UK: Sustainable Urban Drainage Systems (Suds) Rules: Delays Could Leave Developers High And Dry

Summary and implications

While the Government deliberates 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 expected of them come the April 2014 deadline for the implementation of Schedule 3 of the Flood and Water Management Act 2010 (Schedule 3).

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

Back in 2012, industry widely challenged the proposed implementation of the scheme, which seeks to alleviate the risk of surface water flooding through the integration of SuDS in new developments and redevelopments. Objections were raised as the costs to developers had not been properly assessed and the National Standards proposed did not contain sufficient technical consideration.

As a result of the continuing debate and views expressed by developers and local authorities, Defra has been unable to provide the lead-in times promised to deliver guidance to accompany the legislation. These delays will leave little time for industry to adapt and prepare for the proposed changes. There is also concern as to how well-equipped local authorities will be to implement the new legislation. Local authorities are currently receiving training on the new rules. However, there remains the risk they will be underprepared and under-resourced, thereby creating delays in obtaining development planning permissions.

This briefing sets out the requirements under the new rules and provides a summary of the current proposals for the implementation of the new system.

Background

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. Following the severe flooding experienced in 2007 and the recommendations of the subsequent Pitt Review, legislation has been introduced to increase the uptake of these schemes in new developments and redevelopments and to clarify who takes responsibility for the ownership and maintenance of SuDS.

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. These are the same authorities who act as the lead local flood authorities and have surface water management, planning and highways responsibilities.

SABs will give approval for the scheme design, connection to the public sewer system and adoption of the scheme once completed.

Defra is currently providing these authorities with capacity building workshops to enable them as SABs to evaluate whether proposed schemes will meet the National Standards required. It is hoped that thereafter some clarity will emerge and be shared with developers.

The draft rules, once issued, will be subject to a three-month standstill period, whilst the European Commission determines if they would constitute a technical barrier to trade. Such procedural delays mean that time is running short before the April 2014 deadline.

What standards are required?

An SAB will evaluate proposed drainage schemes against technical National Standards on the design, construction, operation and maintenance of sustainable drainage. These will cover the volume and rate of surface water runoff which can be discharged into the ground. The National Standards are currently being discussed with the SABs. Defra intends to develop guidance to assist in their interpretation.

How will the process work?

If no planning permission is required for the drainage works, applications may be made directly to an SAB. It is also possible to seek SAB approval ahead of making any planning application.

a) Combined applications to the local planning authority

If planning permission is required for development, a combined application must be made to the LPA including both the SuDS and planning permission applications. The LPA will forward the SuDS application to the SAB. The SAB will be obliged to consult with relevant statutory consultees including the Environment Agency, sewerage undertakers, internal drainage boards, the Canal and Rivers Trust and the highways authority.

Although the planning decision and SAB approval will be decided separately, the applicant will be alerted of the decisions through the LPA. In a scenario where planning permission is granted without SAB approval, no construction works may commence. 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 the reference to statutory consultees, could result in delays to the development timetable.

b) Adoption requirements

SABs may adopt an approved SuDS either on a compulsory or voluntary basis. Compulsory adoption will occur if the scheme has been approved by the SAB, was constructed in line with the approved plan (or has secured a non-performance bond), meets the National Standards and is a SuDS as defined by Schedule 3.

c) Costs

There remains a significant degree of uncertainty over the cost implications as the requirements mean developers may have to submit two alternative schemes to demonstrate affordability and provide a non-performance bond (to reimburse the SAB if the developer does not complete the SuDS to the standards required).

Looking forward

Clearer guidance is anticipated shortly on:

• the definition of SuDs and what falls within a single property drainage system;
• what is affordable and practical under the rules; and
• how non-performance bonds will work in practice.

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.

This is an ideal opportunity to be involved with the process, to present your views on how this may affect your business and try to minimise additional costs.

Also we would recommend engagement now with your local authority to identify issues at an early stage. This approach may anticipate any uncertainty and smooth the way in the pre-application phase once Schedule 3 is implemented.

As the April 2014 date for implementation of Schedule 3 approaches, we will maintain a watching brief and keep you updated as matters unfold.

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.