SuDS’ Law: legislation v policy in the…

The Government’s Ongoing Review

The DCLG are leading a review to assess the effectiveness of planning policy in delivering SuDS in new housing, commercial and mixed-use developments in England. This follows the amendments in 2015 to national planning policy to encourage greater use of SuDS. The Government states that the ongoing review will be published “in due course”, despite the Select Committee’s recommendation for a clear timetable (as set out in Part 1 of this blog).

The Government’s Response

The Government’s Response to the Select Committee is probably considered underwhelming by those with understandable concerns about the current position regarding the utilization of SuDS. Some of the key points from that Response are:

(1) The NPPF, supported by the PPG, sets out a clear policy approach to protect people and property from flooding.

(2) The review is assessing the prevalence of SuDS in approved planning applications.

(3) Seeking legislative change to make statutory standards for SuDS does not offer clear benefits over current arrangements. The policy is clear that when determining planning applications, local planning authorities should ensure that flood risk is not increased elsewhere. The PPG already recognizes the importance of SuDS. Statutory design standards would not increase uptake of SuDS and would risk stifling innovation.

(4) Removing the right to connect to an existing sewer does not offer clear benefits over the current arrangements. It is likely to add costs to and delay to the planning process.

Final Thoughts

Many, including the Committee, are likely to be disappointed with the response of the Government so far on this important issue. The issues have to be identified and grappled with in a meaningful and expeditious way. The Government’s reliance on the amended PPG fails to address the shortcomings of that identified by the Select Committee. How far the ongoing Review will do this, remains to be seen. Giv

There is one other thought that is highly relevant to, but goes beyond, the approach to SuDS. There are many provisions on the statute book relating to planning and the environment that have not been implemented or only partially so. Schedule 3 of the 2010 Act presumably must have been considered expeditious and workable at the time it was included in the statute. Yet, even the Select Committee can see problems with it. So why was it enacted in the first place? There are many provisions in other legislation not yet in force (e.g. the Housing and Planning Act 2016) that one looks at and wonders what it is really for and suspects that there is a high chance of them never being brought into force. That does seem an unfortunate outcome of the use of legislative powers.

Nonetheless, the Select Committee’s consideration of this matter does illustrate the important role of such Committees in investigating and highlighting significant issues. For those interested, the powers of the Committee are set out principally in House of Commons Standing Order No. 152 can be found here.