Flood and Water Management Bill

House of Commons

Session 2009 - 10
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Other Bills before Parliament

Flood and Water Management Bill

Flood and Water Management Bill
Schedule 3 — Sustainable Drainage
54

      (4)
Where an approving body gives a certificate under sub-paragraph (2)—
(a)
it must notify the developer,
(b)
the approving body may undertake any work necessary to ensure
that the drainage system is completed in such a manner as to make it
likely to operate in compliance with national standards for
5
sustainable drainage, and
(c)
the sums received under the bond may be applied to the expenses of
that work, and any excess is to be paid to the developer.
      (5)
In requiring a non-performance bond an approving body must specify a
value which does not exceed the best estimate of the maximum likely cost of
10
work required to ensure that the drainage system accords with the approved
proposals.
      (6)
The Minister may issue guidance about what amounts may be required by
way of non-performance bonds; and approving bodies must have regard to
the guidance.
15
Fees
13    (1)
The Minister shall by regulations provide for fees for applications for
approval.
      (2)
The regulations may—
(a)
provide for fees to be determined by reference to specified criteria
20
(including the extent or nature of construction works);
(b)
provide for fees to be paid by reference to work done by the
approving authority in connection with approval.
      (3)
In making regulations the Minister must have regard to the desirability of
ensuring that fee income does not significantly exceed the costs (direct and
25
indirect) that approving bodies incur in connection with approval.
Enforcement
14    (1)
The Minister shall by order provide for the enforcement of the requirement
for approval in paragraph 7(1).
      (2)
An order may, in particular, make provision about cases where—
30
(a)
construction is commenced without a drainage system having been
approved,
(b)
conditions of approval are breached, or
(c)
construction does not conform to the approved proposals.
      (3)
An order may, in particular, provide for—
35
(a)
notices (including enforcement notices, stop notices, temporary
notice and breach of condition notices),
(b)
applications to a court or tribunal,
(c)
powers (including (i) discretionary powers conferred on the Minister
or specified authorities, (ii) powers of entry, (iii) powers of
40
inspection, and (iv) powers to undertake and charge for remedial
work),
(d)
offences of failure to comply with the regulations or notices under
them,
(e)
financial penalties,
45

Flood and Water Management Bill
Schedule 3 — Sustainable Drainage
55

(f)
rights of appeal, and
(g)
compensation.
      (4)
An order may apply (with or without modification) or make provision
similar to a provision of the Town and Country Planning Act 1990.
      (5)
An order—
5
(a)
may not be made by the Secretary of State unless a draft has been laid
before and approved by resolution of each House of Parliament, and
(b)
may not be made by the Welsh Ministers unless a draft has been laid
before and approved by resolution of the National Assembly for
Wales.
10
Guidance
15
The Minister may issue guidance about the process of seeking and obtaining
approval; and approving bodies must have regard to the guidance.
Sewers and roads
16    (1)
After section 106(1A) of the Water Industry Act 1991 (right to connect to
15
public sewers) insert—
“(1B)
The right under subsection (1) is subject to section 106A.”
      (2)
After section 106 insert—
“106A
    Sustainable drainage
(1)
This section applies to a drainage system construction of which
20
required approval under Schedule 3 to the Flood and Water
Management Act 2010 (sustainable drainage).
(2)
A person may exercise the right under section 106(1) in respect of
surface water only if—
(a)
the construction of the drainage system was approved under
25
that Schedule, and
(b)
the proposals for approval included a proposal for the
communication with the public sewer.
(3)
Where subsection (2) is satisfied, the connection may not be
refused—
30
(a)
under section 106(4), or
(b)
on grounds that the drainage system absorbs water from
more than one set of premises or sewer, or from land that is
neither premises nor a sewer.”
      (3)
After section 115(5) of the Water Industry Act 1991 (highway drains and
35
sewers) insert—
“(5A)
A sewerage undertaker must accept any use by a highway authority
which is in accordance with a drainage system approved under
Schedule 3 to the Flood and Water Management Act 2010.”

Flood and Water Management Bill
Schedule 3 — Sustainable Drainage
56

Duty to adopt
17    (1)
An approving body must adopt a drainage system which satisfies the
following conditions.
      (2)
Condition 1 is that the drainage system was constructed in pursuance of
proposals approved under paragraph 7.
5
      (3)
Condition 2 is that the approving body is satisfied—
(a)
that the drainage system was constructed, and functions, in
accordance with the approved proposals (including any conditions
of approval), or
(b)
that the approving body can issue or has issued a certificate under
10
paragraph 12(2).
      (4)
An approving body must have regard to any guidance issued by the
Minister about the application of Condition 2.
      (5)
Condition 3 is that the drainage system is a sustainable drainage system, as
defined by regulations made by the Minister.
15
      (6)
Where part of a drainage system is exempt from adoption a reference in this
Schedule to the adoption of a drainage system includes a reference to
adoption of part of a drainage system.
Exception 1: single-property systems
18    (1)
The adoption duty does not apply to a drainage system which is designed
20
only to provide drainage for a single property.
      (2)
The adoption duty does not apply to any part of a drainage system which is
designed only to provide drainage for a single property.
      (3)
The Minister may by regulations make provision for determining when a
drainage system, or part of a drainage system, is to be or not to be treated as
25
designed only to provide drainage for a single property.
Exception 2: roads
19    (1)
The adoption duty does not apply to any part of a drainage system which is
a publicly-maintained road.
      (2)
If part of an adopted drainage system becomes a publicly-maintained road,
30
the adoption lapses in respect of that part.
      (3)
Sub-paragraphs (4) and (5) apply where a drainage system is adopted and
part of the system is a publicly-maintained road (and that part is therefore
not adopted).
      (4)
The maintaining authority must exercise its functions in respect of the
35
road—
(a)
in accordance with the approved proposals for the drainage system
(including any conditions of approval), and
(b)
in accordance with national standards for sustainable drainage.
      (5)
The maintaining authority must designate the road under section 63 of the
40
New Roads and Street Works Act 1991 (streets with special engineering
difficulties).

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Schedule 3 — Sustainable Drainage
57

      (6)
“Publicly-maintained road” means a highway to which the duty under
section 41 of the Highways Act 1980 applies (maintenance at public
expense); (and a reference to a road includes a reference to part of a road).
Additional exceptions
20
The Minister may by order provide additional exceptions to the adoption
5
duty.
Power to adopt
21
An approving body may voluntarily adopt all or part of a sustainable
drainage system, as defined by regulations made by the Minister, to which
the duty to adopt does not apply.
10
Effect of adoption
22    (1)
Where an approving body adopts a drainage system it becomes responsible
for maintaining the system.
      (2)
In maintaining the system the adopting body must comply with national
standards for sustainable drainage.
15
Process of adoption in pursuance of duty to adopt
23    (1)
This paragraph describes the procedure for adoption in pursuance of the
duty to adopt.
      (2)
An approving body may adopt a drainage system—
(a)
on its own initiative, or
20
(b)
at the request of the person who applied for approval under
paragraph 7 (“the developer”).
      (3)
A request must be made in the form (if any) prescribed by the approving
body.
      (4)
Where an approving body receives a request it must—
25
(a)
determine it within such period as the Minister may prescribe by
order, and
(b)
notify the developer as soon as is reasonably practicable of the
decision and of any right of appeal.
      (5)
Where an approving body adopts a drainage system on its own initiative it
30
must notify the developer as soon as is reasonably practicable.
      (6)
Where an approving body gives notice under sub-paragraph (4)(b) or (5) it
must—
(a)
ensure that the notice specifies the extent of the drainage system
being adopted,
35
(b)
copy the notice to the sewerage undertaker in whose area the
drainage system is,
(c)
copy the notice to any person who appears to the approving body to
own or occupy land on which the drainage system is (including
details of any arrangements under the approved proposals for access
40
and maintenance),

Flood and Water Management Bill
Schedule 3 — Sustainable Drainage
58

(d)
copy the notice to any other person whom the approving body were
obliged to consult on the application for approval,
(e)
copy the notice to any person who appears to the approving body to
own or occupy land from which water will be drained by the
drainage system,
5
(f)
arrange for the inclusion of the drainage system (including any non-
adopted part) in the relevant register under section 21,
(g)
release any bond provided under paragraph 12,
(h)
arrange for the designation under Schedule 1 of any part of the
drainage system (whether an adopted part or not) which is eligible
10
for designation (and which is not owned by the approving body),
and
(i)
designate under section 63 of the New Roads and Street Works Act
1991 (streets with special engineering difficulties) any adopted part
of the drainage system that is a street within the meaning of section
15
48 of that Act.
      (7)
The Minister may make regulations about the timing and manner of
compliance with sub-paragraph (6).
Process of voluntary adoption
24    (1)
This paragraph applies where an approving body decides to exercise its
20
power to adopt a drainage system to which the duty to adopt does not apply.
      (2)
The approving body must notify—
(a)
the sewerage undertaker in whose area the drainage system is,
(b)
any person who appears to the approving body to own or occupy
land on which the drainage system is (including details of any
25
arrangements under the approved proposals for access and
maintenance), and
(c)
any person who appears to the approving body to own or occupy
land from which water will be drained by the drainage system.
      (3)
The approving body must arrange for—
30
(a)
the inclusion of the drainage system (including any non-adopted
part) in the relevant register under section 21, and
(b)
the designation under Schedule 1 of any part of the drainage system
(whether an adopted part or not) which is eligible for designation
(and which is not owned by the approving body).
35
      (4)
The notification under sub-paragraph (2) must specify the extent of the
drainage system being adopted.
      (5)
The Minister may make regulations about the timing and manner of
compliance with sub-paragraphs (2) and (3).
Appeals
40
25    (1)
The Minister must by regulations provide a right of appeal against—
(a)
decisions under this Schedule about applications for approval
(including decisions about conditions), and
(b)
decisions under this Schedule about the duty to adopt.
      (2)
The regulations must—
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Schedule 3 — Sustainable Drainage
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(a)
confer jurisdiction on the Minister, a court or a tribunal, and
(b)
make provision about procedure.
Building Act 1984
26    (1)
At the end of section 21 of the Building Act 1984 (provision of drainage)
add—
5
“(7)
This section does not apply to works in connection with which
approval is required in accordance with Schedule 3 to the Flood and
Water Management Act 2010 (sustainable drainage).”
      (2)
The power in section 59(1)(c) of the Building Act 1984 (power to give notice
about unsatisfactory condition of drains) applies to sustainable drainage
10
systems, as defined by regulations under paragraph 17(5) above, as to works
mentioned in that section; and for that purpose—
(a)
it does not matter whether the drainage system, or any part of it, is
adopted under this Schedule, and
(b)
a reference to a local authority is to be treated as a reference to the
15
relevant approving body.
      (3)
At the end of section 59 add—
“(7)
Schedule 3 to the Flood and Water Management Act 2010 extends the
power under subsection (1)(c) of this section to sustainable drainage
systems as defined in regulations under that Schedule.”
20
      (4)
In section 84(1) of the Building Act 1984 (paving and drainage of yards and
passages) for the words “to a proper outfall” substitute “(having regard both
to the need to remove water from the court, yard or passage and also to the
need to dispose of it satisfactorily in the course of or after its removal)”.
New Roads and Street Works Act 1991
25
27
At the end of section 63 of the New Roads and Street Works Act 1991 (streets
with special engineering difficulties) insert—
“(5)
In addition to criteria for designation prescribed under subsection
(2)(a), Schedule 3 to the Flood and Water Management Act 2010
requires designation in certain circumstances (relating to sustainable
30
drainage systems).”
Works on public land
28    (1)
The Minister may make regulations requiring a statutory undertaker to
notify the approving body before commencing statutory works on public
land where the works will or may affect the operation of a drainage system
35
on that land.
      (2)
“Public land” means land owned or occupied by a designating authority for
the purposes of Schedule 1.
      (3)
The regulations shall define—
(a)
“statutory undertaker”, and
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(b)
“statutory works”.

Flood and Water Management Bill
Schedule 4 — Reservoirs
60

      (4)
The regulations may specify criteria for determining what works are to be
treated as works that will or may affect the operation of a drainage system.
      (5)
The regulations may include provision about—
(a)
timing, and
(b)
procedure.
5
      (6)
The regulations may—
(a)
specify consequences of failure to comply with a provision of the
regulations;
(b)
include provision requiring, or enabling an approving body to
require, a statutory undertaker who is carrying out or has carried out
10
works affecting a drainage system to carry out further work in
relation to the system (which may include, in particular, a
requirement to leave the system in a state approved by the
approving body, having regard to national standards on sustainable
drainage);
15
(c)
give approving bodies default powers to undertake work and
recover costs.
      (7)
The regulations may amend an enactment so as to introduce a cross-
reference to the regulations.
Schedule 4
20
Section 33

Reservoirs
Introduction
1
The Reservoirs Act 1975 is amended as follows.
“Large raised reservoir”
2
Before section 1 insert—
25
“A1
“Large raised reservoir”: England and Wales
(1)
In this Act “large raised reservoir” means—
(a)
a large, raised structure designed or used for collecting and
storing water, and
(b)
a large, raised lake or other area capable of storing water
30
which was created or enlarged by artificial means.
(2)
A structure or area is “raised” if it is capable of holding water above
the natural level of any part of the surrounding land.
(3)
A raised structure or area is “large” if it is capable of holding 10,000
cubic metres of water above the natural level of any part of the
35
surrounding land.
(4)
The Minister must make regulations about how to calculate capacity
for the purpose of subsection (3) (and “natural level” and
“surrounding land” are to be construed in accordance with the
regulations).
40