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home > using suds > legal issues > planning and approval england and wales
Drainage in England and Wales can involve a number of different bodies, including private landowners, local authorities, sewerage undertakers and the Environment Agency. Environmental and conservation duties are set out in national and international legislation, and Agenda 21 promotes this philosophy at a local level. There is, however, no specific legislation to ensure that issues of sustainability are considered with regard to drainage. Current drainage law was drawn up before the widespread use of SUDS. While this poses no legal difficulty, the responsibility for provision, operation and maintenance of SUDS is not clearly set out. Just as successful designs require a partnership between different members of the development team, adoption and maintenance will need a similar joint approach.
This Planning Policy Statement seeks to ensure that flood risk is considered on a catchment scale. It directly identifies the potential for SUDS to reduce flooding downstream of developments and promotes the development of teamwork to encourage the incorporation of sustainable drainage in developments. It suggests that local authorities should work closely with the Environment Agency, sewerage undertakers, navigation authorities and prospective developers to enable surface water runoff to be controlled as near to the source as possible through SUDS.
When implemented in development plans and the determination of individual planning applications, PPS25 should encourage the wider use of SUDS and provide the associated sustainability benefits. A copy of PPS25 can be obtained by following this link.
Public drainage responsibilities are divided between four main bodies:
Local authorities act as planning authorities, and also have responsibility for local roads, public landscaping and local land drainage. The Highways Agency controls trunk road drainage, while the sewerage undertakers have responsibility for the sewers carrying surface water from private impermeable areas such as roof and drives. New development is controlled by local authority planning departments, with allowable discharges and consents negotiated with the Environment Agency or the appropriate sewerage undertaker. The Environment Agency has general flood defence and land drainage powers, including a supervisory duty over all flooding, but these are primarily in respect of main rivers.
Local authorities have the role of implementing Agenda 21 and developing strategies to secure sustainability at a local level. This general principle applies to drainage, and consideration of sustainable drainage is increasingly being included in Development Plans and regional planning guidance.
The ownership and maintenance of conventional piped drainage systems is clearly defined in Sewers for Adoption (Water Services Association, 1994). However, by their nature, many SUDS can be considered either drainage or landscape features, and there is no clear guidance on who is responsible for the operation and maintenance of such facilities. A trial framework agreement has been drawn up in Scotland to remove this barrier to the greater use of SUDS.
Due to the different legal duties, a country-wide agreement of this kind will take time to evolve in England and Wales. However there is scope for individual maintenance agreements to be negotiated on a site-by-site basis.
Formal approval for a drainage system is needed from:
The planning process may be used by other interested parties, such as non-governmental organisations and pressure groups to promote their views.
The planning system is used to co-ordinate consultation between the approving authorities but the licence and consents have to be applied for separately – they are not granted automatically when a planning application is approved.
The planning authority draws up local and structure plans. It identifies areas for development and the standards of that development in terms of land use and building density. These are based on judgements rather than strict regulations. The clear plans allow developers to make decisions about how a site may be developed. The specification of SUDS in a plan will enable the developer to work out the impact of the drainage system at an early stage. This may be important in terms of land take required by some drainage devices.
Planning authorities can set criteria for the design of the drainage system that will fulfil some of their amenity objectives, such as provision of public open space. In appropriate circumstances, a planning authority may seek agreements to ensure continued maintenance commitments are met. The drainage criteria should fit into an overall strategy.
Before construction can proceed, Building Control bodies have to be satisfied that adequate provision has been made for drainage, that the proposed system will not affect the integrity of buildings and meets the requirements of The Building Regulations 2002 (Approved document part H 2002) (The Stationery Office). Building Control departments will therefore be interested in the location of drainage systems and their proximity to structures. Thus the proximity of infiltration devices may be important on unstable soils. Interpretation of The Building Regulations might vary between authorities.
If a development includes road drainage, a consent should be obtained from the highway authority (usually a local authority department). Trunk roads are the responsibility of the Highways Agency.
Each authority sets down standards which developers must follow throughout the construction process to ensure that adoptable roads are of satisfactory construction, safe for the public to use and easily maintained. Effective road drainage is fundamentally important to road safety and to the integrity and structural stability of the road including its footways, verges and margins. When considering construction consent applications, local authorities will want to be satisfied that SUDS employed in particular locations meet their road drainage requirements and will not require onerous maintenance.
The Local Authorities have roles in flood defence, land drainage and maintenance of public open space.
The sewerage undertaker (usually the water service company) approves plans showing those parts of the drainage system which will be adopted under section 104 of the Water Industry Act and negotiates connection to or adoption of sewers that are covered by the document, Sewers for adoption (Water Services Association, 1994) .
The Environment Agency is the body responsible for the protection of controlled waters in England and Wales and will be a consultee to the Planning Authority on drainage issues. The Agency can give general advice on the potential for pollution within a catchment and on good practice to prevent water pollution. Some drainage discharges may require a Water Resources Act 1991 consent or a Groundwater regulations 1998 authorisation from the Agency. Moreover, the Agency has powers to serve notices requiring works to be carried out to protect water courses and groundwater quality.
Natural England and the Countryside Council for Wales/ Cyngor Cefn Gwlad Cymru are the governments’ statutory advisers on sustaining natural beauty, wildlife and the opportunity for outdoor enjoyment. They can offer advice on the amenity value of the proposed developments.
Runoff from industrial areas may be subject to a prohibition notice if the water is still contaminated to a degree, especially if there is a likelihood of groundwater pollution. Flood defence consent may also be required to regulate the flow of runoff to some watercourses. Any consent will probably be of a descriptive rather than numeric nature. The Environment Agency should be consulted regarding all discharges to marine waters, watercourses and aquifers and in some cases, where surface water is likely to be contaminated an authorisation may be required.