SuDS - who will maintain them?
Author: Gavin Le Chat & Anna Cartledge
Applies to: England
This is the second article on sustainable drainage systems (SuDS) and looks at options for maintenance. In our first article we looked at recent changes to the provision and maintenance of SuDS and the implications for developers.
In our first article, we look at where we are with SuDS.
SuDS are required, unless demonstratively inappropriate, on new developments in England of ten or more dwellings. But once created, what arrangements will be made for their maintenance?
In considering a planning application, the local planning authority will want to be satisfied that there are clear arrangements in place for ongoing maintenance of a SuD system. The LPA will want to be convinced that the body identified is sufficiently experienced to take on the maintenance role.
Any SuDS infrastructure will not necessarily be adopted by any designated body. The planning practice guidance issued in March 2015 does not impose a mandatory requirement for adoption.
Common current arrangements
SuDS are not new to developers and section 106 agreements will usually require transfer of the SuD system along with public open space to a specialist company - which will take over maintenance and charge the plot buyers an annual maintenance fee. This may be organised through a management company.
Future buyers are bound to keep making the payments through using the common conveyancing technique of a Land Registry restriction in favour of the company and a requirement for the new buyer to enter into a deed of covenant.
For small developments, the requirement to maintain is often the responsibility of the plot owners. If the SuD system includes e.g. an attenuation tank under one plot, that plot owner will have the obligation to maintain subject to contributions from the other plot owners who use the tank.
Other maintenance options
In its consultation paper in September 2014 on the alternative approach to SuDS by using the current planning regime, the government outlined a range of maintenance options:
- service management companies, as outlined in current arrangements above
- adoption by water and sewerage companies - under their statutory powers WaSCs are able to maintain drainage systems which relieve the public sewer and this includes SuDS. The SuDS would be included in the WaSC's ordinary charging scheme and maintenance costs would be funded through the surface water drainage element of household water bills. The charges would be regulated by Ofwat
- the WaSC could offer its services as a service management company - in that instance it would have to collect the maintenance costs from the plot owners on the individual sites
- some local authorities may wish to take on responsibility for the maintenance of SuDS as part of their wider public open space and amenity management function or where the SuD system provides advantages for the wider community. The local authority would have to charge for this
Costs of maintenance
The planning practice guidance for SuDS makes it clear that the assessment of whether the maintenance and operation requirements of a SuD system are economically proportionate should be by reference to the costs that consumers would incur for the use of an effective drainage system connected directly to a public sewer.
This indicates that predicted excessive maintenance costs would be a consideration for a local planning authority in deciding whether a SuD system is appropriate for a development.
In the government's response to the September 2014 consultation, it made it clear that commuted sums paid by developers to local authorities for the maintenance of SuDS must not be the default option - they would expect this route to be appropriate in only limited cases. If a LPA requires a significant commuted sum that affects viability, a developer could argue that the SuD system is inappropriate for the development.
Opinions are divided on whether maintenance of SuDS is cheaper overall than conventional piped surface water drainage. Defra commissioned independent research on this issue in 2013 and found that maintenance costs of SuDS on average were no higher than the average charge for piped drainage.
What is clear is that project viability will be essential at the pre-planning stage and it would need to include future maintenance costs by an experienced designated body.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.