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

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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.

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