ADA also has Associate Members who are consultants, contractors or suppliers to the water level management industry or local authorities.

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1 The Association of Drainage Authorities Response to the: Implementation of Sustainable Drainage Systems Defra consultation on the implementation of the Sustainable Drainage Systems provisions in Schedule 3 of the Flood and Water Management Act Association of Drainage Authorities 6 Electric Parade Surbiton Surrey KT6 5NT Telephone: +44 (0) admin@ada.org.uk Website: About ADA The Association of Drainage Authorities (ADA) is the association for water level management organisations in the United Kingdom, with over 200 members. Our members include Internal Drainage Boards (IDBs), the Environment Agency, Regional Flood & Coastal Committees (RFCCs), and the Northern Ireland Rivers Agency. ADA was established in 1937 to watch over and support the interests of drainage authorities at a national and parliamentary level, provide a forum for the exchange of ideas and discussions, and disseminate information of common interest. ADA also has Associate Members who are consultants, contractors or suppliers to the water level management industry or local authorities. ADA is recognised as the national representative of the 144 Internal Drainage Boards in England and Wales. Internal Drainage Boards (IDBs) are local public bodies established in areas of special drainage need in England and Wales to undertake works to manage flood risk and water levels on behalf of their community. Consultation Response Compiled by Ian Moodie MSci, Policy & Technical Researcher, ADA (ian.moodie@ada.org.uk) General Comments There remains a lack of clarity around how Lead Local Flood Authorities new duties in relation to SuDS will be funded. Defra states that there will no longer be the need for a developer to pay a commuted sum towards the maintenance of the SuDS. In the short term this will be funded by Defra and there will be consultation regarding the long term. It is not clear whether the short term Defra funding will cover all the costs involved and the short term nature of the funding will not provide adequate time to assess the true maintenance costs of SuDS. Indeed from members experiences the cost of maintaining different assets varies enormously. ADA considers Defra s proposals regarding funding for the implementation of SuDS legislation to be wholly inappropriate, inequitable to developers, and unreasonable on the public purse. Developers must be liable to pay a commuted sum to reflect the maintenance costs of the assets they build if the SAB is obliged to adopt. Much more information, guidance, and consideration needs to be given by Defra to the maintenance of SuDS. Only ONE sentence on the maintenance of SuDS has been included in section 6.3 of the consultation document. Given that for the SuDS to operate effectively requires regular maintenance for many decades in the future, and that if adopted the cost of this work will fall on SABs without proper provision for commuted sums, this is a major concern. Maintenance is often overlooked by developers and

2 consultants who are experienced in designing and building SuDS, but are rarely involved with maintaining these assets. If maintenance is not sufficiently written into guidance for SABs and developers many SuDS solutions may actually result in increasing rather than decreasing flood risk to communities in the future. There is no reference to the conflict between protected species in and around SuDS and maintaining SuDS to their design standards. Protected species can significantly restrict maintenance operations and therefore adversely affect the performance of SuDS assets. There needs to be clear guidance that promotes appropriate design to accommodate protected species, such as larger assets with relevant roughness coefficients, which reflect that maintenance will be restricted and the asset will not perform so efficiently. At the same time clear guidance is needed to enable those maintaining SuDS to keep them in working order. Internal Drainage Boards have the same jurisdiction on Ordinary Watercourses within their Drainage District as the Environment Agency has on Main River. Therefore in section 4.27of the consultation document an IDB should be consulted if the drainage system is in a Drainage District. It cannot be discretionary for the SAB to make the decision to consult the IDB or not, as this risks increasing flood risk elsewhere within the Drainage District. 1. We have based our proposals on the evidence, outlined in our Impact Assessment, of the impact of surface runoff on future development and the benefits of SuDS. Do you have any additional evidence that may alter the recommendations of the Impact Assessment? SuDS must take into account the needs of the local area, including the need in certain circumstances for water to be evacuated early and the benefits of direct discharge to stream. ADA is concerned that insufficient assessment has been made of the resources needed by the SAB. Whilst the average time calculations are appropriate for model applications where succinct and complete information is provided, this is rarely the case recognised by Internal Drainage Boards planning engineers when dealing with flood risk issues in relation to development. Especially with smaller sites, where neither the developer, nor their agent, is knowledgeable on the subject of drainage systems, the discussion with applicants can take substantially longer. ADA believes that there needs to be clear guidance for developers to guide them through the process of making a submission to a SAB, and the mechanisms available to enable officers to provide direction to developers as to what level of detail they require in a developers submission. 2. We propose that SAB approval will not be required for the first 12 months: for developments that already granted planning permission before commencement; or for develop pments with one or more reserve matters where an application for approval of the reserve matter(s) is made; or for which a valid planning application has been submitted before commencement Do you agree with this approach for transitional arrangements, if not please explain why? ADA disagrees in part with these proposals. The exemption should only be accepted on those sites that have no conditions on surface water disposal and should be at the discretion of the SAB. It has been the custom for many developers to gain outline or detail planning consents but leave the surface water disposal matters to be dealt with at a later date. In growth areas, developments are often large scale and may be phased over 5 or even 10 years. Too often, the best solution cannot be accommodated because there is not sufficient room between layouts that have previously received full consent and cannot be changed. Where fully detailed and final planning permission has been granted, ADA accepts that it would be right to grant an exemption. Therefore ADA believes that this exemption should be linked only to the final grant of planning approval for surface water drainage matters. 3. We propose implementing on the common commencement date of 1 October 2012, do you agree this is reasonable? If not would you prefer an implementation date of April 2013, October 2013 or after 2013? ADA recommends delaying the implementation of commencement until 2013 to allow SAB authorities time to prepare for the increased administrative and technical workload. Defra has provided insufficient information to allow many Authorities to prepare for their new SAB role until this consultation, and many decisions about the functioning of SABs are yet to be decided by Defra. Whilst ADA recognises the need for implementation as soon as practicable, fundamentally the new SAB system should be enabled to function from the start, rushing implementation may lead to confusion and increased costs.

3 There are other flood risk management authorities, especially Internal Drainage Boards who have skills that the SABs can utilise. ADA believes there should be sufficient time before implementation to develop working agreements between SABs and IDBs so that the functions of SABs can be fully delivered from the start. Rushing implementation may mean that SABs have to put in either temporary or more costly solutions such as sub-contracting to consultants. 4. We understand that there may be capacity issues for SABs to meet their new duty to approve drainage. We are therefore considering whether to phase implementation of the requirement for approval. Do you think a phased approach is necessary? ADA recognises the capacity issues for SABs to meet their new duty to approve drainage and that a phased approach may assist with building up staffing levels of SABs gradually. However, ADA does not support the phased implementation of the requirement for approval and consider that it would provide greater clarity for SABs, developers, and risk management authorities if the implementation of commencement were delayed until a date in A number of ADA s members have expressed concerns regarding the current resources and skills available to LLFAs. The SAB role is a highly technical role where an authority will require experience engineers who understand catchment hydrology, hydraulic design, geotechnics, biodiversity, health and safety, and asset maintenance. It is more than an administration tick-box checklist. ADA would therefore recommend SABs utilising the skills of other Risk Management Authorities such as IDBs to assist with the workload and integrate a more holistic approach to catchment management in relation to SuDS. 5. Do you agree that development under a Neighbourhood Development Order should be exempt from the requirement of SAB approval? ADA does not believe that development under a Neighbourhood Development Order (NDO) should be exempt from the requirement of SAB approval. All developments should be considered on the same basis. The mode of drainage and its impact elsewhere must be assessed on NDO developments as with any other. If NDOs are exempted it is not clear that this will necessarily occur. The SAB will then be asked to adopt SUDs which they may not have been fully involved with. If they then refuse and, because the SUDs are exempt from approval, adoption will be voluntary. There is then no certainty who will then maintain the drainage arrangements. 6. Drainage for surface runoff should be sustainable and affordable to build and maintain. Do the National Standards deliver this, if not please explain why? ADA supports the guiding principle to design SuDS at the earliest stage of site selection, as good drainage design is reliant on site topography. ADA is however concerned with some of the language used in paragraph 3.5 and Annex A that appropriate drainage requirements may be dumbed down if not affordable. Ultimately the sustainable solution will be the most viable whole life scheme for a site, if this is deemed unaffordable by a developer, especially in a lowland context such as within the Fens, then the whole development may have to be reconsidered. Otherwise the cost of rectifying dumbed down SuDS may fall on others, including the taxpayer. The National Standards should clearly state that a proposed drainage system does not comply unless it is designed to allow adequate maintenance and refurbishment. This must relate to both the SuDS accessibility (e.g. for plant machinery etc.) and its technical specification. Operation and maintenance of drainage systems is often a topic poorly understood by developers and designers, who have limited experience of post construction management of sites. Clear guidance will be needed on maintenance standards. The National Standards needs to make it clear that the appropriate risk management authority (Environment Agency, LLFA, or IDB) should have the final say as to whether discharge would result in an unacceptable risk of flooding from the surface water body. In an Internal Drainage District it will be for the IDB to grant consent for In Section B Peak Flow Rate and Volume of the draft National Standards, ADA accepts the general principle used. However, for low lying areas (such as those found within Internal Drainage Districts) the 2 litres per second per hectare has been historically accepted as being 1.4 litres per second per hectare and this value should be acknowledged.

4 In Section D Function of the draft National Standards, reference should be given to finished floor levels, and their height above the 1 in 100 year flood event level. Guidance should include information on consideration of overland flood routing to avoid thresholds that could allow flood flows to spill into properties. Clear guidance will be needed on sustainability and biodiversity. If Defra wishes to encourage SuDS to promote biodiversity then guidance must be provided to ensure that the introduction and encouragement of protected species in and around a SuDS does not conflict with the function, operation and maintenance of the asset. For instance, a developer may need to increase the capacity of an asset by 50% to enable a more flexible maintenance regime so as not to disturb nesting birds. Guidance will also be needed on what constitutes a sustainable solution. For instance, permeable paving often requires the extracting of mineral resources from the ground, drying them, and in the case of paviors, baking them. They are then transported across the country using limited resources and increasing the carbon footprint. They use labour intensive techniques which require careful supervision if they are to work correctly and may require intensive maintenance to sustain design standards. 7. Affordable sustainable drainage systems for surface runoff are comparable in costs with conventional alternatives. Do you agree? Affordability of SuDS relates to three broad areas: technical design and construction, space, maintenance (whole life cost). ADA broadly agrees that the construction of sustainable drainage systems for surface runoff are comparable in cost to conventional alternatives. It is recognised however that the cost of the construction of SuDS varies significantly, with solutions often become proportionately easier to realise on larger sites. It is solutions for smaller sites where more complex design issues occur and costs increase. It is important too to fully consider the whole life costs of systems when looking at funding arrangements for SuDS. Therefore, developers should continue to pay commuted sums for maintenance to encourage them to take responsibility to provide SuDS that are not costly to maintain and a burden on the public purse. The main issue of affordability at design and construction is that of the space required to build appropriate and proportionate SuDS solutions including access for maintenance in the future, versus the developer s desire to maximise the property space on a site. It will be prudent for an SAB to take into account the maintenance and replacement costs of aspects of a SuDS before certification. Systems such as soakaways and permeable paving which become silted over time reducing the capacity of such systems below required design standards. Affordability is also an issue when protected species occur in a SuDS, as this will increase the whole life cost of maintenance. Best practice guidance should be given to promote biodiversity and to protect authorities responsible for maintenance. This will help ensure the long term viability of assets, keep maintenance costs down, and enable designers to incorporate more biodiversity within their SuDS plans. ADA is concerned that, according to Annex A, a SAB should be required to assume that a SuDS is functioning correctly, unless there is evidence to the contrary. A developer should be required to provide sufficient robust evidence to prove that a SuDS is functioning correctly. 8. We propose that the SuDS Approving Body must determine an application for approval within 12 weeks where it relates to major development or a county matter and 7 weeks where it relates to other development. But could applications be determined in less time? If yes, please specify reduced time to consider applications: 1 week less 3 weeks less 5 weeks less ADA considers the timescales proposed by Defra to be appropriate. The encouragement of pre application discussions and the exemption list in Figure 1 are broadly supported.

5 However, much depends on the developer and preliminary discussions with the SAB and other Flood Risk Management Authorities. Early discussions should allow the approval time to be minimal. However, large sites in growth areas can develop over a 10 or 20 year period and the integrated design of the strategic Sustainable Drainage System can take 5 years. Therefore the guidance should make it clear that the clock should only start running when all details have been accepted (and preferably agreed) by all parties and Flood Risk Management Authorities. The cumulative effect of smaller developments which do not require planning permission and are therefore exempt from SAB approval should not be overlooked as they will contribute to a pressure on the disposal of surface water. ADA also disagrees with the proposed exemption for businesses employing less than 10 people. Any exemption should be related to the size of the property, rather than the number of employees. 9. Do you think guidance for calculating the amount required for a non-performance bond is necessary? Yes, ADA considers that guidance for calculating the amount for a non-performance bond would add clarity for developers and SABs, ensure national consistency across the country, and help avoid disputes. 10. Do you agree with our proposals to set approval fees for three years? If you disagree, please explain why and provide any supporting evidence. ADA considers that pre-application guidance and supplementary guidance during the application process should be cost recoverable. Internal Drainage Boards who have experience of liaising with developers regarding SuDS as part of their flood risk authority role often have provided days of guidance sometimes spanning over several years. Such costs should be covered by a developer. There should also be provision for statutory consultees to levy fees. 11. We propose that the fee for each inspection of the drainage system should be set on a cost recovery basis rather than to a fixed fee. Do you agree with this proposal? ADA agrees with the cost recovery approach for inspection of drainage systems by the SAB. 12. We propose to make arrangements for fees for applications to vary an approval, re-submitted applications, discounted fees, fees for cross area approvals as well as the refunds of application fees. Do you agree that this covers all the scenarios for which fees are likely to be needed? If not, please explain what is missing and provide further explanation if required. ADA believes further details need to be provided on the use of these fee structures. 13. We propose setting a time limit of 21 days for statutory consultees to respond to the SAB. Do you agree with the timeframe proposed? ADA broadly agrees with the 21 day timeframe proposed, but would not agree with any shorter timeframe and considers that an extension clause should be available to SABs if there are complex issues and discussions are on-going to reach an agreement, even if longer than 21 days. Without an extension clause an SAB may be forced to give a series of objections and refused applications when meaningful extended discussion could resolve issues more swiftly and efficiently. ADA considers that it may be appropriate to consider a 28 day consultation period. Defra should consider providing greater clarity around the involving IDBs and District Councils in preapplication discussions especially, in the case of IDBs, where the IDB would be responsible for conducting maintenance, or the SuDS would discharge into an IDB watercourse. There must be provision for statutory consultees to levy fees in such circumstances to recover costs. 14. We propose to give enforcement powers to the SuDS Approving Body and the local planning authority. Do you agree? Yes, however Internal Drainage Boards are well placed to identify enforcement issues relating to the performance of drainage systems within their Internal Drainage Districts. As such ADA believes IDBs should be granted with enforcement powers if acting in co-ordination with an SAB. Alternatively a mechanism should be provided by which an IDB can formally request an SAB to investigate issues

6 relating to a SuDS which in the view of the IDB is failing or not performing to the required design standard. 15. Do you agree that the proposed powers of entry are reasonable and proportionate, if not please explain why? Powers of Entry are required before, during and after construction so as to inspect the proposed site, inspect the works and then carry out maintenance operations. The powers of entry provided in Annex C are focused only on the construction phase. This must be broadened to ensure powers of entry are more widely available, especially for maintenance. 16. We propose that claims for compensation related to powers of entry and temporary stop notices must be submitted within 12 months of the powers being exercised or the notice being withdrawn/ ceasing to have effect. Do you agree, if not please explain why? ADA disagrees and considers this period to be too great a period of time within which to allow a compensation claim to be made. ADA would suggest 6 months to be more appropriate. 17. We propose that, as in planning, a time limit of four years is set for when the SuDS Approving Body is able to give an enforcement notice? Do you agree, if not please explain why. This timeframe is unlikely to allow for the SuDS to be tested from a significant rainfall event to prove that it was designed and built correctly. Therefore a certification approach as used with reservoirs under the Reservoirs Act may be more appropriate, which can only be signed off when the asset has been shown to work properly. 18. Are the criminal offences proposed in the draft statutory instrument appropriate and proportionate? A mechanism to prevent the serious implications of development increasing flood risk and pollution would provide a good deterrent to developers who do not design and construct robust SuDS, as they will have left site before the assets are tested, is supported. However, this must be balanced against increased bureaucracy required to justify decisions made. 19. We propose to provide similar procedures for appeals against SuDS enforcement notices to those which currently apply to planning enforcement appeals (written representation, hearing or inquiry). Do you agree, if not please explain why? Agree. 20. We propose a register of SuDS enforcement notices which mirrors the register for planning enforcement notices. Do you agree? Agree. 21. For the purpose of the SuDS Approving Body's duty to adopt, "sustainable drainage system" means those parts of a drainage system that are not vested in a sewerage undertaker. Do you agree this provides certainty and clarity on what is adoptable by the SuDS Approving Body? If not please provide an alternative definition. No. The definition as drafted in paragraph 6.2 does not sufficiently define SuDS to exclude ordinary watercourses and Main River. Clarification is needed to resolve this issue in order to avoid implying that many thousands of kilometres of ordinary watercourses that are managed by relevant authorities including Internal Drainage Boards would come under these regulations. The lack of accuracy in the current definition is a significant concern to ADA s members, especially as ADA raised concerns regarding the accuracy of the definition during the drafting of the Flood and Water Management Bill and assurances were given by Defra staff that this would be clarified in Guidance during implementation. ADA believes the existing definition of watercourse from the Section 72 (1) of the Land Drainage Act 1991 should be used to exclude watercourses managed by relevant authorities from the definition of sustainable drainage systems. 22. The SuDS Approving Body s duty to adopt does not apply to a single property drainage system. We propose that "a drainage system or any part of a drainage system is to be treated as

7 designed only to provide drainage for a single property if it is designed to provide drainage for any buildings or other structures that, following completion of the construction work, will be owned, managed or controlled by a single person or two or more persons together". Is our definition clear on what will or will not be adopted? if not please provide an alternative definition. ADA considers the definition of single property drainage system to be inappropriate as a single property such as school, university campuses or distribution centres can have a significant impermeable area, which will have a considerable effect on surface water. In other cases, such as residential flats, ownership and occupation is likely to be different and therefore these properties should not be classed as single properties. ADA considers it to be inappropriate for single property developments to be exempted unless they fall below a square metre limit. All developments above this threshold should satisfy the SAB that flood risk is being managed correctly and if the SAB does not adopt SuDS for such developments it would be prudent to provide a power for SABs to request information on the maintenance of these systems and a power to require maintenance works to be carried out. 23. We propose that the SuDS Approving Body should determine a request for adoption within 8 weeks of receiving the request. Do you agree with this timeframe? Agree in part although ADA is a concerned that developers could use this timeframe to force poorly designed or maintained systems into public hands when a longer period of discussion would produce a more sustainable solution. A 12 month period may be more appropriate. 24. We propose for the SuDS Approving Body to have a 28 day time limit for administrative processes (for example return of bonds, the process of registration or designations). This time limit applies throughout the SuDS process. Do you agree with this timeframe, if not please explain why? Agree. Adequate time must be allowed for consultation with statutory consultees. 25. We propose that all Statutory Undertakers must notify the SuDS Approving Body at least four weeks in advance of works that may affect the SuDS operation. Do you agree with this timeframe? It would be advisable to guide Authorities to adopt a Consenting process aligned with Section 23 of the Land Drainage Act This would ensure that statutory undertakers do not install services that compromise the SuDS or its future operation, such as laying a cable to close and shallow that could affect maintenance and future improvements should they be needed. Also there needs to be a distinction between maintenance of existing assets (no impact) and the provision of new assets (potential impact). 26. We propose upon completion of the works, the SuDS Approving Body must decide within 12 months if it is satisfied that the SuDS functions in accordance with the National Standards. Do you agree, if not please explain why? Partially agree. ADA considers that the 12 months should begin on completion of a development rather than completion of a SuDS. In a large housing development the SuDS may be completed before a substantial number of the houses it is designed for are constructed. 27. We propose that an appeal must be made within six months of the SuDS Approving Body s decision or within six months of when the decision was due. Do you agree? Agree. This appears to tie in with the appeals process under the Town and Country Planning Act, which seems sensible. 28. We propose to adopt similar procedures for SuDS appeals to those which currently apply to planning appeals (written representation, hearing or inquiry). Do you agree, if not please explain why? Agree. This would appear a sensible proposal in view of the close linkages between planning and SUDS approval.

8 29. Should we take action to avoid the increase of un-adopted SuDS? If your answer is no, please explain why? Yes, action is needed to avoid the increase in un-adopted SuDS. IDBs are not mentioned in the consultation document as potential adopters of SuDS, which is a significant oversight by the Defra. More should be done by Defra to better understand the role of IDBs regarding SuDS within Internal Drainage Districts. In such cases the IDB may be a more appropriate adopter of the SuDS than the local authority or water company. Therefore, it is important that the SAB considers strongly any evidence and comments provided by an IDB during statutory consultation.