Summary and implications

The Government continues to deliberate over how to implement the proposed rules on sustainable urban drainage systems (SuDS). Without guidance and clarity on what to expect, developers may be left high and dry as to the costs and requirements come the April 2014 deadline for the implementation of Schedule 3 of the Flood and Water Management Act 2010 (referred to here as Schedule 3).

From April 2014, (in England) any construction works which have drainage implications will require approval before construction can begin.

However, DEFRA has still not provided the necessary technical guidance to accompany the legislation. The absence of such guidance makes it hard for industry to prepare for the proposed changes.

The intention behind the new rules is to provide a regulatory framework to encourage the use of SuDS to alleviate surface water flood risk from rain, snow and other precipitation.

Legislation

The key rules proposed under Schedule 3 are to:

  • establish a new SuDS approval body (SAB);
  • provide for National Standards on the implementation of SuDS;
  • break the automatic right for developers to connect to surface water drainage systems, by making the right conditional on meeting National Standards and obtaining SAB approval;
  • require any construction works which have drainage implications to obtain approval before construction can begin; and
  • place an obligation on SABs for the long term adoption and maintenance of approved SuDS that meet National Standards and serve more than one property.

Role of SABs

Once implemented, Schedule 3 will place new obligations on county councils or unitary local authorities to act as SABs. SABs will give approval for:

a) the scheme design;

b) connection to the public sewer system; and

c) the basis for adoption of the scheme once completed.

DEFRA is currently providing training to these authorities to enable them (in their capacity as SABs) to evaluate whether proposed schemes will meet the required National Standards. The draft rules will then be subject to a three-month standstill period, whilst the European Commission determines if they would constitute a restraint of trade.

What standards are required?

SABs will evaluate proposed drainage schemes against DEFRA technical National Standards on the design, construction, operation and maintenance of sustainable drainage. This guidance has been consulted upon but its issue has been delayed due to extensive negative responses from industry.

How will the process work?

If planning permission is required for development, a combined application must be made to the local planning authority (LPA) including both the SuDS and planning permission applications. It will be critical for developers to enter negotiations early with the LPA and SAB in the pre-application phase to ensure they are aware of all the requirements before submitting applications.

Where planning permission for development has already been granted before Schedule 3 is implemented, transitional arrangements will apply. However, details of these are still awaited from DEFRA. We envisage that the combined planning and SAB application process, as well as a requirement to consult with statutory consultees, could result in delays to the development timetable.

There also remains significant uncertainty over the cost implications, as the new requirements mean developers may have to submit two alternative schemes (a conventional scheme and a SuDS scheme). This is so as to demonstrate affordability. Developers may also have to provide performance bonds to reimburse the SAB if the developer does not complete the SuDS to the standards required.

Looking forward

Clearer guidance is anticipated shortly, which hopefully will give clarity on what is affordable and practical under the rules and how performance bonds will work. DEFRA is also working to develop an evidence base to review SuDs policies and intends to consult on a charging regime for maintaining SuDS in the longer term.

We recommend engagement now with your local authority to become involved with the process, present your views on how this may affect your business and identify issues at an early stage. This approach may help to smooth the way in the pre-application phase, once Schedule 3 is implemented.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.