http://www.legislation.gov.uk/wsi/2018/1182The Sustainable Drainage (Enforcement) (Wales) Order 2018texttext/xmlenStatute Law DatabaseWATER INDUSTRY, WALES2026-03-25Expert Participation2020-02-05 This Order provides for the enforcement of breach of the approval required (“the requirement for approval”) under paragraph 7(1) of Schedule 3 to the Flood and Water Management Act 2010 (c. 29) (“the Act”) in relation to drainage systems for construction work. 2018 No. 1182 (W. 241)Water Industry, WalesThe Sustainable Drainage (Enforcement) (Wales) Order 2018Made13 November 2018Coming into force7 January 2019The Welsh Ministers, in exercise of the powers conferred by sections 32 and 48(2) of, and paragraphs 4(a) and 14 of Schedule 3 to, the Flood and Water Management Act 2010 , make the following Order.In accordance with paragraph 14(5)(b) of Schedule 3 to that Act a draft of this instrument has been laid before and approved by, a resolution of the National Assembly for Wales. PART 1 IntroductionTitle and commencement11The title of this Order is the Sustainable Drainage (Enforcement) (Wales) Order 2018.2This Order comes into force on 7 January 2019.Interpretation21In this Order—“the 1990 Act” (“Deddf 1990”) means the Town and Country Planning Act 1990 ;“appellant” (“apelydd”) means a developer who makes an appeal under this Order;“approval” (“cymeradwyaeth”) means the approval required under paragraph 7(1) of Schedule 3 for a drainage system for construction work;“authorised person” (“person awdurdodedig”) means a person authorised by an approving body;“breach” (“toriad”), in relation to the requirement for approval, means—construction work is commenced without approval,a condition of approval is breached, orconstruction work does not conform to the approved proposals;“construction area” (“ardal adeiladu”) means—the area of land identified on a plan accompanying an application for planning permission, orif an application for planning permission has not been made, the area of land on which construction work has commenced or is proposed to be commenced;“developer” (“datblygwr”) means a person who commences or proposes to commence construction work;“electronic communication” (“cyfathrebiad electronig”) has the meaning given in section 15(1) of the Electronic Communications Act 2000 ;“enforcement notice” (“hysbysiad gorfodi”) has the meaning given in article 8;“local planning authority” (“awdurdod cynllunio lleol”) has the meaning given in section 1(1B) of the 1990 Act;“notice of appeal” (“hysbysiad apêl”) means a notice under article 14;“powers of entry” (“pwerau mynediad”) means the powers conferred by article 4;“Schedule 3” (“Atodlen 3”) means Schedule 3 to the Flood and Water Management Act 2010;“stop notice” (“hysbysiad stop”) has the meaning given in article 10;“temporary stop notice” (“hysbysiad stop dros dro”) has the meaning given in article 6;“time limit for making an appeal” (“terfyn amser ar gyfer gwneud apêl”) has the meaning given in article 13.2In this Order a reference to “construction work” is to be construed as a reference to construction work having drainage implications . PART 2 Exercise of enforcement functionsAgreement to exercise enforcement function31An approving body may agree with the local planning authority (“the Authority”) that the Authority may exercise an enforcement function under this Order as if it were the approving body.2The agreement—amay relate to any breach of the requirement for approval, andbmay contain arrangements to reimburse the costs incurred by the Authority in exercising the enforcement function.3In this article, “enforcement function” means any function exercisable by the approving body in relation to—apowers of entry;ba temporary stop notice, enforcement notice or stop notice.Powers of entry41An authorised person may at any reasonable time enter a construction area (except any premises in the construction area used wholly or mainly as a private dwelling house) to determine if—athere has been a breach of the requirement for approval, orba temporary stop notice, stop notice or enforcement notice has been complied with.2Paragraph (1) is subject to paragraph (4).3The authorised person must on request produce evidence of authorisation.4In an emergency, powers of entry may be exercised at any time.5An authorised person may not exercise powers of entry to determine if there has been a breach of the requirement for approval if a drainage system for the construction work has been adopted.6A justice of the peace may, by signed warrant, permit an authorised person to enter any premises in a construction area, if necessary by reasonable force, if the justice on sworn information in writing is satisfied—athat there are reasonable grounds to enter the premises for the purposes of paragraph (1) of this article, andbthat any of the conditions in paragraph (7) are met.7The conditions are—aentry to the premises has been, or is likely to be, refused, and notice of the intention to apply for a warrant has been given to the occupier;basking for admission to the premises, or giving such a notice, would defeat the object of the entry;centry is required urgently;dthe premises are unoccupied or the occupier is temporarily absent.8A warrant is valid for 3 months.9An authorised person entering premises which are unoccupied or from which the occupier is temporarily absent must leave the premises as effectively secured against unauthorised entry as they were before entry.Compensation for loss resulting from exercise of powers of entry51A developer or other person is entitled to compensation if—aan authorised person enters a construction area or any premises in a construction area in exercise of powers of entry but finds no evidence of a breach of the requirement for approval, andbas a result of the exercise of those powers the developer or other person incurs loss.2If an authorised person enters a construction area or any premises in a construction area in exercise of powers of entry and a breach of the requirement for approval is found, compensation is payable—ato the developer for any loss resulting only from an unreasonable exercise of those powers;bto any other person as if no evidence of a breach were found.3Any claim for compensation must be made to the approving body within 12 months after the exercise of those powers.4Disputes about compensation are to be determined by the Upper Tribunal. PART 3 NoticesTemporary stop notices61An approving body may give a notice (“a temporary stop notice”) to a developer if the approving body has reason to believe that—athe developer has breached the requirement for approval, andbit is expedient that the construction work stop immediately.2A temporary stop notice must be in writing and must—aspecify the activity that is believed to be a breach,bgive reasons for that view,cprohibit the developer from continuing with the activity, anddspecify the consequences of non-compliance with the notice.3An approving body may at any time withdraw a temporary stop notice by giving written notice to a developer setting out reasons for the decision to withdraw it.4A temporary stop notice has effect from the time it is given and, unless it is earlier withdrawn, ceases to have effect at the end of—athe period of 4 weeks beginning with the day it is given, orbany shorter period specified in the notice, beginning with the day it is given.5A second or subsequent temporary stop notice must not be given in respect of the same activity unless the approving body has first taken some other enforcement action in relation to the breach.Compensation for loss resulting from temporary stop notice71A developer who suffers loss as a result of being given a temporary stop notice is entitled to compensation if the approving body—awithdraws the notice, orbdoes not take any further enforcement action.2Any claim for compensation must be made to the approving body within 12 months after the notice is withdrawn or ceases to have effect, whichever is the earlier.3Disputes about compensation are to be determined by the Upper Tribunal.Enforcement notices81If a developer breaches the requirement for approval, the approving body may give a notice to the developer requiring the developer to take steps to remedy the breach (“an enforcement notice”).2An enforcement notice may be given at any time before a drainage system for the construction work is adopted but not later than 4 years after the breach occurs.3An enforcement notice must be in writing and must specify—athe construction area to which the notice relates,bdetails of the breach,cthe steps which the developer must take to remedy the breach,dthe date by which the steps must be taken,erights of appeal, including the time limit for making an appeal, andfthe consequences of non-compliance with the notice.4An enforcement notice must not require the developer to take any steps until at least 4 weeks after the date on which the notice is given.5An approving body may at any time by written notice to a developer—awithdraw an enforcement notice, giving reasons, orbvary an enforcement notice by—ireducing the amount of work necessary to comply with the notice, oriiextending the time for taking any step specified in the notice.Steps required by an enforcement notice91For construction work commenced without approval, the enforcement notice must require the developer—ato apply for approval (the application to be made as if construction work had not commenced), orbto restore the construction area to the condition it was in before the construction work began.2For a breach of a condition of approval, the enforcement notice must require the developer—ato carry out work to ensure the drainage system complies with the conditions of approval, orbto restore the construction area to the condition it was in before the construction work began.3For construction work that does not conform to the approved proposals, the enforcement notice must require the developer—ato carry out work to ensure the drainage system complies with the approved proposals, orbto restore the construction area to the condition it was in before the construction work began.4If a developer fails to comply with an enforcement notice, the approving body—amay take the steps specified in the enforcement notice or authorise another person to take the steps, andbmay require the developer to pay expenses incurred under sub-paragraph (a), such expenses to be recoverable as a debt.5The approving body or a person authorised under paragraph (4)(a) may at any reasonable time enter a construction area to take the steps specified in the enforcement notice.Stop notices101An approving body may give a notice (“a stop notice”) to a developer if—athe developer has appealed against an enforcement notice, andbthe approving body thinks it is expedient that construction work on the land to which the enforcement notice relates should stop immediately.2A stop notice may prohibit a developer from continuing with the construction work specified in the notice until—athe appeal against the enforcement notice is determined or withdrawn, orbthe approving body—iwithdraws the stop notice, oriitakes further enforcement action.3A stop notice must be in writing and must specify—athe date on which it takes effect,bthe grounds on which it was served,cthe consequences of not complying with it, anddthe enforcement notice to which it relates.4A copy of the enforcement notice must be annexed to the stop notice.5An approving body may at any time withdraw a stop notice by giving written notice to a developer setting out reasons for the decision to withdraw it.Register of notices111An approving body must keep a register containing information relating to all temporary stop notices, enforcement notices and stop notices it gives.2The register must contain the information prescribed for the purpose of section 188(1) of the 1990 Act and by article 30 of the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 but with the modifications described in paragraph (3).3The modifications are—aany reference to the authority is to be read as a reference to the approving body;bany reference to service of the notice or copies of the notice is to be read as a reference to the giving of the notice;cany reference to a breach of planning control is to be read as a reference to a breach of the requirement for approval;dany reference to a breach of condition notice is to be read as a reference to a stop notice or temporary stop notice.4The information must be entered on the register as soon as is practicable but not more than 2 weeks after a notice is given.5An entry relating to a notice must be removed from the register if the notice is withdrawn or ceases to have effect. PART 4 Appeals against enforcement noticesRight of appeal121A developer who is given an enforcement notice may by notice appeal to the Welsh Ministers against the decision to give it.2The grounds of appeal are that—athe decision was based on an error of fact;bthe decision was wrong in law;cthe decision was unreasonable;dthere is no breach of the requirement for approval.3An enforcement notice is suspended until an appeal is determined or withdrawn.Time limit for making an appeal13An appeal must be made within the period of 4 weeks beginning with the day on which a developer is given an enforcement notice.Making an appeal141Notice of an appeal against an enforcement notice must—abe in writing, on a form obtained from the Welsh Ministers,bstate the grounds of appeal,cstate the facts on which the appellant will rely in support of each of those grounds and any other particulars of the case the appellant intends to put forward in relation to the appeal, anddinclude the name, address (including any email address) and telephone number of the appellant and any agent acting for the appellant.2The notice must be sent to the Welsh Ministers accompanied by—aa statement as to whether the appellant wishes to have the appeal dealt with by way of written representations, a hearing or an inquiry,ba copy of the enforcement notice, andca copy of any related stop notice or temporary stop notice.3A developer who sends a notice of appeal to the Welsh Ministers must, at the same time, send a copy of the notice of appeal and accompanying documents to the approving body.4In this article, “accompanying documents” means the documents mentioned in paragraph (2).5Any notice or other document required in this article to be sent or provided, may be sent by post or electronic communication.Use of electronic communications151Paragraphs (2) to (6) of this article apply where an electronic communication is used by an appellant for the purpose of fulfilling any requirement in article 14.2The requirement is taken to be fulfilled where the notice or other document transmitted by means of the electronic communication is—acapable of being accessed by the recipient,blegible in all material respects, andcsufficiently permanent to be used for subsequent reference.3In paragraph (2) “legible in all material respects” means that the information contained in the notice or other document is available to the recipient to no lesser extent than it would be if sent or given by means of a document in printed form.4Where the electronic communication is received by the recipient outside the recipient's business hours, it will be taken to have been received on the next working day.5A requirement in article 14 that any notice or other document should be in writing is fulfilled where that document meets the criteria in paragraph (2) and “written” and cognate expressions are to be construed accordingly.6Where an appellant sends any notice or other document to the Welsh Ministers using electronic communications, they will be taken to have agreed—ato the use of such communications for all purposes relating to the appeal which are capable of being carried out electronically;bthat the appellant's address for the purpose of such communications is the address incorporated into or otherwise logically associated with, the notice or other document;cthat the appellant's deemed agreement under this paragraph will subsist until the appellant gives notice in accordance with article 16, of a wish to revoke the agreement.Withdrawal of consent to the use of electronic communications161Where an appellant is no longer willing to accept the use of electronic communications for any purpose of this Order which is capable of being effected electronically, the appellant must give notice in writing—awithdrawing any address notified to the Welsh Ministers or to an approving body for that purpose, orbrevoking any agreement entered into with the Welsh Ministers or with an approving body for that purpose.2Withdrawal or revocation under paragraph (1) is final and takes effect on the later of—athe date specified by the appellant in the notice but that date must not be less than 1 week after the date on which the notice is given, orbthe expiry of the period of 1 week beginning with the date on which the notice is given.Procedure for appeals171Paragraphs (2) to (4) of this article apply where the Welsh Ministers are in receipt of a valid notice of appeal.2Section 319B (determination of procedure for certain proceedings: Wales) of the 1990 Act and the Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017 (“the 2017 Regulations”) apply to an appeal under this Order with the modifications described in paragraph (3), as if it was an appeal brought under section 174 (appeal against enforcement notice) of the 1990 Act.3The modifications are—aany reference to an “appellant” has the meaning given in article 2;bany reference to an “appeal” under section 174 of the 1990 Act is to be read as a reference to an appeal under this Order;cany reference to an “appointed person” is a reference to a person appointed by the Welsh Ministers under this Order to report to the Welsh Ministers;dany reference to an “enforcement appeal” is to be read as a reference to an appeal against an enforcement notice under this Order;eany reference to an “enforcement notice” under section 172(1) of the 1990 Act is to be read as a reference to an enforcement notice under this Order;fa reference to “full statement of case” is to be read as a reference to the statement in article 14(1)(c);gany reference to “interested persons” is to be read as a reference to the statutory consultees specified in paragraph 11(3) of Schedule 3;hany reference to a “local planning authority” is to be read as a reference to the approving body which gave an enforcement notice under this Order.4In this article “valid notice of appeal” means a notice of appeal—awhich complies with the requirements of article 14(1),bis sent to the Welsh Ministers—iin accordance with article 14(2),iiwithin the period specified in article 13, andcin relation to which the appellant certifies that a copy has been sent to the approving body in accordance with article 14(3).Determination of an appeal181An appeal under this Order is to be determined by the Welsh Ministers.2For the purposes of paragraph (1), the Welsh Ministers may appoint a person (“the appointed person”) to report to the Welsh Ministers.Powers of the Welsh Ministers when determining an appeal19When determining an appeal against an enforcement notice, the Welsh Ministers may—adetermine that the notice is to cease to have effect, orbconfirm or vary the notice.Evidence and costs201Subsections (2) and (3) of section 250 of the Local Government Act 1972 (local inquiries: evidence and costs) apply with the modifications described in paragraph (2) to an inquiry under this Order as they apply to local inquiries under that section.2The modifications are—aany reference to the person appointed to hold the inquiry is to be read as a reference to the person appointed by the Welsh Ministers under article 18(2);bany reference to a local authority is to be read as a reference to an approving body.3Section 322C of the 1990 Act (costs: Wales) applies in relation to a hearing or inquiry under this Order as it applies in relation to a hearing or local inquiry referred to in that section.4Subject to paragraph (3), the costs of a hearing or inquiry held under this Order must be defrayed by the Welsh Ministers. PART 5 OffencesOffence of failure to comply with a notice211A person who fails to comply with a temporary stop notice, enforcement notice or stop notice is guilty of an offence, and is liable—aon summary conviction, to a fine ..., orbon conviction on indictment, to a fine.2In determining the amount of the fine, the court must have regard in particular to any financial benefit which has accrued, or has appeared to accrue, to the person convicted in consequence of the offence.Offence of obstruction22A person who wilfully obstructs an authorised person who is exercising powers of entry—ais guilty of an offence, andbis liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.Offences by bodies corporate231If an offence under this Order committed by a body corporate is proved—ato have been committed with the consent or connivance of an officer, orbto be attributable to any neglect on the part of an officer—the officer, as well as the body corporate, is guilty of the offence and liable to be proceeded against and punished accordingly.2In paragraph (1), “officer” in relation to a body corporate, means—aa director, manager, secretary or other similar officer of the body, orba person purporting to act in any such capacity.3If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with the member's functions of management as it applies to an officer of a body corporate.Offences by partnerships and unincorporated associations241Proceedings for an offence under this Order alleged to have been committed by a partnership or an unincorporated association must be brought against the partnership or association in the name of the partnership or association.2For the purposes of such proceedings—arules of court relating to the service of documents have effect as if the partnership or unincorporated association were a body corporate, andbthe following provisions apply as they apply in relation to a body corporate—isection 33 of the Criminal Justice Act 1925 ;iiSchedule 3 to the Magistrates' Courts Act 1980 .3A fine imposed on a partnership or unincorporated association on its conviction of an offence under this Order is to be paid out of the funds of the partnership or association.4If an offence under this Order committed by a partnership is proved—ato have been committed with the consent or connivance of a partner, orbto be attributable to any neglect on the part of a partner—the partner, as well as the partnership, is guilty of the offence and liable to be proceeded against and punished accordingly.5In paragraph (4), “partner” includes a person purporting to act as a partner.6If an offence under this Order committed by an unincorporated association (other than a partnership) is proved—ato have been committed with the consent or connivance of an officer of the association, orbto be attributable to any neglect on the part of such an officer—the officer, as well as the association, is guilty of the offence and liable to be proceeded against and punished accordingly.7In paragraph (6), “officer” in relation to an unincorporated association, means—aan officer of the association or a member of its governing body, orba person purporting to act in such a capacity.Hannah Blythyn Minister for Environment under the authority of Cabinet Secretary for Energy, Planning and Rural Affairs, one of the Welsh Ministers

(This note is not part of the Order)

This Order provides for the enforcement of breach of the approval required (“the requirement for approval”) under paragraph 7(1) of Schedule 3 to the Flood and Water Management Act 2010 (c. 29) (“the Act”) in relation to drainage systems for construction work.

Article 3 provides that an approving body may agree with the local planning authority that that authority may exercise enforcement functions under this Order on behalf of the approving body.

Article 4 provides for powers of entry onto property of a person authorised by an approving body for the purpose of ascertaining whether there has been a breach of requirement for approval or whether a temporary stop notice, enforcement notice or stop notice has been complied with, including circumstances in which an application may be made to a court for a warrant.

Article 5 provides for the circumstances in which a developer or other person may recover compensation in relation to loss incurred as a result of the exercise of powers of entry pursuant to article 4.

Article 6 confers power on an approving body to give a temporary stop notice to a developer, where the body has reason to believe that a developer has breached the requirement for approval. The duration of such a notice is limited in accordance with that article.

Article 7 provides for the circumstances in which a developer may recover compensation in relation to loss incurred as a result of being given a temporary stop notice.

Article 8 confers power on an approving body, where a developer has breached the requirement for approval, to give a notice to the developer (an “enforcement notice”), specifying the steps to be taken by the developer to remedy the breach.

Article 9 specifies the steps to be taken by a developer, that must be included in an enforcement notice in specified circumstances, and provides for the steps the approving body may take in the event of non-compliance with the notice.

Article 10 confers power on an approving body to give a developer a stop notice, in circumstances where the developer has appealed against an enforcement notice and the approving body thinks it expedient that the construction work to which the enforcement notice relates, should stop immediately. Article 10 also provides for the circumstances in which such a notice ceases to have effect.

Article 11 requires the approving body to maintain a register of all stop notices, temporary stop notices and enforcement notices that it gives, and prescribes the information to be entered in the register.

Article 12 provides for a developer to appeal to the Welsh Ministers against an enforcement notice on grounds specified in the article.

Article 13 prescribes the period within which an appeal must be made.

Article 14 prescribes the content of a notice of appeal, and the actions that must be taken to make an appeal.

Articles 15 and 16 provide respectively, for the use of electronic communications and withdrawal of consent to the use of electronic communications in relation to appeals.

Article 17 makes provision for section 319B of the Town and Country Planning Act 1990 (c. 8) (“the 1990 Act”) and the Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017 (S.I. 2017/544 (W. 121)) to apply, with appropriate modifications, to an appeal against an enforcement notice under this Order, as if it was an appeal against a planning enforcement notice.

Article 18 provides that the Welsh Ministers are to determine an appeal under this Order.

Article 19 provides for the powers of the Welsh Ministers in determining an appeal against an enforcement notice.

Article 20 provides for procedure in relation to evidence in a hearing or inquiry, by applying, subject to appropriate modifications, subsections (2) and (3) of section 250 of the Local Government Act 1972 (c. 70) (local inquiries: evidence and costs), and in relation to costs, by applying section 322C of the 1990 Act (costs: Wales).

Article 21 provides for an offence of failure to comply with a temporary stop notice, enforcement notice or stop notice.

Article 22 provides for an offence of wilful obstruction of a person authorised by an approving body who is exercising powers of entry under Article 4.

Article 23 makes provision for liability of officers and members where an offence under this Order is committed by a body corporate.

Article 24 makes provision for liability of partnerships and partners, where an offence under this Order is committed by a partnership, and for the liability of unincorporated associations and their officers, where such an offence is committed by an unincorporated association.

A regulatory impact assessment in relation to Wales has been prepared on the likely costs and benefits of complying with this Order. A copy can be obtained from the Welsh Government, Cathays Park, Cardiff, CF10 3NQ and is published on www.gov.wales.

2010 c. 29. Schedule 3 was amended by sections 21(3), 88(a) and 88(b) of the Water Act 2014 (c. 21) and S.I. 2012/1659 and 2013/755 (W. 90).1990 c. 8.“Construction work” is defined in paragraph 7(2)(a) of Schedule 3.2000 c. 7. Section 15(1) was amended by paragraph 158 of Schedule 17 to the Communications Act 2003 (c. 21).Section 1(1B) was inserted by section 18(3) of the Local Government (Wales) Act 1994 (c. 19).“Drainage implications” is defined in paragraph 7(2)(b) of Schedule 3.“Approving body” is defined in paragraph 6 of Schedule 3.Section 188(1) was amended by paragraph 30(a) of Schedule 7 and Part 1 of Schedule 19 to, the Planning and Compensation Act 1991 (c. 34) and by paragraph 24(5) of Schedule 6 to the Local Government (Wales) Act 1994 (c. 19). There are other amendments not relevant to this Order.S.I. 2012/801 (W. 110).S.I. 2017/544 (W. 121).1972 c. 70. Section 250 has been amended by sections 37, 38 and 46 of the Criminal Justice Act 1982 (c. 48); section 49(2) of and Schedule 12 to the Housing and Planning Act 1986 (c. 63) and by the Statute Law (Repeals) Act 1989 (c. 43).Section 322C was inserted by section 49 of the Planning (Wales) Act 2015 (anaw 4).1925 c. 86. Section 33 was amended by Schedule 6 to the Magistrates Courts Act 1952 (c. 55); paragraph 19 of Schedule 8 to the Courts Act 1971 (c. 23) and Schedule 10 to the Courts Act 2003 (c. 39).1980 c. 43. Schedule 3 was amended by Schedule 13 to the Criminal Justice Act 1991 (c. 43) and paragraphs 51(13)(a) and (b) of Schedule 3 to the Criminal Justice Act 2003 (c. 44).Words in art. 21 omitted (5.2.2020) by virtue of The Sustainable Drainage (Enforcement) (Wales) (Amendment) Order 2020 (S.I. 2020/120), arts. 1(2), 2