In this first article on sustainable drainage systems (SuDS), we look at recent changes in England to how they will be provided and maintained and the implications for developers.
In our second article, we look at maintenance options for SuDS.
The Pitt report after the 2007 floods made various recommendations on how to increase the uptake of SuDS and the government agreed that the automatic right for new developments to connect surface run-off to the sewerage system should be removed.
Until July last year, the proposal was for surface run-off systems to be approved by a newly created SuDS approving body before construction started. An application could only be approved if the SuD system complied with national standards.
The approving body would have to adopt and maintain any approved SuDS so long as they were functioning correctly and served more than one property. There was to be an approving body within each of the 152 Lead Local Flood Authorities (LLFAs) - the county councils and unitary authorities in England.
Following considerable preliminary work in testing in these proposals, the government decided not to pursue this route and in September 2014 consulted on an alternative approach of delivering SuDS through changes to the current planning regime.
Revised planning guidance and technical standards
From 6 April 2015 local planning authorities in England are required by planning guidance to ensure that SuDS are put in place when considering planning applications for ten or more dwellings, unless it is demonstrated that they are clearly inappropriate.
On 23 March 2015 the government issued two important supporting documents:
- Planning practice guidance: Reducing the causes and impacts of flooding - why are sustainable drainage systems important?
- Sustainable drainage systems: non-statutory technical standards for sustainable drainage systems. This is a short document that sets out the 14 national standards
Best practice guidance is being prepared, facilitated by DEFRA, and should be issued shortly. Contributors included the LLFAs, water and sewerage companies, LPAs and the Home Builders Federation.
From 15 April 2015 LLFAs became a statutory consultee on planning applications for major developments - which include a development of ten or more dwelling houses. They also have a role in advising an LPA whether a SuD system would be inappropriate for a particular development proposal - this is covered in the planning practice guidance mentioned above.
Any SuDS infrastructure provided will not necessarily be adopted by any designated body - the planning practice guidance does not impose a mandatory requirement for adoption.
Currently local planning authorities are using a combination of planning conditions and section 106 agreements to deliver SuDS. The new planning practice guidance makes it clear that the LPA will want to be satisfied that the proposed minimum standards of operation of the SuD system are appropriate and for clear arrangement to be in place for ongoing maintenance.
Developers need to consider SuDS and their future maintenance at the land acquisition stage to avoid the risk of potential delay and additional costs. Site characteristics should be fully evaluated at the outset and made clear to LPAs in any pre-application discussions by providing well-considered technical evaluations.
If SuDS infrastructure has to be constructed on or through third party land, the cost must be factored into an assessment of viability. If the cost is excessive and compromises viability, the developer may want to demonstrate that a SuD system is inappropriate for the development.
Developers may also experience delays in planning applications while LPAs and LLFAs grapple with the new approach and develop the necessary expertise.
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.