District Councils’ Network
Response to ‘Delivering Sustainable Drainage Systems’
consultation – Sept/ Oct 2014
Sent by email to: suds@defra.gsi.gov.uk
About our Organisation
The District Councils’ Network (DCN) is a cross-party member led network of
200 district councils. We are a Special Interest Group of the Local
Government Association (LGA), and provide a single voice for district
councils within the LGA. We lobby central government, the political parties
and other stakeholders directly on behalf of our members, as well as
commissioning research, providing support, and sharing best practice.
We welcome the opportunity to respond to this consultation and make this
submission on behalf of our member authorities.
To discuss this submission further please contact Jerry Unsworth, DCN
Planning Project Officer, jerry@unsworthplanning.co.uk or Catherine Evans,
DCN Manager, catherine.evans@local.gov.uk
Summary of the DCN’s position

A key concern with the consultation proposals is the longer-term
maintenance and management of SuDS and funding arrangements.
 Whilst it is sensible to coordinate overall design of SuDS with the
planning process we consider that the planning system is not suited to
the detailed technical approval, adoption, enforcement and
maintenance sides.
 We are concerned about liabilities and responsibilities for management
and maintenance falling back on local authorities.
 We are concerned that the regime would add significant cost and
staffing demands on local councils. If the proposals are pursued this
will need to be addressed under the ‘new burdens’ doctrine.
 It appears that clear mandatory standards are needed. Inclusion in
Planning Practice Guidance would mean that, as material
considerations, they have to be balanced against other considerations
that may take precedence. An inconsistent national approach on a
critical issue is likely to emerge.
 It is evident that considerable further thought is needed to how the
regime will operate so that a more robust solution is developed.
 The DCN will welcome involvement in how this is devised.
 We request that further consultation is undertaken on the finally
preferred regime.
The DCN Response to the Consultation Questions
Q4. Do you agree that the proposed revision to planning policy would deliver
sustainable drainage which will be maintained? If not, why?
Q4 Summary
NO – because of uncertainties around the approval, implementation and
maintenance regime put forward.
Whilst it is sensible to coordinate the overall design SuDS with the planning process,
so site layout and design considerations are approached in an integrated way, we
do not consider that the planning system (or District Councils generally) is suited to
the detailed technical approval, enforcement of implementation (leading to
adoption) and the long-term role envisaged.
We consider that there should be a requirement for developers to comply with
national standards and that a regime whereby the standards are ‘material
considerations’ within planning guidance is unlikely to give them enough strength.
A different regime is needed.
Q4 Detailed comment
Ensuring delivery requires inspection during construction - such as occurs under the
Building Regulations. As a matter of course planners do not proactively check
development as it is being constructed. This has significant implications for the
proposal to use the planning regime.
District Councils do not have the staff numbers to enable checking, regular
inspection and if necessary enforcement / prosecution of each and every SuDS
scheme in perpetuity. Experience of existing SuDS schemes by our member
authorities suggests that to be effective SuDS schemes need inspecting on an
annual basis and remedial maintenance action taken.
Unless a requirement for such an inspection was introduced - critically with a cost
recovery fee - then it could not be enforced through the planning regime. Also
planning enforcement officers do not have the expertise to inspect and test SuDS
schemes and a (funded) solution would be needed.
The planning stage is frequently relatively early in the development process and we
are concerned that it is not well suited to the level of construction detail that would
be required for SuDS work.
This is likely to lead to SuDS details being dealt with by planning condition to
reduce the burden on the applicant, creating a new pressure on Local Planning
Authorities (LPAs) to obtain detailed expertise and determine “details reserved by
condition” applications on SuDS proposals within 8 weeks.
The use of planning conditions has a number of risks and we would question
whether it is the right mechanism for enforcing the long-term management and
maintenance of SUDs schemes:
-
A Council may be expected to serve a Breach of Condition Notice upon a
householder and ultimately take them to court if they fail to maintain the
system.
If a planning condition is breached for 10 years +, a council cannot enforce
its requirements – with major implications for long-term maintenance.
Experience suggests that when SuDS details are presently submitted they are
rarely accompanied by all the information required by the Environment
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Agency (EA) or Lead Local Flood Authority (LLFA) and the information
subsequently required can take considerable time to obtain. This could
result in substandard SuDS proposals being accepted.
If conditions are to feature we suggest model conditions are used (adapted when
necessary) together with clear guidance on consultation arrangements, technical
approval and what local planning authorities can expect in terms of advice. Any
conditions would need to be immune from the proposed deemed discharge reforms
set out in the recent technical consultation on planning.
Also the Pitt Review stresses how important SuDS are in combating flooding. At the
moment the NPPF requires a balancing of issues when determining a planning
application and without very robust government guidance inadequate SuDS could
be accepted as a necessary trade off to achieve a scheme that would not otherwise
be delivered. The cost of SuDS in land take, construction cost and on-going
maintenance will bring viability issues.
The proposal lead to delivery of SuDS to larger sites (if adopted by a public body,
such as a water authority) but we would highlight the implication for flood
management of omitting what would prove to be a large number of smaller
developments.
As previously stated there is the question of inspection and enforcement. At the
moment Local Authority planning officers are neither engineers, nor one of the
many bodies already identified as having responsibility for drainage. So this
proposal, while superficially attractive, appears unworkable in practice. Further
consideration is also needed as to the role of the LLFA and the body that will
assume responsibility for adoption/ maintenance to avoid overlaps/
misunderstandings.
The inclusion of national standards for SuDs technical construction in the National
Planning Policy Guidance is not considered the right approach. An alternative
approach is needed. Consideration could be given to building regulations, with
appropriate consultation.
What is needed is a stable, fully funded and technically competent entity to deliver
the on-going maintenance and management requirements of the installation over
the lifetime of the development. This could be at least for a period of 50 years.
Without this, maintenance could become very fragmented with a variety of
authorities and management companies operating in one area.
District Councils are not suited to this role.
Q5. How should the Local Planning Authority obtain expert advice on
sustainable drainage systems and their maintenance? What are the
costs/benefits of different approaches?
Q5 Summary
One body, rather than a range, needs to be identified to assume a lead role. It
would give clarity if this body assumed duties in relation to advice, technical
approvals and enforcing maintenance.
It is evident that considerable further thought is needed to how the regime will
operate.
Q5 Detailed comment
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There is a need for specialist technical advice, as local planning authorities do not
have the expertise needed to consider the detail of the SuDS schemes submitted as
part of a planning application.
The consultation identifies 5 different bodies that potentially have to be consulted.
We consider that there needs to be one, technically proficient, body given the
effective power and responsibility with a duty to provide expert advice to local
planning authorities on SuDS.
In terms of options to deliver expertise we consider that there is benefit in the body
that assumes maintenance/ enforcement powers being the same body that assumes
the role to provide advisory/ expertise at the approval stage. This happens with
highways.
It may be that Water and Sewerage companies or LLFAs are preferred for assuming
adoption and long-term maintenance role.
We note that LLFAs have expertise, relevant responsibilities and have already
received funds in relation to SuDS. Building control services could develop the
necessary expertise to assess SuDS applications – funded through locally
determined fee structures.
Whichever body is decided upon it should be properly funded and become a
statutory consultee, if schemes are to be approved in conjunction with the planning
process.
Although there is mention of the government undertaking a new burdens
assessment it is not clear whether the applicant will have to pay an additional fee
for funding the assessment of a SuDS scheme or whether the funding will come
from elsewhere.
As provision of SuDS is to be a ‘mainstream’ part of development it is appropriate
that the costs should form part of the development cost.
If a ‘conditions attached to planning permissions’ approach is followed then:
-
-
In the first instance developers must be required (by guidance) to submit
technically robust and sustainable SuDS solutions, based on sound and clear
national guidance and standards.
The guidance to developers should make clear that such a scheme should be
supported by investigatory work and sufficient data with regards a robust
design and maintenance regime.
Pre-application advice should be sought an early stage by developers to
ensure the relevant information is submitted.
The assessment of this work will require the LPA to have access to expert
advice – which they generally do not have. Consequently additional
resources will need to be identified.
The appointed body with responsibility for the technical overview and
subsequent adoption/ enforcement of maintenance (not the District Council)
will need to be able to discharge the requirements of any conditions,
through the local planning authority.
We suggest model conditions are used (adapted when necessary) together
with clear guidance on consultation arrangements and what local planning
authorities can expect in terms of advice.
Any conditions should be immune from the proposed deemed discharge
reforms set out in the recent technical consultation on planning.
The aim must be to increase consistency, build knowledge and relationships with
developers to ensure seamless development.
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It is evident that considerable further thought is needed to how the regime will
operate.
Q6. What are the impacts of different approaches for Local Planning
Authorities to secure expert advice within the timescales set for determining
planning applications?
See answer to Q5
-
Having to consult 4 or 5 different agencies will cause delay and confusion.
One agency with the technical competence and comprehensive responsibility
is required.
Other (emerging) reforms to the planning system would add complexity/ problems
e.g. return of fees at 26 weeks and possible deemed discharge of conditions when
approval has not been given by the LPA.
The consequence of these reforms would be that LPAs become reliant on the
applicant’s agreement to extend periods for determination. Where that agreement
cannot be reached this is likely to lead to the perverse situation of more refusals on
the basis of lack of information and consequent delay. We are aware that external
agencies/ advisors may not always be able to respond in time and design solutions
may require re-notification of the proposals thus causing delays in processing.
If the planning system is to be the vehicle for approving SuDS further thought needs
to be given to the workability of the mechanisms.
Q7. Do you agree that minor size developments be exempt from the proposed
revision to the planning policy and guidance? Do you think thresholds should
be higher?
This is neither a simple YES nor NO.
WE do not agree with the premise of the question – we do not consider that the
proposed revision to planning policy/ guidance is resolved. We also are concerned
about cumulative impacts.
Whilst the proposed threshold appears reasonable, given the gravity of the flooding
problem identified in the Pitt Review, it would seem essential to have standing
requirements for smaller developments - or the thresholds should be lower.
Small developments, if not correctly carried out, could individually and cumulatively
contribute to the flooding problem.
Such minor developments are unlikely to consider flood risk in as much detail, with
technical expertise, as larger sites. There seems to be an assumption that
soakaways will be used regardless of whether infiltration will provide an effective
means of drainage. Smaller sites have little opportunity or resource to provide
alternative sustainable options at discharge of condition stage if infiltration
drainage is not an option. This will demand site-specific solutions and a degree of
flexibility.
This all perhaps points to whether this should be controlled through Building
Regulations, a regime that already involves site inspections.
Q8. What other maintenance options could be viable? Do you have examples of
their use?
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In our view the key will be to have one body responsible for enforcing maintenance
of SuDS. This should not be the local planning authority.
This role could be performed by the LLFA or through Water and Sewerage
companies, whereby the developers and the LLFA/ local company come to separate
agreements outside the planning system.
It is essential that the enforcement role is performed by appropriately qualified and
experienced engineers used to such inspections and maintenance. A robust
nationally applicable solution is therefore essential. Leaving it to individual owners
and trusting that they will do it does not seem a realistic solution.
Planning enforcement is not suited to the long term monitoring of how effectively
flood assets are performing and SuDS systems.
There is a parallel with adoption of highway infrastructure by Local Highway
Authorities. An effective system would have these adopted by the relevant
authority, maintained at public expense, with the cost recovered e.g. through the
surface water drainage element of household water bills.
Whatever solution is identified there must be clear arrangements around funding
the responsibilities.
Q9. What evidence do you have of expected maintenance costs?
We have no detailed evidence of expected maintenance costs.
In terms of costs, depending on the scheme, after adoption, for the first 3-4 years it
may be that no crucial works are required, other than basic preventative
maintenance. As materials and structures age and weather then the costs will
increase. In particular paving and attenuation tanks under parking courts, for
example, can become costly burdens. These costs are difficult to predict and
depend on the development, but should be the subject of a submitted management
plan for the lifetime of the development.
We suggested that DEFRA/ DCLG undertake further investigation in this regard, to
gain a more robust understanding of the lifetime costs.
Maintenance options should be proposed and agreed as part of the technical
assessment of the developer’s proposals.
Q10. Do you expect the approach proposed to avoid increases in maintenance
costs for households and developers? Would additional measures be justified to
meet this aim or improve transparency of costs for households?
SuDS should be seen as an integral part of delivering sustainable development and
it therefore follows for their delivery and maintenance to become an integral part of
development, in the same way as occurs with highway infrastructure.
It would seem logical for the costs of SuDS delivery to fall with the developer and
maintenance with households.
Applying a flexible approach to the arrangements for implementing maintenance
could help minimise costs to householders. However, the cost of implementing a
sustainable drainage scheme (para 3.18) and maintaining it should not be a reason
for not requiring one. The developer should take this into account when calculating
development costs/ end sales values. The reason for implementing SUDs is to
ensure that the flood risk to the site and other land and properties in the catchment
is not increased. In terms of the flood risk to the wider community, all sites should
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implement SUDs schemes. Not to do so will increase the flood risk to existing
properties and this is not equitable.
As maintenance of SuDS is an expense not currently being paid, then whatever
approach is adopted, this will inevitably result in increased maintenance costs.
Would additional measures be justified to meet this aim or improve
transparency of costs for households?
Yes.
Additional comment
The questions do not ask about appropriate design standards for SuDS schemes.
The design, construction and planning process would be simplified if Building
Regulations requirements were of the same design standard as required by the
NPPF. The NPPF requires a 1 in 100 year standard with an appropriate allowance for
climate change - whereas Building Regulations general requirement is that surface
water drainage should be “adequate” and it refers to a 1 in 10 year standard with no
reference to climate change.
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