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Huw Irranca-Davies: I agree with the intention behind the hon. Lady's comments, but not with her amendments. Let me deal directly with the issue of consultation, which we dealt with in Committee as well, and the allegation that water companies and contractors have not been consulted. Actually, they are key members of the private sewers review stakeholders steering group, and we have been working closely with them. There were consultations in 2004 and 2007-I will come to the individual contractors soon-to which water companies responded. They also worked with DEFRA in the follow-up to the consultations.
I would like to make an interesting point about the concerns raised. I have seen letters as well. Letters have been sent to the Department-from smaller drainage contractors, family firms and so on-saying what the proposals will mean for them. I cannot say precisely what they will mean, but as I have said previously, I think that there will be opportunities, post-transfer, because the work will need to be done. The number of small contractors still operating in Scotland, which is slightly ahead of us on this, makes interesting reading, because it is comparable to the numbers that were operating before. The Scottish figures are also comparable to the numbers operating in similar city areas in England-for example, we can compare Edinburgh to a similar-sized city in England. Actually, there has not been a shake-out; they have responded. So I anticipate that there will still be a market for small operators.
The hon. Lady rightly raised the issue of consultation on private sewers. In December 2008, we announced that the transfer would take place from 2011, and we are working to that timetable. We have to consult on the affirmative resolution regulations that she mentioned to make transfer happen, and we will do that in the next few months. I do not have a specific date, I am afraid, and we do have an election right in the middle of it, unfortunately-I say unfortunately, but I am pro-democracy of course. However, it does cause some problems with setting a specific date. The position for Wales is set out clearly in the strategic policy statement. We intend, therefore, to bring this forward in the next few months-by which I mean this side of the summer. I cannot promise that it will be this side of an election, however, because that is out of my hands.
The concern behind amendment 18 is that sewerage undertakers should not be liable for failure to keep records of the assets that they inherit as a result of the transfer. The EA is concerned that such a blanket exemption, as set out in the amendment, could make it difficult to gather a full understanding of the impact of private sewers and lateral drains on sewerage undertakers'
systems. It is the Government's intention to look carefully at that as part of the transfer. However, in any event, should any complaint about a breach of duty be made, Ministers could reasonably take into account whether a company was acting appropriately in deciding whether enforcement action might be appropriate.
Accepting amendment 17 might limit the extent, scope and speed of transfer and the Government's regulation-making power on transfer schemes, which is subject to the affirmative resolution procedure. Following any transfer, the undertakers will have statutory access rights provided to them when laying or accessing their own infrastructure. Those rights were granted expressly by Parliament and have been considered by successive Administrations to strike the right balance between the interests of landowners and those of sewerage companies. Where they wish to obtain additional rights, they can seek to agree them with the landowners.
Miss McIntosh: I do not know whether others in the House are aware of this, but the Minister has had a series of discussions between the end of the Committee stage and the Bill's remaining stages today. It would be extremely helpful, first, if he would take this opportunity to report to the House on the reassurance that he has given the water companies, so that we can have on the record the exact statement that he wished to make to them-the one that he assured them that he wished to make to them-and, secondly, if he could confirm that that is said on the basis of Pepper v. Hart, so that if we do not press our amendments, we shall have an assurance that his statement will be justiciable and can be relied on as an indication of how the Bill is to be interpreted subsequently.
Huw Irranca-Davies: Indeed. I shall be happy to respond to that point in full. However, let me make a little progress first, and then I shall turn to it directly.
Amendment 13 specifies a number of issues that must be included in agreements for the adoption of new foul sewers and lateral drains. Amendment 14 provides for associated regulations. Although stakeholders advised us to retain adoption agreements under section 104 of the Water Industry Act 1991 as the vehicle for the adoption of new foul sewers and lateral drains by undertakers under the new mandatory regime, we do not intend to specify in primary legislation the range of details that must be covered in the agreement. That preserves the flexibility needed to deal with site-specific issues, and avoids placing undue burdens on small developers that do not currently use the adoption process. Where there is a dispute about the content of an agreement, the matter can be taken to Ofwat for determination. We think that that is the right approach to promote innovation and site flexibility.
Amendments 15 and 16 would require new building regulations to be made as necessary for the purposes of, and taking account of, new section 106B of the 1991 Act, which provides for new mandatory construction standards for new foul sewers and lateral drains connecting to the public sewerage system, and for their automatic adoption by sewerage undertakers. I would like to reassure hon. Members that the proposals in clause 42 are not intended to require any changes to building regulations. Building regulations and building control will continue to apply to drains on a development connecting to the adoptable
lateral drains and sewers, but not to the laterals and sewers themselves, which will be subject to agreement with, and control and inspection by, the water and sewerage companies. That activity will take place alongside the building control inspection process, but not overlap it. An evaluation of the relevant building regulations will start this year and will consider what new guidance might be needed on the changes that clause 42 introduces, to clarify how the building control system will work alongside them.
The hon. Members for Vale of York and for Upminster (Angela Watkinson) also tabled new clause 7, which seeks to restrict the connection of waste water drainage from new developments to the public sewerage system by making it subject to planning approval. New clause 7 would require water and sewerage companies to be consulted before approval on the capacity of their systems to manage the extra demand. It would also seek to ensure that the responsibility for meeting the cost of creating any additional necessary infrastructure is apportioned. Sir Michael Pitt's review of the 2007 floods recommended that
"the automatic right to connect surface water drainage of new developments to the sewerage system should be removed".
The Bill does just that. Drainage systems must be approved by the SUDS approving body-the SAB-as being in line with the national standards for drainage systems before any residual connection to the public sewer is allowed, and then only as a last resort-I keep repeating this-after SUDS have been employed to reduce the flow to the sewer. Water and sewerage companies will be statutory consultees in the SUDS approval process.
I now turn to- [ Interruption. ] Sorry, I will come back to that.
The hon. Members for Vale of York and for Upminster have also tabled several amendments on the definition of SUDS and drainage systems. New clause 5 seeks to insert a further definition of sustainable urban drainage systems into the Bill. We debated that issue fully in Committee, and I should like to restate our view that we see no desirability in a definition that constrains the idea of sustainable drainage to urban areas. As 2007 demonstrated, surface water flooding is both an urban and a rural issue, and SUDS can be used in both rural and urban areas, and everything in between. Therefore, the proposed amendment is more limiting.
Amendments 2 and 3 seek to introduce the idea of water efficiency into the definition or application of SUDS. We understand the intention behind amendment 2. However, the current definition sets out what a drainage system is, whereas the amendment attempts to insert a depiction of the ideal characteristics of a drainage system. That has a consequential impact on the remainder of schedule 3, which refers to the approval of drainage systems. By inserting a reference to water efficiency, amendment 3 highlights another potential side benefit of SUDS for water use. We should all agree that we need to do more to reduce water use generally, especially in areas of water shortage-and of course, clause 36 also addresses that issue. However, I suspect that in amendments 2 and 3, hon. Members are referring to the use of rainwater harvesting as a sustainable drainage technique, which is something that I am pleased to have in my house; I have to say that it works very well and has been well worth it.
Rainwater harvesting is indeed an acceptable SUDS technique. However, before making it a requirement of SUDS, we should understand the costs, benefits, practicalities and carbon impacts. The issue will therefore be addressed in the development of the national standards against which any proposed drainage system will be judged. I am not ruling out rainwater harvesting systems as a potentially beneficial SUDS technique-indeed, I love them-and especially not in some areas, but it is not necessary to drive that through primary legislation.
The hon. Members for Vale of York and for Upminster have also tabled new clause 6, which would make provision to state which body has to be responsible for the ownership and maintenance of SUDS. As we debated in Committee at some length, the Bill is clear on that point. Paragraph 6 of schedule 3 already specifically places the responsibilities and duties of a SAB-a SUDS approving body-on the unitary or county authorities. Paragraph 6 also allows the Minister to appoint by order an alternative body to approve drainage systems in a specified area. The SAB would have responsibility for the approval of drainage systems in new developments and redevelopments to the national standards for sustainable drainage. The SAB is also responsible for adopting and maintaining SUDS that serve more than one property, where they have been approved.
Miss McIntosh: I am sure that the Minister will find his place and respond to my earlier queries in due course, but on that point, will the water and sewerage companies be consulted on the building standards? They are keen that they should be, so it is important that we should have that assurance.
Huw Irranca-Davies: Yes, absolutely. The hon. Lady makes a good point. I can confirm that the water and sewerage companies will indeed be consulted. Their input will be critical. I will return to the points that she made in her opening remarks that I have not already addressed, because she made quite a few.
To return to new clause 6, adoption does not need to confer ownership, as the new clause would seem to imply, but simply a responsibility for maintenance. The maintenance duty for adopted SUDS will ensure that they continue to provide effective drainage for the properties that they serve.
The hon. Members for Vale of York and for Upminster have also tabled amendment 19, which would require the Minister to ensure that provisions are in place to guarantee that the cost of a new development's connection to a SUDS and a sewerage system are borne equally by the new households that benefit from the new connection. I presume it is intended that the Minister would make such provisions by regulation.
If the intention of the amendment is that the Government should find a way of funding the long-term maintenance costs of SUDS, I can reassure the House, and I can reassure the hon. Lady, as I did in Committee, that we are actively considering the issue. As the hon. Members who moved the amendment know, in Committee I also undertook to formalise arrangements with the Local Government Association to keep under review the costs falling on local authorities. That includes SUDS and the wider range of burdens. I reported earlier in the debate that my officials and officers of the Local
Government Association have been meeting to take forward this commitment, and that I have written to Councillor Gary Porter, the environment chair of the LGA, proposing formal terms of reference.
8.30 pm
The hon. Members for Vale of York and for Upminster also tabled new clause 8, which seeks to ensure that the relevant planning authority for all major new developments consults water companies and the Environment Agency. It further requires that these consultations are in accordance with planning policy statement 25, that they establish the impact of the proposed new development on the local drainage system, and that the consultations inform the planning process. We debated that thoroughly in Committee. As the House will be aware, the Environment Agency is already a statutory consultee in England for planning applications in flood-risk areas, and for all applications for major developments. These arrangements are set out in the table in article 10 of the Town and Country Planning (General Development Procedure) Order 1995, as amended.
Miss McIntosh: I am delighted that the Minister is confirming what we already know about the Environment Agency being a statutory consultee on that basis. Why would he not agree to water companies being statutory consultees on exactly the same basis, to avoid the issues that were raised by my hon. Friend the Member for Basingstoke (Mrs. Miller) and the hon. Member for South Derbyshire (Mr. Todd)?
Huw Irranca-Davies: We are trying to achieve the same end, and we debated the matter in depth in Committee. The water companies are part and parcel of the process and need to be consulted in connection with the flood risk management function, but, as was explained in detail in Committee, we do not consider it appropriate to make them the subject of the same statutory duty of consultation.
The hon. Members for Cheltenham (Martin Horwood) and for Brecon and Radnorshire (Mr. Williams) tabled amendment 23, which seeks to amend paragraph 6 (1)(b) of schedule 3, so that if there is no unitary authority for an area, the role of the SUDS approving body would be given not to the relevant county council but to the local planning authority. Again, we debated that in Committee.
I will not restate the whole debate, but we consider that SUDS approval and adoption responsibilities fit together, leading to robust well-designed SUDS that can be efficiently and effectively maintained. Placing these functions at the county council level fits well alongside those councils' existing responsibilities for highways maintenance. We expect many SUDS to be located in or alongside roads, especially in dense urban areas.
More importantly, county councils will have wider responsibilities as lead local flood authorities under clause 6(7). County councils also have responsibility for surface water management planning, and on a simple geographical basis, have a much wider overview of surface water and flooding issues. Placing the SUDS approving body-the SAB-at the county, rather than the district, level will mean the SAB has the more strategic overview and expertise in determining drainage applications.
Of course, not all drainage applications needing approval by the SUDS approving body will also require planning permission. However, where planning permission is required, we have made the SAB a statutory consultee to the planning process and we have clearly mapped out how the process would work. Finally, as I said in Committee and reiterate now, there is nothing to prevent unitary or county local authorities, in their role as SUDS approving bodies, from transferring, by agreement, their approval functions to a local planning authority. However, the SUDS approving body would retain responsibility and liability for SUDS, so accountability stays there.
Finally, I shall deal with the Government amendments in this group and make some additional points. In Committee I agreed to consider an amendment tabled by the hon. Members for Vale of York and for Upminster which would make internal drainage boards statutory consultees to SUDS approving bodies. In response, amendment 53 provides for that to be done.
On amendment 54, in Committee I agreed to consider an amendment tabled by my hon. Friend the Member for City of Durham (Dr. Blackman-Woods) on regulations covering the timing and procedure for applications to the SUDS approving body. As I said in Committee, it seems eminently sensible to enable the Minister to make regulations about the timing and procedure for determining applications for approval, and also that the regulations should be able to specify what should happen if the timetable is not complied with. Such a power will enable the Government to ensure that the SUDS approval process is fully in line with the timetable for determining planning applications. I therefore commend the amendment to the House.
Finally, amendments 55 and 56 are minor technical amendments. Amendment 55 makes the drafting of the Bill internally consistent. Amendment 56 closes a small loophole in the provisions on adopting sustainable drainage systems. As the Bill stands, those parts of a drainage system located partly on and partly off a road are maintained by the SUDS approving body and the highways authority respectively. Both must maintain the SUDS to national standards and approved proposals.
However, we need to be clear about arrangements to maintain, to national standards, SUDS located entirely in a publicly maintained road. This situation will be extremely rare but must be captured for completeness. Without the amendment, the road that is also an entire SUDS would be maintained to function as a road, but not as a SUDS, potentially leaving properties served by those SUDS with inadequate drainage. I hope those comments are helpful.
I now turn to the work that has been done with stakeholders on the mandatory build standards. The water industry has provided voluntary criteria to developers for the adoption of sewers since December 1981. However, there are often no discernible benefits for the water company or developer in pursing the adoption process, and as we have heard, that results in homeowners ending up with the liability for those assets. DEFRA has been working across a range of stakeholders including, but not exclusively, the Home Builders Federation, the National House-Building Council, Ofwat, the Consumer Council for Water, the Local Government Association, Communities and Local Government and Water UK among others to provide a basis for consultation on a
mandatory build standard for gravity, foul sewers and lateral drains. We will consult similarly on SUDS, and we are already engaging with stakeholders on national standards for SUDS.
On the discussions with Water UK, I am not sure that the hon. Member for Vale of York raised any particular point, but I wrote to all members of the Public Bill Committee recording the results of the meeting. Let me quote from letter that went out on 28 January:
"We had a good discussion about the sustainable drainage provisions. I clarified the arrangements for SUDS maintenance, including the statutory duty on the SUDS Approving Body to maintain SUDS to national standards...We discussed the sewerage undertakers, listed the statutory consultees to the SUDS Approving body".
Huw Irranca-Davies: I will finish there and give way to the hon. Gentleman.
Martin Horwood: We have little time remaining, so I want to ask the Minister a question. He mentions many consultations, and there is much public concern about these issues. Does he agree that two important issues have not been discussed tonight: insurance and planning permission for houses and new developments in flood-risk areas, which are both matters of huge public concern that we should be able to debate?
Huw Irranca-Davies: Indeed. I have dealt with many of the issues and I am coming to the end of my comments. I am checking whether there are any substantive issues that I have not yet dealt with. I have dealt with internal drainage boards and with most other significant points. I would be happy to write to hon. Members who have taken part in the debate. With those words, however, I recommend the Government amendments and invite hon. Members to withdraw their amendments.
Miss McIntosh: I am extremely disappointed by the Minister's latter remarks because it was our understanding, and that of Water UK and the other companies he met, that he was going to make a statement on the record this evening that could be potentially justiciable. He has not gone as far as they would have liked, as they wanted to see our amendments written into the Bill. The Minister may have written to members of the Committee, but that does not include all the participants in the debate today, including my hon. Friend the Member for Basingstoke (Mrs. Miller) and the hon. Member for South Derbyshire (Mr. Todd). What has happened, as I understand it, does not meet the terms of the Pepper v. Hart case, which we relied on when we were in government in the past.
Huw Irranca-Davies: I wonder whether the points that the hon. Lady raises, on which Water UK seeks clarification, relate to this particular group of amendments or to a later group.
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