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Flood and Water Management Act 2010

Schedule 3:  Sustainable drainage

206.This Schedule introduces standards for the design, construction, maintenance and operation of new rainwater drainage systems, and an ‘approving body’. The body, which will generally be a unitary, county or county borough local authority, will be required to approve most types of rain-water drainage systems before any construction work with drainage implications can start. Where the system affects the drainage of more than one property, the approving body will be required to adopt and maintain the system upon satisfactory completion. The Schedule also amends section 106 of the Water Industry Act 1991 to make the right to connect surface water run-off to public sewers conditional on the approval of the drainage system by the approving body.

“Drainage system”

207.Paragraph 1 defines “drainage system” for Schedule 3 as a structure designed to receive rainwater, other than a public sewer or a natural watercourse.

“Sustainable drainage”

208.Paragraph 2 defines the term “sustainable drainage” for the purposes of this Schedule.

Cross-border systems

209.Paragraph 3 states that in situations where part of a drainage system is in Wales and part in England then the parts will be treated as separate systems for the purposes of this Schedule. However, decisions on one part should be taken with regard for the other part.

 “The Minister”

210.Paragraph 4 defines the Minister as the Welsh Ministers for drainage systems in Wales, and the Secretary of State for drainage systems in England.

National Standards

211.Paragraph 5 imposes a duty on the relevant Minister to publish national standards about how drainage systems should be designed, constructed, maintained and operated for the purpose of implementing sustainable drainage. These national standards are referred to in other paragraphs in this Schedule.

212.Sub-paragraph (3) provides that the standards may permit or require approving bodies to form judgments on drainage systems using specific criteria. Approving bodies must also take account of any guidance which is issued by the Minister.

213.The Ministers must consult before publishing the standards.

Approving body

214.Paragraph 6 sets out who is to act as the “Approving Body” for drainage systems for an area. In the first instance, the Approving Body is to be the unitary or county council for the area.

215.The relevant Minister may appoint by order another body to be the Approving Body, instead of the unitary or county council. The order may apply to all areas, or to one or more specified areas.

216.Sub-paragraph (4) allows the Minister to appoint the alternative Approving Body for a specified purpose only, and for different bodies to be appointed for different purposes. For example the approval and adoption functions could be split, and transferred to two different bodies.

217.Sub-paragraph (5) states, that when appointing a different body to act as the Approving Body for a particular area, the order may also confer additional powers on that body that would assist them in acting as the Approving Body. It may only confer powers which are already available to a unitary or county council. For example, this might be used to give local authority powers of entry to the new Approving Body for maintenance purposes so as to put them in the same position as the unitary or county council would have been. Where additional powers are conferred on the Approving Body, the order will be subject to the affirmative resolution procedure either in Parliament or the National Assembly for Wales.

218.An order appointing another body as Approving Body will be subject to the negative resolution procedure. Where the order includes provision to split approving body functions under sub-paragraph (4) or to confer additional powers under sub-paragraph (5), the affirmative resolution procedure will apply.

Requirement for approval

219.Paragraph 7 provides that approval by the Approving Body is required before commencement of any construction work which has drainage implications. This paragraph defines construction work as anything done by way of, or in connection with, or in preparation for, the creation of a building, including any structure that covers land (such as a patio). Construction work has drainage implications if the building or structure will affect the ability of the land to absorb rainwater. Approval for construction work is not required if that construction work is a nationally significant infrastructure project, as defined in section 31 of the Planning Act 2008. These projects will require approval from the Infrastructure Planning Commission.

220.Sub-paragraph (4) allows Ministers to define what is to be treated as construction work, or as having drainage implications, and therefore what requires approval. It also enables the Minister to set exemptions to the requirement for approval. This power is exercisable by order and will be subject to the negative resolution procedure.

Applications for approval

221.Paragraph 8 provides for two approaches for applying for approval from the Approving Body. Where planning permission under the Town and Country Planning Act is not required, then the application is to be made as a “free-standing” application, directly to the Approving Body. Where planning permission is required then the applicant can choose to make a combined application with planning permission, by lodging both applications to the planning authority at the same time.

Free-standing application for approval

222.Paragraph 9 provides the procedure for free-standing applications. The Approving Body may require applications to be made in a particular form, and applications must contain any information that the Approving Body requires in order to determine the application. If a fee is payable then it must also be accompanied by that fee.

Combined applications

223.Paragraph 10 provides the procedure where an applicant chooses to have their application for approval combined with planning permission. In a case like this, the applicant must give the planning application and the application for approval required by this Schedule to the planning authority. The application for approval of the drainage will need to contain the same information, be in the same form, and be accompanied by a fee in the same way as if a free standing application were made.

224.The planning authority will be obliged to consult with the Approving Body (if it is a different body than the planning authority), so that the Approving Body can determine the drainage application. The planning authority must inform the Approving Body of its final decision on the planning application. The planning authority must also inform the applicant of the final decision of the Approving Body on the drainage system at the same time as it informs the applicant of its final decision on planning permission.

Determination of application for approval

225.Paragraph 11 provides the process for determining an application for approval. An Approving Body must grant an application if it is satisfied that the drainage system complies with the national standards for sustainable drainage. If it is not satisfied then it must refuse the application. Approval may be granted subject to conditions on the construction, or modifications to the original proposals. The Approving Body may grant approval on the condition that the applicant provides a non-performance bond. In such a case, the approval only takes effect once the applicant has provided the non-performance bond. Grant of approval may relate to inspection of the drainage system or there may be a condition which requires payment of fees payable for the processing of the application for approval of a drainage system.

226.Before determining an application the Approving Body must consult a number of relevant bodies. If a connection to the sewer is proposed, it must consult the relevant sewerage undertaker; if the drainage system will discharge to a watercourse, it must consult the Environment Agency; if the drainage system is likely to affect a road, it must consult the relevant highway authority; if the drainage system is to discharge under, or directly or indirectly into a waterway managed by British Waterways, it must consult British Waterways; and finally it must consult the appropriate internal drainage board if the Approving Body thinks that the drainage system may directly or indirectly involve the discharge of water into an ordinary watercourse within that board’s district.

227.Once the Approving Body has made a decision, it must notify the applicant (or, in the case of a combined application, the planning authority), and any relevant consultees, of its decision as soon as it reasonably can.

228.The Secretary of State or Welsh Ministers may make regulations about the timing and procedure for determination of applications for approval and the consequences of the failure to comply with these regulations. These regulations are subject to the negative resolution procedure.

Non-performance bonds

229.Paragraph 12 explains what a non-performance bond is. When approving an application, the Approving Body may require the applicant to deposit a non-performance bond as a condition of granting approval. The value of the bond will be decided by the Approving Body, but it cannot exceed the best estimate of the most that it will cost to build the drainage system in line with the approved proposals. Sub-paragraph (6) provides for the Minister to issue guidance, to which approving bodies must have regard, about what amounts may be required for the bond.

230.If the Approving Body certifies that the drainage system has not been constructed in accordance with approved proposals or is unlikely to be completed, it may give a certificate leading to forfeit of the bond. Before doing this it must consult the applicant about whether it should do this. Once it has decided to issue a certificate leading to forfeit of the bond, it must then use the money to complete the drainage work in compliance with national standards. If any money is left over, the Approving Body must pay the remaining amount back to the applicant.

Fees

231.Paragraph 13 provides for the Minister to make regulations on fees for applications for drainage approval. The provisions allow for the regulations to provide for fees to be determined by reference to criteria specified in the regulations, for instance the extent or nature of the construction works. The regulations can also provide for fees to be paid by reference to the costs of work done by the authority to process the approval. In making the regulations, the Minister must have regard to the desirability that the income from fees does not significantly exceed the costs incurred in processing an approval.

Enforcement

232.Paragraph 14 requires the Minister to make an order to make provision about enforcement of the requirement for approval under this Schedule. The order can be used to make provision for taking enforcement action in cases where construction starts without approval of its drainage system, where any of the conditions that the approval was based on are breached or where construction of the drainage system does not follow the approved proposals.

233.The order can include provisions about notices including enforcement notices, stop notices, temporary notices and breach of condition notices; allowing for applications to be made to a court or tribunal; confer powers including discretionary powers on the Minister or other authorities, powers of entry, powers of inspection and powers to undertake and charge for remedial work; and provisions about the consequences of failure to comply with the order itself or notices produced under it. If the Minister wishes, the order can apply or make provisions similar to provision in the Town and Country Planning Act 1990.

234.The order under this paragraph will be subject to the affirmative resolution procedure.

Guidance

235.Paragraph 15 provides for the Minister to issue guidance, to which approving bodies must have regard, on the process of seeking and obtaining approval.

Sewers and roads

236.Paragraph 16 amends section 106A of the Water Industry Act 1991 and inserts a new section 106A. The effect of this amendment is to limit the existing right to connect to the public sewer in certain cases. Where the connection to the sewer is part of a drainage system which requires approval under this Schedule, connection will only be allowed where the application for approval of the drainage plans proposes a connection to the public sewer, and that application is approved by the Approving Body.

237.At present, under section 106(4) of the Water Industry Act, a sewerage company may refuse to allow a connection to the public sewer if it thinks that the mode of construction or condition of associated drains and sewers would be prejudicial to its sewerage system. This paragraph provides that the sewerage company will no longer be able to refuse a connection in respect of surface water on these grounds in a case where the sewer connection is part of the approved drainage system. It also provides that a connection to the sewer may not be refused on the grounds that drainage system drains more than one property or sewer, or absorbs water from other land as well as from premises and sewers.

238.Sub-paragraph (3) inserts a new subsection into section 115 of the Water Industry Act to require a sewerage undertaker to accept any drainage from a highway drain which is in accordance with a drainage system approved under this Schedule.

Duty to adopt

239.Paragraph 17 imposes a duty on the Approving Body to adopt any new drainage system which meets these conditions:

a.

Condition 1 is satisfied where the drainage system has been constructed in line with an approved drainage plan which conforms to the national standards.

b.

Condition 2 is satisfied where the Approving Body is satisfied that the drainage system has been built and functions in accordance with the approved plan (and complies with any conditions or approval) or alternatively where the Approving Body can, or has, issued a certificate that the non-performance bond will be used to complete the drainage system, for the reasons described under non-performance bonds. The Approving Body must also have regard to any guidance issued by the Minister on this condition.

c.

Condition 3 is satisfied if the system is a “sustainable drainage system”, as defined by regulations made by the Minister.

240.Where part of a drainage system is exempt from adoption, this duty to adopt continues to apply to the rest of the system as if it were a whole drainage system in its own right.

Exception 1: single property systems

241.Paragraph 18 provides that the Approving Body is not under a duty to adopt any drainage system, or part of a drainage system, which only provides drainage for single properties. The Minister can make regulations to define when a drainage system or part of a drainage system provides drainage for a single property.

Exception 2: Roads

242.Paragraph 19 provides that the Approving Body is not under a duty to adopt drainage systems, or parts of a drainage system which are also a publicly maintained road. This paragraph defines the term “publicly-maintained road” and provides that a reference to a “road” could refer to a road in its entirety or just a part of a road.

243.Where part of an adopted drainage system is a publicly maintained road, or where a drainage system is entirely contained within a publicly-maintained road, the road maintaining authority (the highway authority), must exercise its functions in accordance with the approved plan for the drainage system, including any conditions of approval, and in accordance with national standards. The functions affected would include the highway authority’s functions of maintaining a road, and arranging for it to be properly drained under the Highways Act 1980. The maintaining authority must also designate the road as a “street with special engineering difficulties” under section 63 of the New Roads and Street Works Act 1991.

244.If a road is part of a drainage system (for example, by being constructed of permeable paving) but is privately maintained, then that part of the drainage system will need to be adopted by the Approving Body in the same way as the rest of the system. If a private road which is part of a drainage system subsequently becomes adopted by the highway authority (and therefore becomes a publicly maintained road) the Approving Body’s adoption of that part of the drainage system will lapse.

Additional exceptions

245.Paragraph 20 allows the Minister to provide additional exceptions to the duty to adopt a drainage system. This power must be exercised by order and would be subject to the negative resolution procedure.

Power to Adopt

246.Paragraph 21 enables the Approving Body to voluntarily adopt a sustainable drainage system, where it is not under a duty to do so. The relevant Minister may make regulations defining the types of sustainable drainage systems which may be voluntarily adopted.

Effect of adoption

247.Paragraph 22 provides that where an Approving Body adopts a drainage system, it must maintain the drainage system in line with the National Standards.

Process of adoption in pursuance of duty to adopt

248.Paragraph 23 details the process of adoption where the Approving Body is under a duty to adopt the drainage system. The person who applied for approval, referred to as “the developer”, can formally request the Approving Body to adopt a drainage system (for example, when it considers that it has completed the system in line with the approved plans). But the Approving Body does not need to wait for a formal request to be made if it considers on its own initiative that it is under a duty to adopt the drainage system.

249.The Approving Body may prescribe the form required for the developer to make formal requests for adoption. Where an Approving Body receives a formal request for adoption, it must determine the request within any time limit imposed by the Minister by order. The Approving Body must notify the developer of its decision, and of its right to appeal as soon as is reasonably practicable.

250.Where an Approving Body give notice of adoption it must ensure that the notice specifies the extent of the drainage system being adopted. The notice must be copied to the relevant sewerage undertaker. The notice (together with details of the arrangements for access and maintenance in the approved plans) must be copied to anyone appears to owns land on which the drainage system is located, and anyone whose property appears to be drained by the system. The notice must also be copied to the developer and any other statutory consultees to the approval process.

251.The Approving Body must also include the drainage system in the local authority register which is established under Part 1 of the Act, and designate any parts of the drainage systems which are eligible for designation and not owned by the Approving Body. It must also release any unused non-performance bond which was paid as a condition of approval back to the developer.

252.Finally, the Approving Body must designate any adopted part of the drainage system that is a street as a “street with special engineering difficulties”, as under section 63 of the New Roads and Street Works Act 1991. The definition of “street” in this context is set out in section 48 of the New Roads and Street Works Act 1991.

253.The Minister can make regulations about timing, and manner of compliance with these obligations. These regulations are subject to the negative resolution procedure.

Process of Voluntary adoption

254.Paragraph 24 sets out what happens where the duty of adoption does not apply to a drainage system, but the Approving Body nonetheless decides to adopt it. When doing so it must notify the relevant sewerage undertaker and anyone who owns land on which the drainage system is located or from which the drainage system will drain water. The notification must specify the extent of the drainage system which is being adopted.

255.The Approving Body must also include the drainage system in the local authority register which is established under Part 1 of the Act, and designate any parts of the drainage systems which are on third party land and which are eligible to be designated under Schedule 1 of the Act.

256.The Minister can make regulations about the timing and manner in which notification, registration and designation are carried out. Any such regulations will be subject to the negative resolution procedure.

Appeals

257.Paragraph 25 requires the Minister to make regulations providing a right of appeal against decisions about applications for approval (including decisions about conditions), and decisions about the duty to adopt. The regulations must specify jurisdiction for appeals on the Minister, a court or tribunal, and make provision for the procedures and circumstances for appeal.

258.The first set of regulations made under this paragraph will be subject to the affirmative resolution procedure.

Building Act 1984

259.Paragraph 26 provides for changes to the Building Act 1984.

260.Section 21 of the Building Act 1984 provides that when a developer deposits plans of a building or extension in accordance with Building Regulations, the local authority can direct that the building be connected to a sewer. This paragraph amends section 21 so as to provide that where the construction work requires approval under this Schedule, the power in section 21 will no longer apply.

261.Section 59(1)(c) of the Building Act 1984 provides that where a cesspool, private sewer, drain or other specified types of drainage work which are provided for a building are in such a condition so as to be prejudicial to health or a nuisance, the local authority may require the owner of the building to carry out work. This paragraph extends the power in this section so that it also applies to sustainable drainage systems (whether or not they are adopted) in the same way as it applies to cesspools, sewers, drains etc. Insofar as it relates to sustainable drainage systems, the power may be exercised by the Approving Body – under the Building Act 1984 the powers are only available to district councils, whereas Approving Bodies will generally be county councils. The Building Act 1984 is amended to include a reference to these provisions.

262.This paragraph amends section 84(1) of the Building Act 1984 to ensure that sustainable drainage systems are appropriately dealt with in the relevant Building Act provisions relating to courts, yards and passages.

New Roads and Street Works Act 1991

263.Paragraph 27 provides for changes to the New Roads and Street Works Act 1991 to “sign-post” the fact that this Act contains duties to designate sustainable drainage systems under section 63 of the New Roads and Street Works Act 1991 and extends the criteria for designation to reflect this.

Works on public land

264.Paragraph 28 concerns statutory works conducted by a statutory undertaker on public land which affects (or may affect) that land’s drainage system. The Minister may make regulations requiring a statutory undertaker to notify the approving body before starting such works.

265.Sub-paragraphs (2) and (3) make provision about the definitions of the terms “public land”, “statutory undertaker” and “statutory work.”

266.The regulations may specify criteria for determining whether works affect a land’s drainage system, and may include provision on timing and procedure. The regulations may also specify the consequences of a failure to comply with the regulation’s provisions.

267.The regulations may also require, or enable, the approving body to require a statutory undertaker carrying out such works to carry out further work on the system. This may include a requirement to leave the system in a state approved by the approving body, having regard to national standards for sustainable drainage.

268.The regulations could also give powers to the approving body to undertake work and recover their costs.

269.Finally, the regulations may amend existing primary legislation to include a cross-reference to the new regulations.

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