UK: Sustainable Drainage Consultation Ends March 2012

The Department for Environment, Food and Rural Affairs (DEFRA) is presently consulting on proposals to implement requirements for sustainable drainage systems ("SuDS") in new and redeveloped sites in England. By reducing the rate and volume of surface runoff from developments, SuDS are recognised as devices to alleviate local flood risk, mitigate pollution and reduce extra load on public sewers. Given the increasing uncertainty in respect of insurance relating to flood risk in particular areas, the proposals should be of interest to developers, investors and insurers alike. The present intent, subject to consultation, is to introduce the changes from 1 October 2012.

The proposals stem from the Flood and Water Management Act 2010 (the "Act") which requires construction work with drainage implications to have drainage systems for managing surface runoff (including rainwater, snow and other precipitation) approved before construction may begin. A SuDS Approving Body ("SAB") will be established to approve and adopt SuDS. "Construction work" is defined broadly as "the creation of buildings or structures that cover land and which will affect the ability of the land to absorb rainwater".

The Act requires National Standards on the design, construction, operation and maintenance of SuDS. The SAB must ensure that the SuDS have been designed in accordance with the National Standards but once approved the SAB must adopt and maintain those SuDS which function properly and serve more than one property. Importantly, the Act amends existing law so that the right to connect surface runoff to public sewers is conditional upon the drainage system being approved by the SAB. The Welsh Government will be consulting separately about similar implementation of the Act in Wales.

The consultation, which expires on 13 March 2012, asks for views on the National Standards and draft statutory instruments including those for the approval and adoption of SuDS and appeals. DEFRA has also announced that it is developing guidance to support the National Standards which is expected in draft form in April 2012. Responses may be completed online, by post or via email to suds@defra.gsi.gov.uk. Please click here for copies of the consultation documents. Stakeholders should actively respond to the consultation but also factor the proposals into any strategic project planning. Key aspects of the consultation can be found in the full article

To view the article in full, please see below:




Full Article

The Department for Environment, Food and Rural Affairs (DEFRA) is presently consulting on proposals to implement requirements for sustainable drainage systems ("SuDS") in new and redeveloped sites in England. By reducing the rate and volume of surface runoff from developments, SuDS are recognised as devices to alleviate local flood risk, mitigate pollution and reduce extra load on public sewers. Given the increasing uncertainty in respect of insurance relating to flood risk in particular areas, the proposals should be of interest to developers, investors and insurers alike. The present intent, subject to consultation, is to introduce the changes from 1 October 2012.

The proposals stem from the Flood and Water Management Act 2010 (the "Act") which requires construction work with drainage implications to have drainage systems for managing surface runoff (including rainwater, snow and other precipitation) approved before construction may begin. A SuDS Approving Body ("SAB") will be established to approve and adopt SuDS. "Construction work" is defined broadly as "the creation of buildings or structures that cover land and which will affect the ability of the land to absorb rainwater".

The Act requires National Standards on the design, construction, operation and maintenance of SuDS. The SAB must ensure that the SuDS have been designed in accordance with the National Standards but once approved the SAB must adopt and maintain those SuDS which function properly and serve more than one property. Importantly, the Act amends existing law so that the right to connect surface runoff to public sewers is conditional upon the drainage system being approved by the SAB. The Welsh Government will be consulting separately about similar implementation of the Act in Wales.

The consultation, which expires on 13 March 2012, asks for views on the National Standards and draft statutory instruments including those for the approval and adoption of SuDS and appeals. DEFRA has also announced that it is developing guidance to support the National Standards which is expected in draft form in April 2012. Responses may be completed online, by post or via email to suds@defra.gsi.gov.uk. Please click here for copies of the consultation documents.

Stakeholders should actively respond to the consultation but also factor the proposals into any strategic project planning. Key aspects of the consultation are outlined below.

Content of the Consultation

The consultation documents include draft National Standards, an impact assessment and 4 draft statutory instruments which cover approval and adoption, the enforcement of the requirement for SAB approval, procedural matters regarding approval and adoption and appeals against SAB decisions.

Subject to consultation, it is intended that the statutory instruments shall be effective from 1 October 2012. The impact assessment covers the costs of the proposed changes and the National Standards to developers and SABs and the benefits of SuDS. Main points arising from the proposals follow.

1. Implementation options

Development thresholds: the impact assessment suggests that all large major, major and minor size development should require SAB approval from commencement. However, due to the volume of applications, it is proposed that the requirement for the approval to relate only to large major and major size developments for the first 3 years following introduction of the changes.

Transitional arrangements: it is envisaged that SAB approval will not be required for the first 12 months following commencement of the changes to (i) developments with planning permission before commencement; (ii) developments with one or more reserved matters where an application for approval of the reserved matter is made or (iii) where a valid planning application had been submitted before commencement.

Timing: it is proposed that the new changes commence on 1 October 2012. Other alternatives such as April 2013, October 2013 or after 2013 are queried.

2. National Standards

The National Standards are divided into principles of sustainable drainage and standards for design, construction and maintenance. The principles must be taken into account for the design of SuDS. The principles set the assessment criteria on the functionality of drainage SABs adopt and exempt development from complying with aspects of the standards on the grounds of disproportionate cost. The standards propose criteria for location of surface water runoff, runoff volume, flow rates and water quality entering water bodies.

One principle is affordability. If full compliance with the National Standards would necessitate a drainage system that is more expensive than an equivalent conventional design, full compliance is not required and the system must comply with the standards to the greatest extent possible within the cost of the equivalent design. The affordability test addresses capital costs. Full details are not contained within the consultation documents but proposed to be included in the guidance presently being prepared. Affordability may be a contentious issue. It is vital that those affected fully participate in the consultation.

3. SAB Approval and Adoption

DEFRA propose that construction work which requires planning permission, has drainage implications and comes within the approval threshold proposed in the phasing period should require SAB approval in addition to construction work which does not require planning permission but involves the construction of a building or structure covering an area of 100m2 or more (unless constructed under a Neighbourhood Development Order ("NDO"). The Act exempts work which constitutes nationally significant infrastructure projects (as the Infrastructure Planning Commission/Secretary of State will consider the drainage implications of these projects). In addition it is proposed that work by an Internal Drainage Board, the Highways Agency or track laid by Network Rail; permitted development of an area less than 100m2, developments of less than 10 homes or an area of less than 100m2 or development by micro businesses shall not require approval.

It is proposed that the SAB must determine applications within 12 weeks in respect of major developments or a county matter and for other development 7 weeks whereas SABs should determine a request for adoption within 8 weeks. The proposed appeal period is 6 months from the SAB's decision or when the decision was due.

The SAB must adopt a drainage system which (i) was constructed following approval (ii) constructed and functions in accordance with the approval and (iii) is a sustainable drainage system. The proposed definition of "sustainable drainage system" is "those parts of a drainage system that are not vested in a sewerage undertaker". Upon completion of the works the SAB must decide within 12 months if it is satisfied that the SuDS function in accordance with the National Standards.

4. Non performance bonds

The SAB may require a non performance bond as a condition of approval, the value of which must not exceed the best estimate of the overall cost of the works. Proposals are set out in the consultation and there is a specific question as to whether separate guidance on the calculation of such bonds is necessary. It is intended that the bond be returned within 28 days of notice of decision to adopt the drainage system or the return of amounts remaining within 28 days of completion of work by SABs to ensure compliance with the National Standards.

5. Enforcement and Compensation

It is proposed that both the SAB and the Local Planning Authority shall have enforcement powers. It is intended that claims for compensation related to powers of entry and temporary stop notices must be submitted within 12 months of the powers being exercised or the notice being withdrawn or ceasing to have effect. In addition to non criminal sanctions, criminal sanctions are proposed in limited circumstances. It is further proposed to apply similar procedures for appeals against enforcement notices to those which apply in the planning regime and that a SuDS enforcement notice register is maintained.

6. Flood Risk Structures and Features Register

The Act requires all SuDS to be added to the register of flood risk structures and features. Designation of such a feature means that the SuDS may not be altered, removed or replaced without the consent of the designating authority which has future redevelopment implications. SuDS would be recorded as a local land charge and identified in title searches. Query whether the insurance industry will factor searches on the features register or the enforcement notice register into coverage or premium assessment.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 03/02/2012.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.