The UK Environmental Law Association aims to make the law work for a better
environment and to improve understanding and awareness of environmental
law. UKELA’s members are involved in the practice, study or formulation of
Environmental Law in the UK and the European Union. It attracts both lawyers
and non-lawyers and has a broad membership from the private and public
sectors.
UKELA prepares advice to government with the help of its specialist working
parties, covering a range of environmental law topics. This response has been
prepared with the help of the Water Working Party.
UKELA’s current priorities include:

Informing and actively influencing the broad law and policy debate on
climate change including the measures to reduce greenhouse gas
emissions and manage their impacts at the international, EU and
domestic level

Helping deliver more effective and efficient environmental regulation
including enforcement at the EU and UK level, not lower standards nor
less regulation unless the same or better outcomes will be achieved
UKELA works on a UK basis and seeks to ensure that best legislation and
practice are achieved across the devolved jurisdictions.
The consultation `Improving surface water drainage’ aspires to address
fragmentation of responsibilities for management of surface water drainage. It
must be noted that it does so in the context not of a generally satisfactory
situation which requires effective management, but in a position which could
without exaggeration be regarded as critical: the related noun is `crisis’. Because
it is an issue which affects not merely areas around the coast but much of the
country in land as well, legislative and structural changes and major works such
as followed the floods of 1947 are necessary. Those events prompted the Coast
Protection Act and the River Board Act of 1949. The proposition that minor
administrative changes coupled with existing structures and legal powers can be
expected to achieve comparable changes to the response to 1947 appears
unjustifiable.
Question 1
It is doubtful that SWMPs as envisaged are the right solution to co-ordinate
surface water drainage. The right solution objectively requires that one authority
has the responsibility for the gathering of information, the preparation of the plans
and directing the actions of other authorities whose functions are relevant.
Necessarily that authority must be a public authority and the only available
candidate (in the absence of the integrated water authorities created in 1973 and
abolished in 1989) is the Environment Agency.
Q2 To the extent that SWMPs formed part of the mechanism to deliver outcomes
required by European directives, it would be a breach of obligations on the UK
state that they were voluntary, and therefore neither robust nor legally effective,
nor capable of being relied upon in the UK courts by persons intended to benefit.
The reference to PPS25 is correctly qualified; expectations of success based on
the potential for soft law which can be overridden by a planning authority with
relative impunity must be very limited.
Q3 It would not be possible to ensure (i.e. guarantee) that drainage stakeholders
engage in a voluntary process. It would still be possible for stakeholders to take
positions on the basis of which SUDs schemes could not in practice be
implemented.
Q4 The only way to ensure that SWMPs were adopted in critical drainage areas
would be to place the obligation to produce them on one party, and to impose a
timescale within which adoption had to take place.
Q5 Local authority areas are inappropriate to deal with catchment based issues
effectively, and for SWMPs to be adopted by a wide range of authorities would
be a recipe for inconsistency and differential success or lack of it.
Q6 Local Authorities do not have sufficient influence on statutory undertakers or
on the Environment Agency to bring about effective plan-making at their
instance. Further their data capture and handling is inconsistent. Given that two
of the participants have a regional role (the Agency and drainage undertakers) it
would be sensible that the regional or supra-regional bodies should have the
central role, and involve the more local stakeholders.
Q7 There are no successful precedents for such joint plan-making exercises.
AONB co-ordinating bodies have been a relatively unsuccessful model.
Q8 Given that water plcs are dependant upon funding decisions made by
OFWAT, there appears little prospect that they could be given powers to initiate
capital programmes without their qualifying for funding by very strict and limited
criteria. Given the role of OFWAT in prompting restrictive interpretation of or
delayed implantation of European quality obligations, the actions of water plcs in
this respect are required to be determined by external direction.
Q9 Existing Agency legal powers are clearly insufficient to ensure resolution of
the serious problems arising. Effective plan-making action on the part of the
Agency implies four powers of direction:(1) to sewerage undertakers in respect of the exercise of their functions
(2) to local planning authorities in relation to development decisions relevant
to surface water drainage.
(3) To local authorities and internal drainage boards in the exercise of land
drainage functions, including directions to adopt SUDs systems in
consideration of capitalised maintenance contributions.
(4) To make directions to local authorities in relation to the obligation to
ensure that SUDs systems are retrofitted in areas where such action is
necessary to prevent nuisance or prejudice to health from flooding. (In this
area there is scope for the interpretation of statutory nuisance in the
context of loss of insurance cover which may not require legislation:
alternatively legislation which provides analogous obligations on the part
of public health authorities would provide teeth.)
Q10 Bearing in mind the limited scope of IDB’s to influence, for example,
development decisions, it is doubtful that they can have a leading role.
Q11 Water plcs can exercise a valuable role by providing detailed information on
their systems, and gathering much more real-time information on system
pressures. The difficulty is in relation to OFWAT approving funding for such
information gathering: the difficulties in obtaining information on CSO’s
discharging into sensitive areas is a case in point – monitoring was limited to
newly improved CSO’s, and not in real time.
Q12 We do not comment on the cost/benefit analysis in Annex B.
Q13 Spatial planning cannot resolve existing surface water constraints – other
powers are required. The scope to address existing problems through new
development is limited as a matter of law.
Q14 It is striking that the options do not include retrofitting SUDs systems in
relation to existing development. There appears to be an acceptance that
existing developments (and indeed existing highways) are incapable of
improvement, which is not the case. There was a scheme considered to treat
flows from the A38 some years ago for water quality purposes, but this did not
proceed.
Q15 Undoubtedly a robust SWMP, backed by legal powers, is likely to be a
suitable vehicle for delivering a European directive obligation.
Q16 Given powers of direction, much of the necessary survey information to
input into SWMP models can be obtained from developers.
Q17 There must be effective scrutiny of the process, specifically by the
Environment Agency: there must be a duty on other participants to provide the
necessary monitoring data on a regular basis. Given the desirability of integrating
all the management information from SWMPs into a national database, the
prospect that this could be effectively achieved from a variety of lead agencies
using different methodologies and software is minimal.
Q18 Only by the existence of powers of direction can drainage “partnerships” be
sustained.
Q19 We do not comment on the cost/benefit analysis.
Q20 There appears to be no reason not to keep a responsibility for SUDs with
land ownership: indeed Part III of the EPA 1990 preserves such functions, and
requirements as to use are human rights compliant. Compulsory vesting of
structures could have other implications.
Q21 The failure of SUDs mechanisms is required to be sanctioned by statutory
nuisance or other analogous mechanisms cf section 23 and 25 Land Drainage
Act 1991.
Q23 Local authorities are probably as well equipped as most to take
responsibility for adoption and management of SUDs. Management companies
and other local institutions cannot be guaranteed to have the relevant degree of
expertise.
Q24 It would generally be appropriate for districts to maintain SUDs. The
relevance to county authorities would be in relation to highway drainage.
Q26 It would not be appropriate to rely upon skills and capacity to manage SUDs
infrastructure being acquired within a fixed period, nor to assume that those skills
and capacity are not already in place. The discretion of the authority with
overarching responsibility and proven competence to delegate or not to delegate
to local authorities can be exercised according to the demonstrated competences
of the local authorities concerned, thereby achieving maximum utilisation of local
authority expertise from the earliest available date.
Q27 Given sewerage undertakers whole undertaking is centred upon traditional
piped structures, and their predilection to prefer those structures to SUDs, and
the extensive nature of SUDs structures themselves, it appears that authorities
which have and exercise the full range of property management expertise should
monitor and maintain these works, and regularly report to the overarching
authority on their condition and effectiveness. There will further always be a
division of responsibility for SUDs and the surrounding land in the case of
sewerage undertakers: if however local authorities have the responsibility, in
many cases they will also take over the land in which the SUDs are and manage
both in an integrated way.
Q28 Because of undertakers focus on piped structures, the learning curve for
them would be expected to be longer in any event.
Q29 There may be scope for specialist companies to act as contractors to local
authorities which lack in-house expertise, or to work with a group of local
authorities. The organisation of the work of local authorities is perhaps outwith
the consultation, but the proliferation of bodies with these responsibilities would
to some extent exacerbate the problem.
Q30 If the outcome is not the powers of direction recommended in this response,
then logically the establishment of a joint committee of local authorities with
representation of other parties on the model of sea fisheries committees would
be would be the least worst option, absent any legislative basis of sociétés
mixtes on the French model.
Q31 It would highly undesirable to have different models of implementation, or
indeed different methodologies or standards applied by reference to the districts
concerned.
Q32 The prospect that the structure of land drainage authorities could be very
different from area to area appears highly undesirable.
Q33 As indicated previously, responsibility should lie with the local authority, but
the means by which the services are delivered should be capable of flexible
response.
Q34 The proposals in the consultation would not be considered capable of
ensuring SUDs by implemented in development schemes, let alone
redevelopment schemes or achieving retrofit of SUDs in existing developments.
They would therefore be unlikely to achieve efficacy.
Q35 and Q36 The key in our view would be the establishment of powers of
direction: the position is more serious than was the case when highway
authorities had powers of direction in relation to access to highways.
Q37 It is important that responsibility for the preparation of SWMPs is allocated
to the authority with present capability, consistent practice and overall standards
of working. The adoption and maintenance of SUDs needs to be allocated
according to the availability of local knowledge expertise and resources. The two
do not need to be in the same body any more than operational responsibilities for
structures need to be in a local planning authority, or for all works required by
notice by a highway authority a local public health authority or drainage board be
executed by those authorities.
Q38 The proposition that intensity of a development should override
requirements of SUDs is unsatisfactory. It would require imperative reasons of
overriding public interest to justify such action.
Q39 The omission or modification of SUDs drainage where practicable does not
appear justifiable by the nature of the development undertaken.
Q40 The legislative issues that appear most urgent to resolve are those in
relation to powers of direction; see response toQ9.
Q41 It is agreed that the automatic power to connect to surface water sewers
should be qualified.
Q42 This option is considered to be realistic. There will be cases where
overflows from SUDs systems will go to sewer, and cases where they should not,
because there are other options available.
Q43 As indicated at Q41 a qualified right is appropriate, but it will probably be
necessary also to qualify the power of requisition of sewers.
Q44 It would be more straightforward to allow the right to connect to remain to
the extent that it is not practicable or not sustainable (in terms of energy
consumption for example) to dispose of the surface water by other means.
Q45 The position in relation to surface water drainage appears to be exactly the
same as with combined sewers.
Q46 We do not comment of the proposed hierarchy of effectiveness.
Q47 Option 2 is preferred, and Option 3 is considered lacking in robustness
without powers of direction.
Q48 No wider evidence is provided.
Q49 The existing provisions with regard to prejudicial to operation are an
extremely blunt instrument, and their application to these circumstances would
be inappropriate.
Q40 Financial incentives in this context are highly unlikely to deliver effective and
decisive action unless the charges imposed were punitive. Incentivisation is more
appropriate where the costs of disposing of surface water otherwise are even
across the country, which is far from the case.