APPENDIX 1
SUDS—LEGAL PERSPECTIVE
(1) In England and Wales, from the legal
perspective, surface water urban drainage is generally effected
by the following means:
(a) buildings and their curtilages by "drains"
and "sewers"; and
(b) highways by means of "highway drains".
(2) By virtue of section 219(1) of the Water
Industry Act 1991:-
(a) "drain" means a conduit for
the drainage of one building and its curtilage; and
(b) "sewer" means a conduit which
drains more than one such building,
ownership of which are as follows:
(i) "drains" within the curtilage
of a building can only be privately owned;
(ii) "lateral drains" outside
the curtilage of a building can be either privately owned, or
publicly owned by a sewerage undertaker (water company);
(iii) "public sewers" are sewers
vested in the sewerage undertaker either by legislation or by
adoption;
(iv) "private sewers" are all other
sewers which are thus privately owned;
but in which connection it must be noted
that a conduit can only be a sewer if it conveys water or sewage
from a point to a point of discharge with a proper outfall.
(3) Under the Highways Act 1980, a "highway
drain" is a conduit which conveys water from the surface
of a publicly maintained highway, "belongs" to the highway,
and generally serves no other purpose—although this is subject
to various qualifications. Such drains vest in the highway authority,
which is usually the highways agency or the county council. In
this connection, under section 299 of the Act, a highway authority
is entitled to discharge water from its drains to natural and
artificial inland waters.
(4) Under section 115 of the Water Industry
Act 1991, highway authorities and sewerage undertakers may enter
into agreements for the drainage of surface water from highway
drains to public sewers, and vice versa, on such terms as they
may agree or, failing agreement, on such terms as may be determined
by the Secretary of State (DEFRA).
(5) However, unlike Scotland, English legislation
does not accommodate SUDS (sustainable urban drainage systems).
Taking into account that SUDS may involve the use of such arrangements
as filter strips and swales, filter drains and permeable surfaces,
infiltration devices, also basins, ponds and wetlands, it is apparent
that these will not generally fall within the definition of "sewer".
In the circumstances, such works cannot be adopted by and become
the responsibility of sewerage undertakers.
(6) In Scotland, this problem has been addressed
in the Water Environment & Water Services (Scotland) Act 2003.
This Act includes provisions which extend and adapt the laws relating
to sewers to "sustainable urban drainage systems" which
it defines as: " . . . a drainage system which:
(a) facilitates attenuation, settlement or
treatment of surface water from two or more premises (whether
or not together with road water), and
(b) includes one or more of the following:
inlet structures, outlet structures, swales, constructed wetlands,
ponds, filter trenches, attenuation tanks and detention basins
(together with any associated pipes and equipment)".
(7) Clearly some such solution also needs
to be found for England and Wales.
Water UK
February 2008
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