SuDS’ Law: legislation v policy in the utilization of sustainable drainage systems (Part 1)

The Background

Serious flooding incidents led to Sir Michael Pitt’s review of 2007 and recommendations on policy changes that could help address surface water flooding. The Flood and Water Management Act 2010 was the principal statutory mechanism for taking forward a large number of the Pitt recommendations, including changes to promote the greater use of SuDS in new developments and redevelopments.

Flooding remains of course a significant issue. In April 2017 the House of Commons Environment, Food and Affairs Select Committee published a report on the effectiveness of the 2010 Act which can be found here. 

The Report noted that SuDS remove surface water and thus reduce the causes and impacts of surface water flooding through green methods, such as infiltrating water through permeable surfaces or storing run-off in ponds and swales and are a key part of the policy solution. SuDS are designed to control surface water run-off close to where it falls and to mimic natural drainage as closely as possible That Report also pointed out that SuDS reduce the pressure on conventional drainage, can cost no more to build and maintain, and can have multiple benefits for amenity and the environment.

On the 17 October 2017, the Select Committee published a special report “Post-legislative scrutiny: Flood and Water Management Act 2010: Government Response to the Committee’s Sixth Report of Session 2016-17”. This can be found here. 

The Select Committee’s Concerns and Recommendations

The Select Committee’s April 2017 Report focused on the fact that whilst the Government purports to support the use of sustainable drainage, the provisions within Schedule 3 of the Flood and Water Management Act 2010 are not yet in force. That Act provides the fundamental underpinning for the current flood and water management approaches in England. As the Report summarises, Schedule 3:

• makes provision for the publication of national standards for the design, construction, maintenance and operation of new SuDS;
• establishes unitary or county councils as SuDS Approval Bodies (SABs);
• requires all construction work which has ‘drainage implications’ to gain approval for its drainage system from a SAB before it commenced;
• requires the SAB to consult with a number of bodies, including the Environment Agency, any relevant Internal Drainage Board and any relevant sewerage company when considering the application; and
• provides the SAB with the power to attach conditions to any approval it grants, including the provision of a non-performance bond.

Rather than commencing those measures, the Government has focused on using the planning system (in particaulr the planning practice guidance – PPG) for increasing the installation of SuDS in new developments. On the evidence presented to it, the Select Committee considered the current flood management structures to be “fragmented, inefficient and ineffective”.These concerns have been endorsed by theCommittee on Climate Change Adaptation Sub-Committee which considered that “there is no evidence that implementation of the Act has led to a reduction in flood risk”. It pointed out that too few SuDS schemes are installed and too few are of sufficiently high quality.

The Report highlighted the fact that under the PPG schemes of 10 or more houses only are required to includes SuDS (see PPG at Paragraph: 079 Reference ID: 7-079-20150415 here). In contrast, Schedule 3 measures would apply to any development of more than one property. Developers can invoke cost or practicality opt-outs (see House of Commons Written Statement 161, 18 December 2014, found here. 

Further, developers retain an automatic right to connect surface water run-off to water and sewerage company sewers and therefore they may not be incentivised to develop sustainable drainage options.

However, the Report also recognised that there are potential drawbacks from the Schedule 3 measures. In particular, Ministers and others expressed strong concerns to the Committee about the potential for delays to a development from for example the requirement for approval of drainage systems before the grant of planning permission from a SuDS Approval Body. Accordingly, the Select Committee has recommended the strengthening of the planning rules to require high-quality SuDS schemes in all developments of more than one property and to reduce significantly the potential for developers to opt-out from installing schemes on cost or site-practicality grounds. It also recommended specific improvements including:

• making standards for SuDS construction statutory to provide a stronger basis for enforcement;
• amending statutory definitions of a sewer to make it easier for Water and Sewerage Companies to adopt SuDS;
• ending the automatic right of new developments to connect surface water discharges to conventional sewerage systems to spur developers to develop sustainable alternatives; and
• improving support for local authorities which have SuDS responsibilities.

The Committee further made recommendations in relation to private sewer transfer, reservoir safety and water customer debt.

The Government’s Review and Response to the Select Committee are considered in Part 2 of this blog.