic lead – Legal and Governance has been consulted on this report. 3.11 Scheme of Administration authorises the Climate Change and Sustainability Committee delegated powers to exercise the Council’s functions in relation to matters concerning The Flood Risk Management (Scotland) Act 2009 for which this report is applicable. However, given the current circumstances this matter is brought to the Council for consideration.
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Risk 3.12 Risks associated with the proposal will be managed through appropriate communication and project management. 4. Consultation Internal 4.1 The Strategic Lead - Legal and Governance and The Strategic Lead – Finance and Business Support have been consulted in the preparation of this report. 4.2 At the time of publishing the notice for the flood scheme under the 2009 Act, all relevant sections of the Council were notified including, but not limited to: local elected members, Planning, Property, Land Quality, Environmental Health, Structures Team, Community Greenspace, the Council’s Biodiversity Officer and Legal. External 4.3 All relevant landowners and occupiers, SEPA, Kinross-shire Local Committee, Kinross Community Council, Kinross Flood Resilience Group, Loch Leven Fisheries, NatureScot, Transport Scotland, Historic Environment Scotland, the Public Utilities and all other relevant organisations were consulted during the development of the proposals. 4.4 A public exhibition was held in Kinross on 28 September and 5 October 2023. The aim of the public exhibition was to provide the community with further information on: • The risk of flooding in Kinross; • The Council’s proposals for the flood scheme; and • Other actions to raise awareness of flood risk and improve flood resilience. 4.5 A letter was issued to elected members, the Community Council and the Kinross Flood Resilience Group summarising the work carried out by the consulting engineers and how flood risk will be managed in the future. 352 letters were sent to local residents and businesses within the community to advertise the events, and posts were made on the council’s Social Media accounts. Approximately 41 people attended the public exhibition over the two days. 4.6 The public exhibition included a central display, a presentation and a series of plans of the scheme options. Representatives from the Council’s flooding team, design consultants (RPS), and the Scottish Flood Forum were available to answer questions and provide further information. Those attending were given an opportunity to record their views and questions on comment forms, or via the Council’s website and Consultation Hub. 12 comment forms were returned to the Council after the public exhibition.
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4.7 The response to the community public exhibition was generally positive with the majority of the community being supportive of the proposed outline design for the flood scheme 4.8 The Council issued a public consultation report to the local community to answer any questions raised during the public exhibition or on comment forms. 4.9 The public consultation materials used at the public exhibition and public consultation report can still be viewed on the Council’s website at http://www.pkc.gov.uk/southkinrossfloodscheme. 4.10 All relevant Landowners and occupiers, SEPA, Kinross-shire Local Committee, Kinross Community Council, Kinross Flood Resilience Group, Loch Leven Fisheries, NatureScot, Transport Scotland, Historic Environment Scotland, the Public Utilities and all other relevant organisations were notified of the flood scheme under the 2009 Act. 5. Communication 5.1 The communication arrangements to date were as noted in Section 4 above. 5.2 A newsletter is issued periodically to the local community and relevant consultees in order to update them on the progress of the Scheme. Full details of the scheme are also available to view on the Council’s website. http://www.pkc.gov.uk/southkinrossfloodscheme. 5.3 The Council will continue to communicate with the local community, statutory consultees, local landowners and other stakeholders as the detailed design of the scheme is developed. The above noted website will continue to be updated and further letters and newsletters will be issued to the local community as appropriate. 2. BACKGROUND PAPERS 2.1 The following background papers, as defined by Section 50D of the Local Government (Scotland) Act 1973 (and not containing confidential or exempt information) were relied on to a material extent in the preparation of the above report; • PKC – Enterprise and Infrastructure Committee – 24 October 2007, Flood Mitigation Schemes and Flood Studies (Report No 07/681) • PKC – Environment Committee – 30 January 2008, Biennial Report on Flood Prevention Responsibilities 2007 (Report No 08/41) • PKC – Environment Committee – 4 November 2009, Biennial Report on Flood Prevention Responsibilities 2009 (Report No 09/504) • PKC – Environment Committee – 21 March 2012, Biennial Report on Flood Prevention (Report No 12/135) • PKC – Environment Committee – 20 November 2013, Progress Report Flood Risk Management (Scotland) Act 2009 (Report No 13/544) • PKC – Environment Committee – 12 November 2014, The Flood Risk
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Management (Scotland) Act 2009, Short List of Potential Measures to Manage Flood Risk (Report No 14/483) • PKC – Environment Committee – 9 September 2015, The Flood Risk Management (Scotland) Act 2009, Selected Actions and Prioritisation (Report No 15/359) • PKC – Environment Committee – 1 June 2016, The Flood Risk Management (Scotland) Act 2009, Publication of Local Flood Risk Management Plans (Report No 16/241) • PKC – Environment and Infrastructure Committee – 23 January 2019, The Flood Risk Management (Scotland) Act 2009 Publication of Interim Report (Report No 19/16) • PKC – Climate Change and Sustainability Committee – 19 May 2021, The Flood Risk Management (Scotland) Act 2009: Second Cycle of Flood Risk Management Plans (Report No 21/60) • PKC – Climate Change and Sustainability Committee – 19 December 2022, The Flood Risk Management (Scotland) Act 2009: Publication of Final Reports (Cycle 1) & Local Flood Risk Management Plans (Cycle 2) (Report No 22/307) • PKC – Climate Change and Sustainability Committee – 27 November 2023, South Kinross Flood Protection Scheme (Report No 23/332)