Notices and applications

143.     Paragraph 16 provides the Minister (as defined in paragraph 17 of this Schedule) may make regulations (by statutory instrument) about the serving of notices, and the form and procedure for applications under this Schedule.

“The Minister”

144.     Paragraph 17 defines the “Minister” for the purposes of Schedule 1 as meaning the Secretary of State in England and Welsh Ministers in Wales.

Clause 31: Amendments of other Acts

145.     Clause 31 introduces Schedule 2, Risk Management: Amendments of other Acts. The Schedule provides for various amendments to the Coast Protection Act 1949, the Land Drainage Act 1991, the Water Resources Act 1991, and the Environment Act 1995. These amendments have the effect of introducing flood and coastal erosion risk management provisions into those Acts.

146.     Currently between them those Acts provide the legislative framework for flood defence and coast protection. Part 1 of the Bill establishes a risk management approach to flood and coastal erosion and that Part and the amended Acts taken together allocate responsibility for sources of flood and coastal erosion risk to certain bodies and providing powers to do works in order to manage the risks which go wider than “defence” and “protection”.

147.     The amendments also apply existing provisions in the Acts to the flood and coastal erosion risk management regime. In particular these amendments apply existing consenting and enforcement provisions and also appeal, compensation, rights of entry and compulsory purchase provisions to the new powers. The Schedule also amends the Local Government Act 2000 so as to apply provisions of that Act to the actions of risk management authorities.

Schedule 2: Amendment of other Acts

Coast Protection Act 1949 (CPA)

148.     Paragraphs 1 to 24 concern amendments to the CPA.

149.     Paragraphs 1 to 4 of Schedule insert new provisions after section 2 of the CPA, so as to grant the Environment Agency the same powers that are currently held (and which will continue to be held) by coast protection authorities (which are the district councils of each maritime district). In conjunction with the definition of coast protection work inserted by paragraph 24 (see below) the new provisions also widen the scope of works which can be done under the Act by both the Environment Agency and coast protection authorities to include anything done for the purpose of maintaining or restoring natural processes. However there are additional conditions that apply before the wider power can be used, namely: (i) the Environment Agency or authority must think the work is desirable having regard to the national flood and coastal risk management strategies under clauses 7 and 8; and (ii) the purpose of the work must be to manage a coastal erosion risk.

150.     Paragraphs 5(5) and 5(6) provide for the Environment Agency to approve coast protection works under section 5 of the CPA rather than the Minister. Paragraph 5 also contains consequential amendments needed to ensure that the existing powers which are being extended to the Environment Agency are accompanied by an extension of the notification and objection provisions and protections. It also ensures that the extra powers that coast protection authorities are acquiring are similarly accompanied by these protections.

151.     Paragraphs 6 to 9 make consequential amendments to sections 6, 8, 9 and 10 of the CPA to provide that the Environment Agency (and coast protection authorities in respect of their wider powers) have the existing powers of coast protection authorities to make works schemes.

152.     Paragraphs 10 and 11 make consequential amendments to sections 12 and 13 of the CPA to provide that the Environment Agency (and coast protection authorities in respect of their wider powers) have the existing general powers to maintain and repair works of coast protection authorities, and to allow them the same cost recovery provisions with the same inbuilt protections.

153.     Paragraph 12 makes consequential amendments to section 14 of the CPA to provide that the Environment Agency (and coast protection authorities in respect of their wider powers) have the same existing powers for the compulsory acquisition of land as coast protection authorities, and with the same inbuilt protections (such as the requirement for ministerial consent and dispute, appeal and compensation provisions).

154.     Paragraph 13 makes consequential amendments to section 19 of the CPA to ensure that the Environment Agency (and coast protection authorities in respect of their wider powers) are subject to the existing compensation provisions related to people affected by the exercise of the powers being acquired.

155.     Paragraphs 14 to 23 make further consequential amendments to sections 20, 21, 23, 24, 25, 26, 27, 28, 44 and 45 of the CPA to apply to the Environment Agency (and coast protection authorities in respect of their wider powers) other existing provisions which relate to those powers (such as power of entry provisions).

156.     Paragraph 24 inserts a definition of “coast protection work into section 49 of the CPA. This effectively widens the scope of works which can be done under the Act by both the Environment Agency and coast protection authorities to include anything done for the purpose of maintaining or restoring natural processes.

Land Drainage Act 1991(LDA)

157.     Paragraphs 25 to 39 concern amendments to the LDA.

158.     Paragraph 26 repeals Section 8 of the LDA, which currently allows the Environment Agency to exercise powers vested in internal drainage boards (IDBs) under sections 21 and 23 of that Act concurrently with the IDB and paragraph 27 repeals default powers of the Environment Agency under section 9(1) of the LDA insofar as they relate to flooding.

159.     Paragraph 28 amends section 11 of the LDA which currently makes provision for the Environment Agency and internal drainage boards to enter into arrangements for the purposes of carrying out certain works and in particular for internal drainage boards to do and maintain drainage works on behalf of one another. This amendment provides in addition for internal drainage boards to provide administrative, professional or technical services to one another by agreement. This would allow internal drainage boards to operate as consortia.

160.     Paragraph 29 amends the LDA by adding a new section 14A after section 14. The new subsection 14A(1) gives lead local flood authorities powers to carry out flood and coastal erosion risk management works provided that the authority considers this work to be desirable having regard to the local flood risk management strategy for the area and it is for the purpose of managing a flood risk from surface run-off or groundwater.

161.     The new subsection 14A(1) gives lead local flood authorities powers to carry out flood and coastal erosion risk management works provided that the authority considers this work to be desirable having regard to the local flood risk management strategy for the area and it is for the purpose of managing a flood risk from surface run-off or groundwater.

162.     The new subsections 14A(2) and (3) give internal drainage boards, district councils and lead local flood authorities (where there is no district council) powers to carry out flood and coastal erosion risk management works in respect of ordinary watercourses and the sea in their area, where they consider this work to be desirable having regard to the local flood risk management strategy for the area.

163.     These powers are wider than the existing powers in section 14 of the LDA in that they may be used to: (i) remove works; (ii) maintain, restore, and monitor natural processes; and (iii) reduce or increase the level of water in a place.

164.     These new powers will be subject to the same compensation, compulsory acquisition, entry and appeal provisions as apply to the existing powers in section 14. The new powers are also subject to existing protections provided by the planning regime. This would be the main mechanism through which third parties might appeal against new works which might impact negatively upon them.

165.     Paragraph 30 in repealing section 17 of the LDA removes the direct supervisory capacity that the Environment Agency exercises over local authorities in the carrying out of their drainage works powers. Instead the authorities are required to exercise their powers in accordance with the local flood risk management strategy.

166.     Paragraph 31 amends section 21 of the LDA (which allows the internal drainage board or Environment Agency to take action to enforce obligations to maintain or repair any watercourse, bridge or other drainage work). The Environment Agency will no longer exercise this power in England or Wales. The internal drainage board (within its district) and otherwise the lead local flood authority for the area in question will exercise this power. (The Environment Agency will continue to exercise this power in both England and Wales so far as it relates to Main River under Section 107(2) of the Water Resources Act 1991.)

167.     Paragraphs 32, 33 and 34 make various amendments to sections 23, 25 and 26 of the LDA.

168.      Section 23 of the Land Drainage Act, prior to this amendment, prohibits the construction of certain kinds of obstructions in ordinary watercourses without the prior consent of the drainage board (currently the Environment Agency or internal drainage board (for works within its district)). The structures which are caught by this section are (a) mill-dams, weirs and other similar structures and (b) culverts which are likely to affect the flow of water in the watercourse. This means that only the construction of culverts which can be shown to affect the flow of a water course need consent. This implies that it is possible to construct a culvert which does not affect the flow, and that such a culvert would not require consent. The amendment in paragraph 32(2) therefore requires that any new culvert must have consent.

169.     Subparagraph (3) of paragraph 32 amends section 23 of the 1991 Act to remove the Environment Agency as the consenting authority for watercourses outside of an internal drainage district, and replace it with lead local flood authorities. Internal drainage boards will remain the consent authority for watercourses within an internal drainage district.

170.     Subparagraph (3) of paragraph 32 also amends section 23 to require lead local flood authorities and internal drainage boards to consult with the Environment Agency when they are consenting work that they are themselves proposing. This is to minimise the potential for conflict of interest. Drainage boards must also have regard to any guidance provided by the Environment Agency on consenting.

171.     Subparagraph (4) of paragraph 32 amends section 23 to change the procedure by which fees may be determined. Instead of fees being changed by Ministerial order, they will be changed in accordance with a charging scheme that is prescribed by order. Subparagraph (6) amends the definition of “drainage board” that is used for sections 23 and 24 so that the Environment Agency’s role as a drainage board for watercourses outside of an internal drainage district is taken over by lead local flood authorities. Subparagraph (5) applies this amended definition of “drainage board” to sections 24 and 25. Subparagraph (7) applies the definition of “lead local flood authority” in the Bill to the use of the term in LDA.

172.     Paragraph 33 amends section 25 of the LDA (Powers to require works for maintaining flow of watercourse) to give the powers of the Environment Agency to lead local flood authorities. Internal drainage boards retain their powers. Section 26, which deals with competing jurisdictions, is repealed by paragraph 34.

173.     Paragraphs 35 and 36 amend sections 33 and 34 of the LDA which currently provide for the Environment Agency and drainage boards to commute (with Ministerial consent) land drainage obligations not related to Main Rivers. The amendment is to remove the Environment Agency’s power to commute obligations and provide that: (i) where the obligations relate to an area which forms part of an internal drainage district then the drainage board for the district will have the power; (ii) for any other area, a lead local flood authority will have the power. Paragraph 37 omits subsection (4)(c) from section 59 of the LDA leaving that section to apply in relation to grants for drainage works.

174.     Paragraph 38 amends section 66 of the LDA to give byelaw making powers to the relevant authorities which are empowered to carry out works under section 14 of the LDA as result of the amendments made by this Bill, and extends the purposes for which byelaws can be made. The purposes for which byelaws can now be made are in addition to (i) securing the efficient working of a drainage system; and (ii) regulating the effect on the environment of a drainage system, to (a) to secure the effectiveness of flood risk management works, with the meaning of section 14A of the LDA as inserted by the Bill; and (b) to secure the effectiveness of works done under section 38 or 39 of the Bill.

175.     Paragraph 39 introduces a definition of “culvert”, defining it as a covered channel or pipe designed to prevent the obstruction of a watercourse or drainage path by an artificial construction. There is no definition in current legislation.

Water Resources Act 1991 (WRA)

176.     Paragraphs 40 to 49 concern amendments to the WRA.

177.     Paragraph 41 repeals section 106 of the WRA so that the Environment Agency no longer has to carry out its flood management functions through the Regional Flood Defence Committees. Under clause 23 of this Bill, those Committees will have an advisory function instead.

178.     Paragraph 42 amends section 110 of the WRA to change the procedure by which fees may be determined. Instead of fees being changed by Ministerial order, they will be changed in accordance with a charging scheme that is prescribed by order.

179.     Paragraph 43 amends section 118 of the Water Resources Act, which states how revenue raised by the Environment Agency can be spent, to replace the reference to “flood defence” functions with a reference to the broader concept of “flood and coastal erosion risk management” which this Act introduces. It also replaces references to local flood defence districts and flood defence districts with “flood risk management region” which are the regions that are to be created by the exercise by the EA of its powers under clause 22. It repeals section 118(6) which relates to local flood defence districts which will no longer exist. Paragraph 44 repeals section 133 of the WRA in consequence of clause 17.

180.     Paragraphs 45 and 46 amend sections 159 and 160 of the WRA, and allow existing pipe laying powers to be used for flood risk management purposes.

181.     Paragraph 47 adds new provisions to the beginning of section 165 of the WRA. The new provisions allow the Environment Agency to carry out flood and coastal erosion risk management works provided that: (a) the Agency thinks that the work is desirable having regard to the national flood and coastal erosion risk management strategy (under clauses 7 and 8 of the Bill); and (b) that the purpose of the works is to manage a flood risk from the sea, or a main river (although for certain works only the first condition need be satisfied). “Main river” includes a reference to a lake, pond or other area of water which flows into a main river.

182.     Flood and coastal erosion risk management works include anything done to: (a) maintain existing works, including cleansing, repairing or otherwise maintaining the efficiency of any existing watercourse or drainage work, (b) operate existing works, (c) improve existing works, including anything done to deepen, widen, straighten or otherwise improve any existing watercourse or remove or alter mill dams, weirs or other obstructions to watercourses, or to raise, widen or otherwise improve any drainage work; (d) construct new works, including anything done to make any new watercourse or drainage work or erect machinery; (e) maintain or restore natural processes; (f) monitor, investigate or survey a location or a natural process; (g) reduce or increase the level of water in a place; (h) alter or remove any works.

183.     These new powers are subject to the same compensation, compulsory acquisition, entry and appeal provisions as apply to the existing powers in section 165. It should be noted that the new powers are also subject to existing protections provided by the planning regime. This would be the main mechanism through which third parties might appeal against new works which might impact negatively upon them.

184.     The new powers are wider than the existing powers in section 165 in the same way that the powers inserted by paragraph 26 into the LDA are wider, in that they may be used to: (i) remove works; (ii) facilitate the cessation of use for works (e.g. remove bits which may break off if the works are abandoned); (iii) maintain, restore, and monitor natural processes; (iv) reduce or increase the level of water in a place. However their use is restricted in that the conditions (a) and (b) mentioned above do not apply to the existing power.

185.     Subparagraphs (3) to (6) make consequential amendments to section 165 of the Water Resources Act.

186.     Paragraphs 48 and 50 (see under Water Industry Act 1991 below) respectively amend section 204(2) of the WRA and 206(3) of the Water Industry Act 1991. These sections create a number of exceptions to the general prohibition on disclosure of information gained by companies or individuals under those Acts. These amendments to those sections add the provision of information in response to a request under clause 14 to those exceptions from that prohibition.

187.     Paragraph 49 amends Schedule 25 paragraph 5(1) of the WRA to extend the powers of the Environment Agency to make byelaws. Currently byelaws may be made for the purposes of securing the efficient working of a drainage system and regulating the effect on the environment of a drainage system. This amendment provides in addition for byelaws also to be made for the purposes of securing the effectiveness of flood risk management works, within the meaning of section 165 of the WRA, as amended by the Bill and securing the effectiveness of works done under section 39 or 40 of the Bill.

Water Industry Act 1991

188.     See under Water Resources Act 1991 in relation to paragraph 48 of Schedule 2 to the Bill.

Environment Act 1995

189.     Paragraphs 51 to 53 concern amendments to the Environment Act 1995.

190.     Paragraph 52 amends section (6) of the Environment Act 1995 to provide the Environment Agency with general supervision over all flood and coastal erosion risk management matters.

191.     Paragraph 53 repeals sections 14 to 19 and schedules 4 and 5, in the light of provisions for Regional Flood and Coastal Committees under clauses 22 to 26 of this Bill.

Local Government Act 2000

192.     Paragraph 54, by adding a new section 21F to the Local Government Act 2000, extends the powers of overview and scrutiny committees in England under the Local Government Act 2000. It provides powers to lead local flood authorities to allow for the scrutiny of risk management authorities as to the exercise of their flood and coastal erosion risk management functions.

193.     It gives risk management authorities a duty to comply with requests for information or responses to reports from the overview and scrutiny committees.

194.     It provides for the Secretary of State to make regulations about the duties set out above. This can include provisions about procedures, notices, exemptions, requirements to provide information orally, the nature of information and publication.

195.     Risk management authorities must have regard to the reports and recommendations of the overview and scrutiny committees.

196.     This provision also provides for the Secretary of State’s existing powers to make regulations in respect of joint overview and scrutiny committees to be used in respect of scrutiny under this new provision.

Part 2: Miscellaneous

Clause 32: Sustainable drainage

197.     Clause 32 introduces Schedule 3: Sustainable Drainage.

Schedule 3: Sustainable drainage

198.     This Schedule to the Bill introduces standards for the design, construction, maintenance and operation of new rainwater drainage systems, and an ‘approving body’. The body, which will generally be a unitary, county or county borough local authority, will be required to approve most types of rain-water drainage systems before work can start. Where the system affects the drainage of more than one property, the approving body will be required to adopt and maintain the system upon satisfactory completion. The Schedule also amends section 106 of the Water Industry Act 1991 to make the right to connect surface water run-off to public sewers conditional on the approval of the drainage system by the approving body.

“Drainage system”

199.     This paragraph defines “drainage system” for Schedule 3 as a structure designed to receive rainwater, other than a public sewer or a natural watercourse.

“Sustainable drainage”

200.     This paragraph defines the term “sustainable drainage” for the purposes of this Schedule.

Cross-border systems

201.     This paragraph states that in situations where part of a drainage system is in Wales and part in England than the parts will be treated as separate systems for the purposes of this Schedule. However, decisions on one part should be taken with regard for the other part.

“The Minister”

202.     This paragraph defines the Minister as the Welsh Ministers, for drainage systems in Wales, and the Secretary of State, for drainage systems in England.

National Standards

203.     This paragraph imposes a duty on the relevant Minister to publish national standards about how drainage systems should be designed, constructed, maintained and operated for the purpose of implementing sustainable drainage. These national standards are referred to in other paragraphs in this Schedule.

204.     Subparagraph (3) provides that the standards may permit or require approving bodies to form judgments on drainage systems using specific criteria. Approving bodies must also take account of any guidance which is issued by the Minister.

205.     The Ministers must consult before publishing the standards.

Approving body

206.     This paragraph sets out who is to act as “Approving Body” for drainage systems for an area. In the first instance, the Approving Body is to be the unitary or county council for the area.

207.     Subparagraphs (3) to (5) provide that the relevant Minister may appoint another body to be the Approving Body in a specified area instead of the council. This must be done by order which would be subject to the negative resolution procedure.

208.     When appointing a different body to act as the Approving Body for a particular area, the order may also confer additional powers on that body that would assist them in acting as the Approving Body. It may only confer powers which are already available to a unitary or county council. For example, this might be used to give local authority powers of entry to the new Approving Body for maintenance purposes so as to put them in the same position as the unitary or county council would have been. Where additional powers are conferred on the Approving Body, the order will be subject to the affirmative resolution procedure either in Parliament or the National Assembly for Wales.

Requirement for approval

209.     This paragraph provides that approval by the Approving Body is required before commencement of any construction work which has drainage implications. This paragraph defines construction work as anything done by way of or in connection with or in preparation for the creation of a building, including any structure that covers land (such as a patio). Construction work has drainage implications if the building or structure will affect the ability of the land to absorb rainwater. Approval for construction work is not required if that construction work is a nationally significant infrastructure project, as defined in section 31 of the Planning Act 2008. These projects will require approval from the Infrastructure Planning Commission.

210.     Subparagraph (4) allows Ministers to define what is to be treated as construction work, or as having drainage implications, and therefore what requires approval. It also enables the Minister to set exemptions to the requirement for approval. This power is exercisable by order and will be subject to the negative resolution procedure.

Applications for approval

211.     This paragraph provides for two approaches for applying for approval from the Approving Body. Where planning permission under the Town and Country Planning Act is not required, then the application is to be made as a “free-standing” application, directly to the Approving Body. Where planning permission is required then the applicant can choose to make a combined application with planning permission, by lodging both applications to the planning authority at the same time.

Free-standing application for approval

212.     This paragraph provides the procedure for free-standing applications. The Approving Body may require applications to be made in a particular form, and applications must contain any information that the Approving Body requires in order to determine the application. If a fee is payable then it must also be accompanied by that fee.

Combined applications

213.     This paragraph provides the procedure where an applicant chooses to have their application for approval combined with planning permission. In a case like this, the applicant must give the planning application and the application for approval required by this Schedule to the planning authority. The application for approval of the drainage will need to contain the same information, be in the same form, and be accompanied by a fee in the same way as if a free standing application were made.

214.     The planning authority will be obliged to consult with the Approving Body (if it is a different body than the planning authority), so that the Approving Body can determine the drainage application. The planning authority must inform the Approving Body of its final decision on the planning application. The planning authority must also inform the applicant of the final decision of the approving body on the drainage system at the same time as it informs the applicant of its final decision on planning permission.

Determination of application for approval

215.     This paragraph provides the process for determining an application for approval. An Approving Body must grant an application if it is satisfied that the drainage system complies with the national standards for sustainable drainage. If it is not satisfied then it must refuse the application. Approval may be granted subject to conditions on the construction, or modifications to the original proposals. The Approving Body may grant approval on the condition that the applicant provides a non-performance bond. This is explained further below. In such a case, the approval only takes effect once the applicant has provided the non-performance bond. Grant of approval may relate to inspection of the drainage system or there may be a condition which requires payment of fees payable for the processing of the application for approval of a drainage system.

216.     Before determining an application the Approving Body must consult a number of relevant bodies. If a connection to the sewer is proposed, it must consult the relevant sewerage undertaker; if the drainage system will discharge to a watercourse, it must consult the Environment Agency; if the drainage system is likely to affect a road, it must consult the relevant highway authority; and finally if the drainage system is to discharge under, or directly or indirectly into a waterway managed by British Waterways, it must consult British Waterways The Approving Body must notify the applicant and any relevant consultees as of their decision as soon as they reasonably can.

Non-performance bonds

217.     This paragraph explains what a non-performance bond is. When approving an application, the Approving Body may require the applicant to deposit a non-performance bond as a condition of granting approval. The value of the bond will be decided by the Approving Body, but it cannot exceed the best estimate of the most that it will cost to build the drainage system in line with the approved proposals.

218.      If the Approving Body certifies that the drainage system has not been constructed in accordance with approved proposals or is unlikely to be completed, it may give a certificate leading to forfeit of the bond. Before doing this it must consult the applicant about whether it should do this. Once it has decided to forfeit the bond, it must then use the money to complete the drainage work in compliance with national standards. If any money is left over, the Approving Body must pay the remaining amount back to the applicant.

Fees

219.     The Minister is able to make regulations to set fees for applications for drainage approval. The provisions allow for the regulations to set fees dependent on criteria specified in the regulations, for instance the extent or nature of the construction works. The regulations can also set fees taking into account the costs of work done by the authority to process the approval. In making the regulations, the Minister must have regard to the desirability that the income from fees does not significantly exceed the costs incurred in processing an approval.

Enforcement

220.     This paragraph requires the Minister to make an order to make provision about enforcement of the requirement for approval under this Schedule. The order can be used to make provision for taking enforcement action in cases where construction starts without approval of its drainage system, where any of the conditions that the approval was based on are breached or where construction of the drainage system does not follow the approved proposals.

221.     The order can include provisions about notices including enforcement notices, stop notices, temporary notices and breach of condition notices; allowing for applications to be made to a court or tribunal; confer powers including discretionary powers on the Minister or other authorities, powers of entry, powers of inspection and powers to undertake and charge for remedial work; and provisions about the consequences of failure to comply with the order itself or notices produced under it. If the Minister wishes, the order can apply or make provisions similar to provision in the Town and Country Planning Act 1990.

222.     The order under this paragraph will be subject to the affirmative resolution procedure.

Sewers and roads

223.     This paragraph amends section 106A of the Water Industry Act 1991. The effect of this amendment is to limit the existing right to connect to the public sewer in certain cases. Where the connection to the sewer is part of a drainage system which requires approval under this Schedule, connection will only be allowed where the application for approval of the drainage plans proposes a connection to the public sewer, and that application is approved by the Approving Body.

224.      At present, under section 106(4) of the Water Industry Act, a sewerage company may refuse to allow a connection to the public sewer if it thinks that the connection would be prejudicial to its sewerage system. This paragraph provides that the sewerage company will no longer be able to refuse a connection on these grounds in a case where the sewer connection is part of the approved drainage system. It also provides that a connection to the sewer may not be refused on the grounds that drainage system drains more than one property or sewer, or absorbs water from other land as well as from premises and sewers.

225.     Subparagraph 3 inserts a new subsection into section 115 of the Water Industry Act to require a sewerage undertaker to accept any drainage from a highway drain which is in accordance a drainage system which is approved under this Schedule.

Duty to adopt

226.     This paragraph imposes a duty on the approving body to adopt any new drainage system which meets these conditions.

a.     Condition 1 is satisfied where the drainage system has been constructed in line with an approved drainage plan which conforms to the national standards.

b.     Condition 2 is satisfied where the approving body is satisfied that the drainage system has been built and functions in accordance with the approved plan (and complies with any conditions or approval) or alternatively where the approving body can or has issued a certificate that the non-performance bond will be used to complete the drainage system, for the reasons described under non-performance bonds. The Approving Body must also have regard to any guidance issued by the Minister on this condition

c.     Condition 4 is satisfied if the system is a “sustainable drainage system”, as defined by regulations made by the Minister.

227.     Where part of a drainage system is exempt from adoption, this duty to adopt continues to apply to the rest of the system as if it were a whole drainage system in its own right.

Exception 1: single property systems

228.     This paragraph provides that the Approving Body is not under a duty to adopt any drainage system, or part of a drainage system, which only provide drainage for single properties. The Minister can make regulations to define when a drainage system or part of a drainage system provides drainage for a single property.

Exception 2: Roads

229.     This paragraph provides that the Approving Body is not under a duty to adopt drainage systems, or parts of a drainage system which are also a publicly maintained road.

230.     Where part of an adopted drainage system is a publicly maintained road, the road maintaining authority (the highways authority), must exercise its functions in accordance with the approved plan for the drainage system (including any conditions of approval) and in accordance with national standards. The functions affected would include the highways authority’s functions of maintaining a road, and arranging for it to be properly drained under the Highways Act 1980.

231.      If a road is part of a drainage system (for example, by being constructed of permeable paving) but is privately maintained, then that part of the drainage system will need to be adopted by the Approving Body in the same way as the rest of the system. If a private road which is part of a drainage system subsequently becomes adopted by the highway authority (and therefore becomes a publicly maintained road) the Approving Body’s adoption of that part of the drainage system will lapse.

Additional exceptions

232.     This paragraph allows the Minister to provide additional exceptions to the duty to adopt a drainage system. This power must be exercised by order and would be subject to the negative resolution procedure.

Power to Adopt

233.     This paragraph enables the approving body to voluntarily adopt a sustainable drainage system, where it is not under a duty to do so. The relevant Minister may make regulations defining the types of sustainable drainage systems which may be voluntarily adopted.

Effect of adoption

234.     This paragraph provides that where an approving body adopts a drainage system, it must maintain the drainage system in line with the National Standards.

Process of adoption in pursuance of duty to adopt

235.     This paragraph details the process of adoption where the Approving Body is under a duty to adopt the drainage system. The person who applied for approval, referred to as “the developer” can formally request the Approving Body to adopt a drainage system (for example when it considers that it has completed the system in line with the approved plans). But the Approving Body does not need to wait for a formal request to be made if it considers on its own initiative that it is under a duty to adopt the drainage system.

236.     The Approving Body may prescribe the form required for the developer to make formal requests for adoption. Where an Approving Body receives a formal request for adoption, it must determine the request within any time limit imposed by the Minister by order. The Approving Body must notify the developer of its decision, and of its right to appeal as soon as is reasonably practicable.

237.     Where an approving body give notice of adoption it must ensure that the notice specifies the extent of the drainage system being adopted. The notice must be copied to the relevant sewerage undertaker. The notice (together with details of the arrangements for access and maintenance in the approved plans) must be copied to anyone appears to owns land on which the drainage system is located, and anyone whose property appears to be drained by the system. The notice must also be copied to the developer and any other statutory consultees to the approval process.

238.     The Approving Body must also include the drainage system in the local authority register which is established under Part 1 of the Bill, and designate any parts of the drainage systems which are eligible for designation and not owned by the approving body.

239.     Finally it must also release any unused non-performance bond which was paid as a condition of approval back to the developer.

240.     The Minister can make regulations about timing and manner of compliance with these obligations. These regulations are subject to the negative resolution procedure.