Sustainable Drainage (SuDS) Statutory Guidance

Sustainable

Drainage (SuDS)

Statutory Guidance

For local authorities on the implementation of

Schedule 3 to the Flood and Water Management

Act 2010, the mandatory use of SuDS on new

developments and approval and adoption by

the SuDS approving body (the SAB)

Guidance

Mae’r ddogfen yma hefyd ar gael yn Gymraeg / This document is also available in Welsh.

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Contents

Summary

Section 1:

Introduction

Legal context

Status of this guidance

Post implementation review

Why we need mandatory SuDS on new developments

Section 2:

Implementation

The main provisions of Schedule 3 to the Flood and Water Management

Act 2010

Statutory Standards for SuDS, - principles, standards and guidance

The design and delivery of multiple benefits SuDS

Engaging communities and householders

Transitional arrangements for developments in progress

Exemptions from the need for SAB approval

Drainage systems subject to approval but not SAB adoption

Linking with existing processes - planning, highways and parks

Setting SAB fees and service standards

Section 3:

SuDS Approval

Before an application for SAB approval is made

Consulting with statutory and non-statutory consultees

Making an application to SAB for approval, requirements, determination,

conditions and the application form

Stipulating what inspections will be required

Considering SAB agreements

Deciding whether a Non Performance Bond is required

Charging fees for approval and inspections

Section 4:

SuDS Adoption

Adoption duty

Exceptions to the duty to adopt

Voluntary adoption

Maintenance and the means of funding for the scheme for its design life

Designation duty - asset register, monitoring and reporting

Section 5:

When things don’t go to plan

Resolving disagreements

Enforcement

Annex 1 Flow chart of the SuDS application process

Annex 2 Resources and useful links

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Summary

Sustainable development in Wales is established in our legislation. The Well-being

of Future Generations (Wales) Act 2015 requires all public bodies in Wales “to work

towards the goal of “A nation which maintains and enhances a biodiverse natural

environment with healthy functioning ecosystems that support social, economic and

ecological resilience and the capacity to adapt to change”.

We need to give more thought to the long-term, working better with people

communities, and each other, to prevent problems before they arise. Under section

6 of the Environment (Wales) Act 2016 public bodies in Wales have a duty to

maintain and enhance biodiversity and promote the resilience of eco-systems –

meeting this duty is vital to ensure long-term viability and climate change adaption.

From 7

January 2019, all new developments of more than 1 dwelling house

or where the construction area is 100 square meters or more, will require

sustainable drainage systems (SuDS) for surface water. The SuDS must be

designed and built in accordance with Statutory SuDS Standards

published

by the Welsh Ministers and SuDS Schemes must be approved by the local

authority acting in its SuDS Approving Body (SAB) role, before construction

work begins.

Implementing SuDS compliant with the Statutory SuDS Standards for all new

developments, will directly contribute to delivering:

 Well-being Goals for cohesive, resilient and healthier communities,

consistent with duties on public bodies under the Well-being of Future

Generations (Wales) Act 2015 (external link)

;

 Sustainable development, consistent with duties on planning authorities

under the Planning (Wales) Act 2015 (external link); and

 Biodiversity enhancement, consistent with duties on public bodies under

the Environment (Wales) Act 2016 (external link).

What is a SAB?

Schedule 3 to the Flood and Water Management Act 2010 (the 2010 Act)

establishes SABs in local authorities. The legislation gives those bodies statutory

responsibility for approving and in specified circumstances, adopting the approved

drainage systems.

The SAB is established to:

 Evaluate and approve drainage applications for new developments where

construction work has drainage implications, and

Statutory SuDS Standards for designing, constructing, operating and maintaining surface

water drainage systems, available at;

https://gov.wales/topics/environmentcountryside/epq/flooding/drainage/?lang=en

Guide to the Well-being of Future Generations (Wale) Act 2015, available at;

https://gov.wales/docs/dsjlg/publications/150623-guide-to-the-fg-act-en.pdf

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 Adopt and maintain SuDS schemes, subject to the conditions and

exemptions specified in the 2010 Act

What is a SuDS application?

An application demonstrating compliance with the Statutory SuDS Standards for

the design, construction, operation and maintenance and operation of surface

water systems serving new developments, must be submitted to the SAB

Applications may be submitted to the SAB for determination either directly as a free

standing application or alongside the planning application via the Local Planning

Authority (LPA) (a combined application)

It is important to note that construction work which has drainage implications must

not be commenced unless the drainage system for the work has been approved by

the SAB

See paragraphs 17, 18 and 19 of Schedule 3 to the 2010 Act.

See paragraph 5(2) of Schedule 3 to the 2010 Act.

See paragraphs 8, 9 and 10 to the 2010 Act.

See paragraph 7(1) to the 2010 Act.

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Section 1 : Introduction

Legal context

1.1 Schedule 3 to the Flood and Water Management Act 2010 (external link) (the

2010 Act) provides a framework for the approval and adoption of surface

water systems serving new developments. It does not apply to retrofit and

existing drainage systems. The Welsh Government consulted on its

implementation from May to August 2017

. A further consultation

on the

Statutory Instruments required to deliver this followed the announcement in

November 2017

by the Cabinet Secretary of our intention to introduce the

Schedule 3 requirements for new developments.

1.2 The issues raised during consultation have been considered in finalising the

five statutory instruments, which deal with:

 Approval and Adoption (The Sustainable Drainage (Approval and

Adoption) (Wales) Order 2018) (external link);

 Procedural matters relating to approval and adoption (The Sustainable

Drainage (Approval and Adoption Procedure) (Wales) Regulations 2018)

(external link);

 Fees (The Sustainable Drainage (Application for Approval Fees) Wales

Regulations 2018) (external link);

 Enforcement of the requirement for approval by the SuDS Approving

Body (The Sustainable Drainage (Enforcement) (Wales) Order 2018)

(external link); and

 Appeals against decisions of the SuDS approving body (The Sustainable

Drainage (Appeals) (Wales) Regulations 2018) (external link).

Status of this guidance

1.3 This document is statutory guidance to which local authorities must

have regard in relation to their SuDS approving body function which is

required under paragraph 6 of Schedule 3 to the 2010 Act. It should be

read in conjunction with Schedule 3 to the 2010 Act and the statutory

instruments listed above.

1.4 The guidance is issued by virtue of the Welsh Ministers powers under;

 Paragraph 15 of Schedule 3 to the2010 Act, which provides for guidance

to be issued about the process of seeking and obtaining approval, and

May 2017 consultation on the implementation of sustainable drainage systems on new

developments, available at; https://consultations.gov.wales/consultations/implementation-

sustainable-drainage-systems-new-developments

November 2017 consultation on the implementation of sustainable drainage systems on

new developments, available at;

https://consultations.gov.wales/consultations/implementation-sustainable-drainage-systems-

new-developments-draft-regulations-and

November 2017 Written Statement by the Welsh Government, available at;

http://gov.wales/about/cabinet/cabinetstatements/2017/sustainabledrainage/?lang=en

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for all other aspects contained in this guidance which do not come under

this provision;

 Section 58A of the Government of Wales Act 2006, which transfers

executive functions to the Welsh Ministers to do things which are

conducive or incidental to their other functions.

1.5 Under Schedule 3 to the 2010 Act, local authorities as the SuDS Approving

Body (the SAB) have a duty to approve SuDS which follow the national

statutory Standards for SuDS (SuDS Standards). With the exception of single

curtilage sites, the SAB also has a duty to adopt the system.

1.6 The legislation and this guidance establish an approvals and adoption

mechanism. The guidance provided in this document has been developed

with the support of and in close consultation with the Welsh Local

Government Association (WLGA) and the SuDS Advisory Group (an external

stakeholder forum composed of key stakeholders including developers, local

authorities, the WLGA and water utilities). It is expected that SABs will provide

further supplementary guidance to build on the guidance provided in this

document and support the delivery of the approval and adoption role.

1.7 Where this guidance refers to “the Government” or “ministers” it means the

Welsh Government and the Welsh Ministers.

Post implementation review

1.8 It is the Welsh Government’s intention to undertake a post implementation

review of the statutory instruments and this guidance, to be started within at

least two years following implementation on 7

January 2019. This will involve

inviting stakeholders, including SABs, to submit evidence to the Welsh

Government on key aspects of the regulations to inform the review.

Why we need mandatory SuDS on new developments

1.9 Surface water flooding is a serious problem, identified in our National Strategy

for Flood and Coastal Erosion Risk Management

as a major cause of

flooding of homes. The impact on citizens, communities and cost to the Welsh

economy is significant. The risk of flooding is on the rise owing to climate

change and urbanisation. In particular, local flooding, due to the overloading

of volume constrained drainage systems and sewers, is of increasing

concern. Under the terms of the Flood and Water Management Act 2010, the

Lead Local Flood Authorities (LLFAs) are responsible for managing local flood

risk which includes that from surface water.

1.10 Surface water runoff can be an important source of diffuse pollution. The

potential damage to our groundwater and rivers from polluted surface water

runoff increases with each new development.

National Strategy for Flood and Coastal Erosion Risk Management, available at;

http://gov.wales/docs/desh/publications/120412nssummaryen.pdf

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1.11 In addition, uncertainty over the design and adoption of surface water

drainage for new developments can hamper development. There are also lost

opportunity costs where the drainage design fails to deliver multiple benefits

(for example recreation and amenity) beyond simple surface water

management.

1.12 Schedule 3 to the 2010 Act requires Ministers to publish national standards

for sustainable drainage on new developments. It also requires surface water

drainage systems to be approved by the SAB before construction work with

drainage implications may begin for most developments. When considering

an application, the SAB needs to satisfy itself that the drainage system meets

the SuDS Standards. If the conditions specified in paragraph 17 of Schedule

3 are met, the SAB is required to adopt and maintain approved SuDS that

service more than one property, either at the request of the developer or on

the SAB’s own initiative

1.13 SABs should actively encourage developers to request adoption once eligible

schemes have been completed. Proliferation of unadopted surface water

drainage systems and poor management options will only increase the risk of

flooding in the long-term impacting on residents.

1.14 The responsibility for delivery of the SAB functions rests with the Local

Authorities in Wales alongside their duties as LLFA. In delivering this duty, the

Welsh Government anticipates a high level of co-operation within councils,

encompassing highways and planning functions. In order to promote

consistency across Wales and to ensure that an effective and efficient service

is delivered, co-operation between councils to make best use of resources will

also be key.

1.15 Our policy objective is to deliver effective, multi-purpose SuDS in new

developments that will be maintained and remain effective for the life-

time of the developments they serve. To deliver this, it is vital that we

enable partnership working between those involved in the design,

construction and maintenance of the SuDS.

1.16 For every new development, the Welsh Ministers expect SABs to seek an

overall reduction in, or significant attenuation of, surface water volumes

reaching public sewers and combined systems as part of the aim of

‘Ensuring the stability and durability of drainage systems’

in a

sustainable way.

See paragraph 23(2) of Schedule 3 to the2010 Act.

See paragraph 2(e) of Schedule 3 to the 2010 Act.

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Section 2 : Implementation

The main provisions of Schedule 3 to the Flood and Water

Management Act 2010

2.1 The key provisions relating to sustainable drainage in Schedule 3 to the 2010

Act make the use of sustainable drainage in all new developments (including

re-developments) with drainage implications mandatory and provide a

mechanism for their adoption and maintenance.

2.2 The 2010 Act requires Ministers to publish Standards for sustainable

drainage.

2.3 In order to deliver the aims of the 2010 Act, it:

 makes unitary authorities in Wales the responsible SuDS approving

body to approve new drainage systems before construction can

commence.

 requires the SAB, to adopt drainage systems serving multiple properties,

making it responsible for ensuring a surface water drainage system

adopted by the SAB is maintained in accordance with the mandatory

National Standards.

 amends the Water Industry Act 1991 to make the right to connect

surface water to public sewers conditional on the drainage system being

approved by the SAB as meeting the mandatory National Standards.

 requires Ministers to make secondary legislation providing for a right of

appeal against approval and adoption decisions by the SAB;

enforcement of the requirement for approval; and for approval fees

 enables secondary legislation to be made relating to various matters

concerning approval and adoption.

 establishes the role of statutory consultees in the approval process.

2.4 A flow chart of the SuDS application process with SAB input is attached at

Annex 1.

Sustainable Drainage

2.5 Paragraph 2 of Schedule 3 to the 2010 Act defines sustainable drainage as

managing rainwater with the aim of:

 Reducing damage from flooding,

 Improving water quality,

 Protecting and improving the environment,

 Protecting health and safety, and

 Ensuring the stability and durability of drainage systems.

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Statutory Standards for SuDS - principles, standards and

guidance

2.6 The aim of the Statutory SuDS Standards is to provide a framework in the

form of principles and standards, together with guidance for ensuring good

quality SuDS on new developments which will stand the test of time. On

considering an application for approval the SAB must

 grant it, if satisfied that the drainage system if constructed as proposed

will comply with the Statutory SuDS Standards; or

 refuse it if not satisfied.

2.7 In preparation for meeting the requirement on the Ministers to publish

statutory SuDS Standards for sustainable drainage, we consulted on a set of

voluntary standards in 2015, along with related guidance. These voluntary

standards were published in January 2016.

2.8 Further consultation on the Statutory SuDS Standards has been undertaken

in developing our SuDS policy and some minor amendments have been made

to the original voluntary standards.

2.9 The approved statutory SuDS Standards are published on the Welsh

Government’s web site as the Welsh Ministers’ Statutory Standards for

Sustainable Drainage Systems (external link)

. Unless a development is

exempt from the SAB approval requirement (see section 2 of this guidance),

the applicant must demonstrate compliance with the statutory SuDS

Standards.

2.10 The statutory SuDS Standards contain:

 A set of Principles, which in order to obtain SAB approval must be

applied in the design of any surface water drainage scheme, and

 Six standards, numbered S1 to S6 which deal in turn with:

- S1 - Runoff destination

- S2 - Hydraulic control

- S3 - Water quality

- S4 - Amenity

- S5 - Biodiversity

- S6 - Construction, operation and maintenance

2.11 Each of the Statutory SuDS Standards is numbered and presented in the

document in a grey box. For example:

See paragraph 11(1) of Schedule 3 to the 2010 Act.

The Statutory SuDS Standards for designing, constructing, operating and maintaining

surface water drainage systems, are available at;

https://gov.wales/topics/environmentcountryside/epq/flooding/drainage/?lang=en

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S3 Surface water quality management

Surface water runoff should be treated to prevent negative impacts on the

receiving water quality and/or protect downstream drainage systems,

including sewers.

2.12 The Statutory SuDS Standards are followed by Welsh Ministers’ Guidance in

paragraphs prefixed with a G. For example:

2.13 The Guidance in the Statutory SuDS Standards is to provide clarification on

the intentions of the Standards. There are a wide range of techniques which

can be used in designing a sustainable drainage scheme for a development,

and applicants should be prepared to demonstrate how they have balanced

both the Principles and the Standards with site specific constraints.

2.14 For details of the range of available solutions, designers should consider the

comprehensive SuDS Manual published by CIRIA

2.15 It is important to note that no specific drainage technique is ruled out by the

statutory SuDS Standards. They do, though emphasise the preference for

solutions close to source and on the surface which deliver multiple benefits

through both the principles and the hierarchy within S1. This aligns with the

duties

on public bodies in Wales for enhancing biodiversity and for

improving the environmental, social, economic and cultural well-being of

Wales.

2.16 The statutory SuDS Standards encourage SuDS techniques such as

wetlands, swales, ponds and vegetated systems which can help increase

access to green spaces and provide community facilities to bring people

together. This is highlighted as a “best buy” to prevent mental ill health and

improve mental well-being by Public Health Wales. Studies also suggest that

people living closer to good quality green space are more likely to have higher

levels of physical activity, are more likely to use the space and to do so more

frequently.

The CIRIA SuDS Manual, is available at;

https://www.ciria.org/Resources/Free_publications/SuDS_manual_C753.aspx

See the Summary section of this guidance.

Guidance on Standard S3 - Water Quality

G3.1 Runoff from roads, commercial and other urban environments can, in particular,

contain grits, sediments, oils and PAHs, metals, and dissolved salts – each of which

has the potential to cause pollution of receiving surface water or groundwater. SuDS

can be effective at reducing a wide range of these pollutants through enabling

sedimentation, filtration and a range of photolytic, chemical and biological processes.

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The design and delivery of multiple benefits SuDS

2.17 The definition of sustainable drainage laid out in legislation and the statutory

standards for sustainable drainage both highlight that SuDS need to deliver

more than just management of surface water volume. This section aims to

facilitate and guide the SAB and others in identifying how and if a SuDS

proposal will deliver multiple benefits

At the strategic planning level

2.18 It is important that strategic planning provides for SuDS, ensuring space

within development so that surface features which are more likely to provide

multiple benefits can be accommodated and SuDS do not have to be

“squeezed in” and compromises made.

2.19 Where very large sites are identified for development within Local

Development Plans which are likely to involve different companies developing

different parcels of land within the same site, the best interests of the future

residents (as well as the SAB) will be served if SuDS are designed with the

whole site in mind, rather than discrete parcels of land.

2.20 Understanding where SuDS can deliver multiple benefits at the strategic level

is important for understanding the impact of development and SuDS at a

landscape and catchment scale and mitigating any cumulative impacts of

development.

2.21 An opportunity mapping exercise by SABs could help identify the best location

and opportunities for SuDS. For example, mapping development,

infrastructure, topography, green space, flood risk, water quality, protected

habitats and using the information to identify where there are greatest

opportunities for delivering multiple benefits. If there are specific problems in

an area, then these can be identified and SuDS can be designed to mitigate

these. Early evaluation of the “right” location may save money and could be

seen as enabling resilient development to proceed, preventing SuDS from

being cited as an obstacle to development.

Identifying multi-beneficial SuDS in applications

2.22 There are a number of tools available to developers to better understand how

to design and deliver multi beneficial SuDS. These include the CIRIA Benefits

for SuDS tool

and the RSPB/WWT guidance

on designing SuDS for

people and wildlife

See paragraph 2 of Schedule 3 to the 2010 Act.

The CIRIA Benefits for SuDS tool, is available at;

https://www.ciria.org/Resources/Free_publications/New-tool-assesses-the-benefits-of-

SuDS.aspx

The RSPB/WWT Guidance on designing SuDS for people and wildlife, is available at;

http://www.wwt.org.uk/uploads/documents/1400927422_Sustainabledrainagesystemsguide.p

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2.23 In identifying the multi benefit options available in a development it is

important to include designing for multiple benefits from the outset. This

includes consulting with relevant local expertise, such as catchment and

coastal partnerships, local wildlife trusts and ecologists. The latter is

extremely important, as many local authorities do not have in-house expertise.

The best results will be obtained if this is initially undertaken at the master

planning stage, if there is one, or otherwise at the pre-application stage.

2.24 Multi-benefit SuDS can be cost-beneficial in even the most constrained sites if

considered from the outset with the right experts at the table.

2.25 In assessing whether multiple benefits have been effectively integrated into a

development, the SAB should consider whether the following have been

assessed and included appropriately in the design of the SuDS:

 ecological and hydrological needs within the site and surrounding area

 practical opportunities offered by existing water features and land forms

 water quality issues

 the needs of the site users and surrounding community

 strategic green infrastructure needs

 opportunities to create or restore habitat

 opportunities to combine SuDS with landscaping, recreation, active

travel, and play provision.

2.26 If opportunities for multiple benefits have not been taken, a robust argument

for the decision must be made. Criteria for this could be developed by the

SAB to ensure a fair and standard approach and ensure decision making is

transparent. These criteria should be developed using in-house expertise

such as biodiversity officers and in consultation with relevant stakeholders

such as Natural Resources Wales. Importantly, even with infiltration

constraints, a wide range of SuDS such as green roofs and rain garden boxes

can still be used which can deliver for multiple benefits. Infiltration constraints

are not a valid reason alone for a development not to incorporate multi-

beneficial SuDS.

2.27 Cost benefit analysis should include full assessment of social and

environmental costs and benefits. It should be considered alongside the need

for SuDS to deliver other standards recommended in legislation, such as the

accessible green space standards in Planning Policy Wales Technical Advice

Note 16 on Sport, Recreation and Open Space

. This is especially important

for understanding viability. We advise that a standard approach to cost benefit

analysis is promoted by SABs to place all developers on a level playing field

and to make it easier to understand where shortcuts may be being taken. All

cost benefit analysis will have gaps and it is important to understand the

specific weaknesses in valuing certain costs or benefits in any standard

approach adopted. This is acceptable as long as those weaknesses are

factored into decision making. The Organisation for Economic Development

Planning Policy Wales Technical Advice Note 16 on Sport, Recreation and Open Space,

available at; https://gov.wales/topics/planning/policy/tans/tan16e/?lang=en

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and Co-operation (OECD) has developed significant literature on cost benefit

analysis

Ensuring longevity of multiple benefits

2.28 Proposals for a maintenance plan should be submitted by the developer with

the application to the SAB for approval

. It is often the case that surface

features and those providing multiple benefits are simpler to manage than

traditional drainage options and below surface features. However, they do

need to be managed to ensure that they continue to function properly; the

delivery of multiple benefits continues; and that compliance with national

standards is maintained. As such we recommend that the maintenance plan

includes proposals to manage the SuDS in a way which supports the practical

ongoing delivery of multiple benefits.

2.29 For example maintaining various levels of sward height for biodiversity or

using vegetation rather than fencing to avoid accidents. The maintenance

plan must make clear the multiple benefits provided by the SuDS and how to

best manage them in order to facilitate maintenance.

2.30 Adoption and funding – Any maintenance plan should include objectives

around maintaining the multiple benefits provided by the SuDS (as detailed in

the maintenance plan). Maintenance plans should also include an agreement

for adequate biosecurity measures to avoid spread of invasive non-native

species. Funding needs to account for maintaining multiple benefits.

2.31 Monitoring and reporting – any monitoring and reporting of the maintenance

plan overseen by the SAB should show that the multiple benefits laid out in

the maintenance plan are being delivered. The SAB may wish to agree with

the developer an appropriate monitoring and reporting process.

2.32 Community engagement – it is important that the community understands the

multiple benefits that the SuDS provide in order to gain community buy in to

the schemes. If a community feels proud of its green spaces they are more

likely to succeed in delivering multiple benefits for the long term. Possible

approaches include using signs to explain how the system works and

involving the local school/community group in designing, planting or even

maintaining the scheme.

Engaging communities and householders

2.33 The move to a requirement for the SuDS approach to be used for new

developments will change the appearance of these developments and bring

people into closer contact with their local environment. This “reconnection” of

people with water is an important outcome of implementing SuDS, but will

require the development of a common approach for communicating about

SuDS and their benefits.

The OECD report on Cost-Benefit Analysis and the Environment, is available at;

http://www.oecd.org/env/tools-evaluation/cost-

benefitanalysisandtheenvironmentrecentdevelopments.htm

See the Principles at Section 2 to the Statutory SuDS Standards.

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2.34 The Welsh Government will work with SABs and other interested groups to

develop suitable resources for communities and householders in particular.

2.35 It will also be important for those with single premises sites, where the system

is not adopted, to understand their responsibilities for upkeep and the

consequences of failing to undertake appropriate maintenance. We propose

to work with stakeholder groups to develop suitable resources which can be

shared across Wales.

Transitional arrangements for developments in progress

2.36 We recognise that at the time of commencing Schedule 3 to the2010 Act

some developments will be at an advanced stage of planning. The aim of the

transitional arrangements

is to avoid incurring additional work for

developments which are already in progress.

2.37 The requirement for SAB approval and adoption agreements for surface water

drainage applies only to new developments and is not retrospective. Existing

sites and developments with planning permission granted or deemed to be

granted (unless subject to reserved matters – see below), or for which a valid

application had been received but not determined by 7 January 2019 will not

be required to apply for SAB approval.

2.38 Permitted developments of more than 100 square meters which are notified

after 7 January 2019 will require SAB approval.

2.39 SAB approval will be required if the planning permission was granted subject

to a condition as to a reserved matter and an application for approval of the

reserved matter is not made before 7 January 2020.

2.40 Whilst these developments with planning approval may not require SAB

approval and adoption, we believe the benefits of the new process mean that

it would be advantageous for both developers and the SAB to consider

voluntary agreements for these sites.

Exemptions from the need for SAB approval

2.41 SAB approval is not required for:

 Permitted development covering an area of land under 100 square

metres

 Developments with drainage implications of a single dwelling and the

area of land covered by the construction work is less than 100 square

metres, or

In the case of any other type of construction work, the area of land covered

See Article 5 of the Sustainable Drainage (Approval and Adoption) (Wales) Order 2018.

See Article 4 of the Sustainable Drainage (Approval and Adoption) (wales) Order 2018.

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is less than 100 square metres

2.42 Schedule 3 to the 2010 Act exempts from the need for SAB approval work

requiring development consent as a nationally significant infrastructure

project

2.43 The 2010 Act allows Welsh Ministers to make orders about further

exemptions

. The following construction works are exempt from the need for

SAB Approval

 construction work carried out by an internal drainage board in exercise of

its functions under the Land Drainage Act 1991;

 construction work carried out for the purpose of, or in connection with,

the construction of—

(i) a road for which the Welsh Ministers are the highway authority, or

(ii) a railway by Network Rail.

SuDS subject to SAB approval but not adoption

2.44 Subject to the exemptions from the need for SAB approval, the SAB approves

but does not adopt SuDS if the scheme:

 Serves a single property

 Is a publically maintained road to which section 41 of the Highways Act

1980 applies

Linking with existing processes - Planning, Highways and Parks

departments

2.45 It is important that however the SAB duty is delivered, those responsible for its

delivery work closely with planning, highways, parks and other relevant

colleagues within each Local Authority. SAB approval and adoption duties are

technical approval processes akin to Building Regulations technical approval

rather than planning decision making.

2.46 Whilst Schedule 3 to the 2010 Act allows for combined planning and SUDS

applications to be made, it is important that the separation between the SAB

approval and planning processes is clearly understood. Neither process is

dependent on the outcome of the other. For example, a development proposal

See Article 6 of the Sustainable Drainage (Approval and Adoption) (Wales) Order 2018.

See paragraph 7(3) of Schedule 3 to the 2010 Act, this exempts developments requiring

development consent under Section 31 of the Planning Act 2008.

See paragraph 7 (4)(b) of Schedule 3 to the 2010 Act.

See Article 3 of the Sustainable Drainage (Approval and Adoption) (Wales) Order 2018.

See paragraph 18 of Schedule 3 to the 2010 Act and for the definition of single property

exemption Regulation 9 of the Sustainable Drainage (Approval and Adoption Procedure)

(Wales) Regulations 2018.

See paragraph 19 of Schedule 3 to the 2010 Act.

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may receive planning approval but not meet the requirements of the SAB

process and vice versa.

2.47 Drainage should be considered at the earliest stages of site design to

influence the layout of roads, building and open spaces.

2.48 Potential purchasers of new properties, including those buying ‘off plan’, will

need to know whether the sewers, highway, roads and SuDS will be adopted.

Local authorities will need to be able to respond to such routine inquiries.

Planning

2.49 Opportunities for SuDS will be maximised through cooperative working

between the SAB and Local Planning Authorities. Developers should

demonstrate compliance with the statutory SuDS Standards and local policy

when submitting planning applications.

2.50 There is likely to be a continuing role for planning permission to be granted

subject to section 106 conditions under the Town and Country Planning Act

1990 designed to ensure adequate drainage arrangements for surface and

foul water are in place.

Highway Development

2.51 Opportunities for SuDS will be maximised through cooperative working

between the SAB and Highway Authorities. Highways planned by new

developments are required to comply with the statutory SuDS Standards

(unless exempt). The legislation requires Highway Authorities to consider for

adoption of SuDS approved by the SAB. Where a Highway Authority adopts a

road maintainable at public expense they must act in accordance with the

approved drainage design, including the maintenance regime, in compliance

with the statutory SuDS Standards. Highway adoption policies should be

reviewed to reflect this.

2.52 The SAB is exempt from adopting any part of a sustainable drainage system

for which the highway authority is already responsible or for which it could be

responsible for maintenance.

Public open space

2.53 Opportunities for SuDS will be maximised through cooperative working

between the SAB and Local Authority departments with responsibility for

parks, recreation, green space, biodiversity, and countryside. The statutory

SuDS Standards encourage good quality SuDS (such as wetlands, swales,

ponds and vegetated SuDS) which can help enhance access to green

spaces.

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Setting SAB fees and service standards

Ensuring SAB fees are fair and represent good value for money

2.54 Setting fees for SABs has been considered as part of Welsh Government

consultations and workshops held over the course of 2017 and 2018 and in

discussion with the SuDS Advisory Group (an external stakeholder group

representative of developers, the WLGA, local authorities and other key

stakeholders).

Service Standards

2.55 Taking into consideration issues raised during consultation, our objective is to

ensure that charges are fair to both developers and local authorities. Local

authorities must ensure overall charges for their services represent good

value for money. In order for this to be achieved we expect SABs to develop

service standards and to implement a mechanism for recording and reporting

about actual costs for services delivered.

2.56 Local authorities will be asked to undertake annual reporting on the delivery

of their SAB function to the Welsh Government. This will provide the basis for

monitoring overall service standards and setting future fees.

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Section 3 : SuDS Approval

A summary of the SuDS application process is attached at Annex 1.

Before an application for SAB approval is made

Shaping new development

3.1 Implementing SuDS on new developments requires a fundamental change in

how drainage is considered.

3.2 SuDS are intended to maximise the opportunities and benefits that can be

provided by the effective management of surface water. This can only be

achieved when the principles of SuDS are considered fundamental to the

design practice right from the start of the development process, at the

conceptual stage.

3.3 The SuDS approach to surface water management will direct the

development process and shape the layout of new developments around site

drainage. Implementing effective SuDS on a development site will require a

joined-up approach by the local authority across multiple disciplines, and early

involvement of drainage/flood risk engineers, landscape architects, highways

engineers, biodiversity and amenity staff, building control and planners is

considered key to secure quality effective SuDS.

3.4 Those planning any surface water drainage system, including SuDS schemes

need to take account of a range of legislation. Further guidance on the links

between SuDS and other relevant legislation is provided in the Statutory

SuDS Standards under the section on Sustainable Drainage - the Regulatory

Framework.

Early engagement

3.5 The SAB should work with planners, highways departments and others, such

as sewerage undertakers, to encourage pre-application discussion in advance

of formal applications being made. There should be an emphasis on

partnership working to bring together all those involved in the process at an

early stage of site development. This will be critical to achieving the necessary

planning, SAB and other approvals and to successful implementation of

effective and compliant SuDS.

3.6 Pre-application discussions involving all interested parties provide an

opportunity to resolve potential conflicting priorities, to consider downstream

issues and the potential for mitigation of problems elsewhere. They may

influence proposals to comply with national standards and local policy. Pre-

application discussion can help ensure the applicant is fully aware of

requirements at the outset, thereby limiting delays to approval and reducing

cost in the long term. It may also enable the SAB to use its opportunity maps

to help developers identify potential options.

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3.7 The SAB should encourage developers to engage stakeholders at the earliest

opportunity in the pre-application stages; advice should be sought from the

Local Authority as SAB, Local Planning Authority (LPA), Lead Local Flood

Authority (LLFA) and from relevant parties such as statutory consultees.

Although some bodies may charge for pre-application advice, we consider it is

worth investing at this stage in order to prevent later delays.

3.8 Early engagement with sewerage undertakers will enable developers to take a

holistic view of the design of foul and surface water drainage systems. Such

discussions are particularly important if the surface water will enter its network

at any stage. If the developer wants to connect a surface water system to the

public sewer, it must make that explicit in its proposals for SAB approval

3.9 The extent of advice and support that developers will need may vary. In

particular, smaller developers may be less familiar with SuDS concepts and

are likely to have less access to expert advice. They may be reluctant to seek

early engagement. It may be appropriate for SABs to produce simple

guidance suitable for such infrequent, small scale developers.

3.10 The local authority (which is also the SAB) may choose to use powers

available to them under other legislation

to seek to recover costs which they

incur for undertaking SAB functions but which are not covered by the

application fee, such as pre-application advice.

Consulting with statutory and non-statutory consultees

3.11 The SAB is required to consult with specified bodies where a SuDS

application may impact upon that consultee

3.12 The consultees are:

 Natural Resources Wales

 any Sewerage Undertaker whose public sewer may be impacted,

 Canal and River Trust/Glandŵr Cymru, and

 the relevant Highway Authority.

3.13 These bodies were given a statutory role in recognition of the potential impact

of surface water drainage discharges on either their assets or their regulatory

interests. To avoid undue delay in the approvals process and for the purposes

of the consultation the SAB will want to consider the information needs of

statutory consultees and how to best to share the information.

3.14 The comments of statutory consultees should be regarded as a material

consideration by the SAB. For example, if some or all of the flows, SuDS are

See paragraph 16 of Schedule 3 to the 2010 Act, which adds a new section 106A

(sustainable drainage) to the Water Industry Act 1991.

Such as for example Section 93 to the Local Government Act 2003.

See paragraph 11 (3) of Schedule 3 to the 2010 Act.

Under Section 72 of the Land Drainage Act 1991, Internal Drainage Boards come under the

responsibility of Natural Resources Wales.

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likely to enter a sewerage undertaker’s network, its views must be carefully

considered by the SAB and mutually acceptable arrangements sought.

3.15 We expect the SAB to establish good relationships with statutory consultees to

ensure that the consultation process works effectively. Consultees may wish

to identify matters it would expect to be consulted on and establish criteria in

relation to the potential impact, location, destination and size of applications to

prioritise those most likely to be of concern to their interests. This would allow

them to have a standard response for many applications and site specific

responses where needed.

3.16 Where the SuDS application may have a direct or indirect impact on the

interests of the statutory consultee we expect as minimum that the SAB

should provide the following information to a statutory consultee for the

purposes of or in connection with the consultation—

 a copy of the application form relating to a relevant application,

 the reference number allocated by the SAB to the application,

 any plans or drawings in connection with the relevant application;

 any proposals concerning where and when the application may be

inspected,

 any reports and or supporting information in connection with the

relevant application which is issued to the SAB, and

 any other information the SAB considers appropriate.

3.16 Where a site-specific response is required, statutory consultees should

provide this within the prescribed three week timescale

or seek an agreed

extension The SAB may disregard any comments received after the agreed

date.

3.17 Statutory consultees are also given the status of interested parties for the

purposes of appeals

. This is intended to provide for statutory consultees to

be told of the appeal and to be given the opportunity to submit representations

to be taken into account in its determination by ministers.

3.18 The SAB may also wish to undertake additional non-statutory consultation,

where appropriate. There is no regulatory requirement for non-statutory

consultation, however to avoid delay any non-statutory consultation should be

undertaken within the time-frame permitted for statutory consultation.

Making an application to the SAB for approval – requirements,

determination, conditions and the application form

3.19 An application for approval of a drainage scheme may be made to the SAB

separately from or alongside a planning application. The planning and SAB

See Regulation 4 of the Sustainable Drainage (Approval and Adoption Procedure) (Wales)

Regulations 2018.

See Regulation 9(3)(d) of the Sustainable Drainage (Appeals) (Wales) Regulations 2018

and Article 17(3)(g) of the Sustainable Drainage (Enforcement) (Wales) Order 2018.

20 | P a g e

approvals are independent systems and there may be circumstances where

separate applications are appropriate, for example for permitted

developments, where planning approval is not required but SAB approval is.

The legislation is flexible and designed to allow both SAB only applications

and applications for both in parallel.

Validly made applications

3.20 It is open to the SAB to determine what constitutes a valid SuDS application

for SAB approval

. We suggest a valid SuDS application to the SAB should

at least be accompanied by:

 a plan specifying the construction area and the extent of the drainage

system, drawn to an identified scale and showing the direction of North,

 information on how the construction work will comply with the Statutory

SuDS Standards (this information may assist the SAB with its

determination of the application in accordance with provisions in

legislation

 a statement on whether or not the application relates to a development

that is the subject of an EIA

application (if subject to an EIA, the time

limit for SAB determination of the application for approval will be 12

weeks, instead of 7 weeks as for all other applications

 the appropriate application fee

 Additionally, the Statutory SuDS Standards contain a principle

so that

SuDS applications should be submitted with proposals for a

maintenance plan and the means of funding for the scheme for its

design life.

3.21 If the SAB application is combined with a planning application, as long as the

plan accompanying the former shows the extent of the drainage system, a

separate plan should not be necessary.

3.22 In addition to the above provisions, the SAB may set any other specific

requirements as to the form and any information it requires for applications for

approval

The SuDS application form

3.23 With effect from 7 January 2019, the Planning Application Service Wales

website will contain a link to the SAB application form for SuDS approval.

See paragraph 9(2) and 10(2) of Schedule 3 to the 2010 Act.

See paragraphs 5(3) and 11(1) of Schedule 3 to the 2010 Act.

Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations

2017.

See Regulation 5 of the Sustainable Drainage (Approval and Adoption Procedure) (Wales)

Regulations 2018.

See Regulations 3, 4, 5, 6, 7 and 9 of the Sustainable Drainage (Application for Approval

Fees) (Wales) Regulations 2018.

See the Statutory SuDS Standards under the section on Principles.

See paragraphs 9(2)(a) and (b) and 10(2) of Schedule 3 to the 2010 Act.

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Determination of applications

3.24 If for any reason the SAB application is not valid, the SAB must notify the

applicant as soon as practicable, explaining why the application has been

rejected and return the fee

. In practice the SAB is encouraged to contact the

applicant in the first instance to ask for any missing information to be

submitted, and to agree an extension to the determination deadline.

3.25 The SAB has 7 weeks to determine applications other than those requiring an

Environmental Impact Assessment, in which case it has 12 weeks

. An

extension of the timescale can be mutually agreed if needed, but a failure to

determine the application within the relevant timescale will result in the

application being deemed to have been refused.

3.26 It is important to note that SAB approval of the SuDS application for a

development proposal is independent of the planning approval process.

Timescales for SAB approval prescribed in regulations are aimed at ensuring

the SuDS approval process does not impact on overall development

timescales.

Approval subject to conditions

3.27 It is open to the SAB to grant approval subject to conditions

. In particular,

but not exclusively, conditions could relate to:

 construction of the drainage system,

 technical matters such as discharge rate,

 modifications of a proposed drainage plan,

 associated fees and/or payment of a fee in relation to work done by the

SAB in connection with approval,

 securing agreements for non-performance bonds,

 the maintenance plan and the means of funding for the scheme for its

design life,

 testing periods for the SuDS following construction,

 inspections by the SAB before, during and after construction (based on

the fee for inspection set in Regulations

3.28 Conditions should only be imposed where they are:

 necessary,

 relevant to the SAB approval and adoption process,

The Planning Application Service Wales, is available at; https://beta.gov.wales/apply-

planning-permission

See Regulation 3 of the Sustainable Drainage (Approval and Adoption Procedure) (Wales)

Regulations 2018.

See Regulation 5 of the Sustainable Drainage (Approval and Adoption Procedure) (Wales)

Regulations 2018.

See paragraph 11(2) of Schedule 3 to the 2010 Act.

See Regulation 8 of the Sustainable Drainage (Application for Approval Fees) (Wales)

Regulations 2018.

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 relevant to the development to be approved,

 enforceable,

 precise, and

 reasonable in all other aspects.

Conditions should not duplicate requirements of other legislation.

3.29 A breach of a condition of approval can be enforced under the sustainable

drainage enforcement regime

Notice of approval decisions

3.30 The SAB must notify the applicant, LPA and statutory consultees of the

decision as soon as reasonably practical after determining an application for

approval

. If the application is refused, the applicant may appeal the decision

(see section 5 of this guidance)

Stipulating what inspections will be required

3.31 The SAB may stipulate in conditions of approval what inspections of the SuDS

schemes will be required to ensure they are built to the appropriate standard

with the specified or suitable materials

. The SAB can recover the costs of

these inspections from the developer

3.32 The SAB and the developer should establish the need for inspections and

their timing and frequency, as part of the approval process. This will provide a

degree of certainty over potential costs for both developer and SAB.

Considering SAB agreements

Is an agreement needed to support adoption?

3.33 SuDS applications should be accompanied by proposals for a maintenance

plan and the means of funding for the scheme for its design life. As set out

under the principles section of the Statutory SuDS Standards, this will enable

applicants to demonstrate how the SuDS scheme will perform safely,

reliably and effectively over the design life of the development, taking

into account the need for reasonable levels of maintenance.

3.34 As part of the approval for the construction of a sustainable drainage system,

the SAB may require a legal agreement to be entered, to ensure all works

function for the duration of the SuDS design life and for the life-time of the

development in accordance with SAB approval, including any conditions

The Sustainable Drainage (Enforcement) (Wales) Order 2018.

See paragraph 11(4) to the 2010 Act.

See paragraph 11(2) of Schedule 3 to the 2010 Act.

See Regulation 8 of the Sustainable Drainage (Application for Approval Fees) (Wales)

Regulations 2018.

See paragraph 11 (2) of Schedule 3 to the 2010 Act.

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The agreement may be entered into whether or not the works are to be

adopted by the SAB in accordance with the regulatory criteria for adoption.

3.35 By way of example, the legal agreement may need to cover:

 the transfer of land,

 easements,

 access.

3.36 When an application is submitted, the SAB and developer should also discuss

a legal agreement as a formal means of setting out any detailed

arrangements concerning; the maintenance of the sustainable drainage

system for the life-time of the development, the means of funding for the

SuDS scheme for its design life (including any commuted sum or

maintenance funding) . In relation to securing agreements to ensure the SuDS

remains compliant for the design life of the development, the SAB may wish to

rely on existing powers available to local authorities under local government

legislation

Deciding whether a Non Performance Bond is required

3.37 The SAB may require the deposit of a non-performance bond (the bond) as a

condition of approval, so that SuDS approval will only take effect if and when

the developer provides the bond

. The kind and value of the bond is to be

specified by the SAB in the condition

3.38 The value of the bond may be set by the SAB at any level up to but not

exceeding the best estimate of the overall cost of the works required to

ensure the drainage system accords with approved proposals. The best

estimate of overall cost is the maximum value for the bond

3.39 Pre-application discussions between the SAB and the developer are a vital

part of the process. These will provide an early opportunity to consider SAB

conditions of approval and to resolve any potential disagreements. Appeals

against decisions by the SAB about a condition

should only ever be

considered a last resort.

3.40 The bond will be payable to the SAB if it certifies

that the drainage system:

 has been constructed in a manner that is not in accordance with the

approved proposals; or

 is unlikely to be completed.

See for example; Section 106 of the Town and Country Planning Act 1990, Section 2 of the

Local Government Act 2000, and Section 111 of the Local Government Act 1972.

See paragraph 11 (2)(b) of Schedule 3 to the 2010 Act.

See paragraph 12 (1) of Schedule 3 to the 2010 Act.

See paragraph 12 (5) of Schedule 3 to the 2010 Act.

See paragraph 25 (1) (a) of Schedule 3 to the 2010 Act.

See paragraph 12 (2) of Schedule 3 to the 2010 Act.

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Purpose of the bond

3.41 The bond is intended both to underpin and to facilitate the provision of

sustainable drainage on new development. It provides a vital safeguard to

ensure the SAB has the means to remediate poorly constructed or incomplete

SUDS. The bond should also incentivise applicants to complete works in a

satisfactory manner to avoid the SAB draw on the bond.

3.42 The SAB may decide whether a bond is necessary. Having a bond may in

particular ensure:

 local communities, businesses and occupiers are protected from flood

risk resulting from new development,

 the downstream environment will be protected from the consequences of

failure to complete sustainable drainage systems to the appropriate

standards,

 the cost of rectifying any construction faults does not fall to the public

purse,

 the SAB is not obliged to adopt poorly constructed or incomplete SuDS

without having the financial means of undertaking repair or completion,

 both the SAB and the developer have a common understanding about

the level of financial or related guarantee needed to secure sustainable

drainage systems.

Calculating the value of the bond

3.43 The value of the bond must not exceed the SABs best estimate of the

maximum likely cost of work required to ensure that the drainage system

accords with approved proposals.

3.44 Neither should the value of the bond be set any higher than is needed to fulfil

its purpose. The aim of the bond is to facilitate development, the SAB must

ensure the value of the bond is reasonable and justifiable for the developer.

3.45 Estimates of costs are expected to be subject to detailed discussions between

the SAB and the developer before the bond value or the manner of its release

is set as a condition of SAB approval.

3.46 The costs of SuDS construction should be based on the most up-to-date

information available. Where possible, to ensure consistency for developers

the SAB should calculate the bond using industry standard guidance, where

this is available. Where this is not possible, the SAB will need to make the

best estimate of the cost implications for the non-performance bond. SABs

are expected over time to make available a body of reliable data of the costs

of SuDS elements.

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3.47 The evidence required to calculate the bond value should normally be

provided by the developer as part of the SuDS application. The SAB may

request this or any other relevant information to accompany the application

3.48 The starting point for calculating the value of the bond is the likely cost of the

works needed for the construction of the SuDS proposals as approved. The

SuDS application should therefore include:

 sufficient detail about the design and dimensions of the drainage system

to allow the SAB to quantify each of the elements to be constructed, and

 the unit cost for each element of the SuDS.

This information should enable the SAB to calculate the cost of construction

for each element of the SuDS.

3.49 To estimate the overall cost of construction the SAB may also need to take

into account local factors likely to affect the cost of constructing each of the

SuDS components. This may for example include:

 the special characteristics of the application site,

 the nature of the development proposed on the site,

 local costs of labour and materials, and

 risks of failure in SuDS construction.

3.50 The SAB will need to ensure that elements which should not be included in

the cost of construction for bond purposes are identified and excluded from

the calculation. This may for example include:

 site investigation, design costs and land costs,

 any SuDS elements which are non-adoptable,

 any SuDS elements unlikely to be subject to SAB remediation under the

bond,

 any SuDS elements which drain only the highway, which should be

covered by the highway bond rather than the SuDS bond,

 any removable items or features not required for the SuDS operation.

3.51 Ultimately the SAB is responsible for setting the value of the bond. It is for the

SAB to ensure all information and calculations provided by the applicant are

checked and that cost calculations together with any local factors taken into

account are based on robust evidence, so that the bond is both reasonable

and justifiable for the developer.

Draw down of the bond

3.52 In the event that the constructed system does not comply with the approved

design or the construction is not completed the SAB will request the developer

to undertake the necessary work to achieve compliance. Where the developer

See paragraph 9(2)(b) and 10(2) of Schedule 3 to the 2010 Act.

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does not, for any reason, undertake the necessary work, the SAB may need

to utilise some, or all, of the bond to undertake the work itself.

3.53 Before doing so, the SAB must consult

with the developer. It may then issue

a certificate to the developer that the work has not been constructed or

completed as approved or is unlikely to be completed. Once the SAB has

consulted with and given notice of the certificate to the developer, it may then

proceed to undertake any work necessary to achieve compliance. The sums

received under the bond will be used by the SAB to meet the cost of the

works. Any sums remaining under the bond are to be returned to the

developer

Return of the bond

3.54 Where a bond has not been drawn down and the SAB is satisfied that the

drainage system has been constructed in accordance with approved

proposals, including any conditions of the approval which may specify a

defect period and/or establishment period, the SAB must release the bond

The time period for doing so is within 4 weeks beginning on the first day after

the SAB has given notice of its intention to adopt or its decision in response to

a request to adopt

3.55 Where the SAB uses the bond following certification, on completion of the

works the SAB will, within 4 weeks

 send to the developer a full account of any sums received under the

bond that have been applied to the expense of carrying out the work,

 pay the developer any excess, and

 release the bond.

Charging fees for approval and inspections

3.56 Regulations

enable the SAB to charge a fee based on cost recovery for all

applications for approval. The fee must be submitted at the same time as the

application for SAB approval

3.57 The approval fee cannot cover the costs incurred by statutory consultees in

providing input. Nor can the fee cover the costs of any pre-application

discussions (although local authorities may seek to rely on powers under

other legislation to recover costs incurred as set out in paragraph 9.10 of this

guidance)

See paragraph 12 (3) of Schedule 3 to the 2010 Act.

See paragraph 12 (4) of Schedule 3 to the 2010 Act.

See paragraph 23 (6) (g) of Schedule 3 to the 2010 Act.

See Regulation 7 (1) of the Sustainable Drainage (Approval and Adoption Procedure)

(Wales) Regulations 2018.

See Regulations 7 (2) and (3) of the Sustainable Drainage (Approval and Procedure)

(Wales) Regulations 2018.

See Regulations 3, 4, 5, 6, 7 and 9 of the Sustainable Drainage (Application for Approval

Fees) (Wales) Regulations 2018.

See paragraph 9 (2) (c) and 10 (2) of Schedule 3 to the 2010 Act.

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Fee structure for calculating application fees

3.58 A national fee structure for approving applications has been set in regulations,

this provides for fees to be charged on the basis of a set amount for each

application plus an additional amount determined by the size of the

construction area as set out below

: In this context ‘construction area’ means

the area of land identified on a plan accompanying an application

£350 for each application, plus (up to a maximum of £7,500):

 for every additional 0.1 hectare (ha) up to 0.5 ha - £70

 for every additional 0.1 ha between 0.5 ha and 1 ha - £50

 for every additional 0.1 ha between 1 ha and 5 ha - £20

 for every additional 0.1 ha above 5 ha - £10

Discounted fees

3.59 Using the fee structure above to calculate application fees, discounted fees

are to be charged by the SAB in circumstances where:

 Two or more applications or alternative proposals in a single

application are made. The SAB can charge the application fee for the

proposal which would attract the highest fee, plus half the sum of the

fee chargeable for each of the remaining applications and/or alternative

proposals

 The applicant is a town or community council. The SAB can charge a

fee that is half the amount of the application fee

3.60 The SAB may not charge a fee in relation to the modification of an application,

where before determination by the SAB, an application for approval is

modified by agreement between the SAB and the developer

Applications that are resubmitted

3.61 The SAB may charge a fee based on half the amount of the application fee

charged for a previously approved application, where:

 the approval was given within the preceding 12 months and the

subsequent application relates wholly or mainly to the previously

approved SuDS scheme (including construction proposals and

See Regulations 4(1)(a) and (b) of the Sustainable Drainage (Application for Approval

Fees) (Wales) Regulations 2018.

See Regulation 4(2) of the Sustainable Drainage (Application for Approval Fees) (Wales)

Regulations 2018.

See Regulation 7 of the Sustainable Drainage (Application for Approval Fees) (Wales)

Regulations 2018.

See Regulation 5 of the Sustainable Drainage (Application for Approval Fees) (Wales)

Regulations 2018.

See Regulation 6 of the Sustainable Drainage (Application for Approval Fees) (Wales)

Regulations 2018.

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conditions of approval of the previous application)

3.62 The SAB may not charge a fee in relation to a subsequent application for

approval where the application relates only to a condition of approval. Unless

the condition is in relation to the construction of the SuDS scheme and was

made under the previously approved application

Inspection fees

3.63 Where the SAB approves an application subject to a condition that an

inspection(s) of the SuDS scheme are undertaken, it can charge an inspection

fee of £168 for each inspection

See Regulation 9 of the Sustainable Drainage (Application for Approval Fees) (Wales)

Regulations 2018.

See Regulation 9 (3) of the Sustainable Drainage (Application for Approval Fees) (Wales)

Regulations 2018.

See Regulation 8 of the Sustainable Drainage (Application for Approval Fees) (Wales)

Regulations 2018.

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Section 4 : SuDS Adoption

Adoption duty

4.1 Under Schedule 3 to the 2010 Act, subject to conditions the SAB must adopt

SuDS that serve two or more properties

. The duty to adopt does not apply if

the system serves a site which is controlled by a single person or two or more

persons together, as defined in regulations

. Examples of development types

are detailed below:

 Residential buildings with multiple flats.

 Single dwelling house

 Retirement complex

 Office or commercial building

 Industrial development or commercial estate

 School or university campus

 Sports club

 Hospital or other medical facility

This list is not exclusive. In determining what constitutes a “single property”

under the legislation , SABs may find the body of case law on “premises” and

“curtilage” useful.

4.2 In adopting the SuDS system, the SAB should take responsibility for the whole

system (which may include features such as pipes and underground stores as

well as green features such as swales) until flows leave the system to be

either reused, or enter the ground or a surface water body or the sewerage

undertaker’s network.

Adoption conditions that must be satisfied

4.3 The SAB is required to adopt drainage systems which satisfy certain

conditions

. The adoption duty does not apply for SuDS that serve single

properties or publically maintained roads.

4.4 The conditions that must be satisfied are:

 that the drainage system was constructed and functions in accordance

with approved proposals, including any conditions of approval, and

 that the drainage system is a “sustainable drainage system”, meaning

those parts of a drainage system that are not vested in a sewerage

undertaker under a section 104 agreement of the Water Industry Act

1991

See paragraph 17 and 18 of Schedule 3 to the 2010 Act.

See Regulation 9 of the Sustainable Drainage (Approval and Adoption Procedure) (Wales)

Regulations 2018.

See paragraph 17 of Schedule 3 to the 2010 Act.

See the Interpretation for Sustainable Drainage provided in paragraph 2(1) of the

Sustainable Drainage (Approval and Adoption Procedure) (Wales) Regulations 2018.

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4.5 Once the terms of the approval have been met, including any period required

for the establishment of vegetation, the SAB can decide to adopt the drainage

system itself or respond to a request from the developer (using any form

provided by the SAB for doing so)

. Any requests for adoption must be

determined by the SAB within 8 weeks. Failure to do so, will be taken as a

refusal to adopt unless the SAB and developer have agreed beforehand to

extend the time period

Notice of adoption decision

4.6 Where the SAB adopts on its own initiative or in response to a request, it must

notify the developer as soon as is practicable after making a decision

concerning adoption

. The notification must specify the reasons for the

decision and the date of the decision

4.7 Where the SAB refuses to adopt, the applicant may appeal the decision

4.8 The SAB must copy the notice to

 the sewerage undertaker,

 any person who appears to own or occupy land on which the drainage

system is (including details of any arrangements under the approved

proposals for access and maintenance,

 any other person whom the approving body were obliged to consult on

the application for approval,

 any person who appears to own or occupy land from which water will be

drained by the system.

Exceptions to the duty to adopt

4.9 Single property drainage systems and any part of a drainage system which is

a publically maintained road are exempt from the SAB adoption duty

4.10 Highways authorities

are already responsible for the drainage and

maintenance of publically maintained roads. The SAB would be exempt from

adopting any part of a SuDS which the highway authority would already be

responsible for maintaining, for example swales alongside roads and

permeable surfacing. The highway authority must act in accordance with the

See paragraph 23 (2) and (3) of Schedule 3 to the 2010 Act.

See Regulation 7 of the Sustainable Drainage (Approval and Adoption) (Wales) Order

2018.

See paragraph 23 (4)(b) and (5) of Schedule 3 to the 2010 Act.

See Regulation 6 of the Sustainable Drainage (Approval and Adoption Procedure) (Wales)

Regulations 2018.

See paragraph 25(1)(b) of Schedule 3 to the 2010 Act.

See paragraph 23(6) of Schedule 3 to the 2010 Act.

See paragraphs 18 and 19 of Schedule 3 to the 2010 Act and Regulation 9 of the

Sustainable Drainage (Approval and Adoption Procedure) (Wales) Regulations 2018 for the

definition of single property.

All local authorities in Wales are highways authorities for the local road network within their

areas.

31 | P a g e

approved drainage design, including the maintenance regime, in compliance

with the statutory SuDS Standards.

4.11 The SAB duty to adopt includes any SuDS in or along private roads. If the

road became publically maintained, then the highway authority will become

responsible for maintenance.

4.12 The SAB does not have a duty to approve or adopt SuDS constructed by a

sewerage undertaker under a section 114A of the Water Industry Act 1991.

This relates specifically to systems designed to reduce surface water loading

on existing sewerage systems which will remain the responsibility of the

undertaker.

4.13 A sewerage undertaker must accept any surface water from a publically

maintained road, where the drainage system construction is in accordance

with SAB approval

Voluntary adoption

4.14 The SAB may voluntarily adopt a sustainable drainage system where it is not

under a statutory duty to do so

. For example, this may include existing

SuDS which may not have been built to the statutory SuDS Standards,

schemes serving developments which are exempt from adoption under the

transitional arrangements or SuDS serving a single property. The SAB must

notify any sewerage undertaker or person impacted by its decision to adopt

The notice specifying the reason for adoption and the date of adoption must

be given as soon as is practicable after making a decision concerning

adoption

Maintenance and the means of funding for the scheme for its

design life

Maintenance plans

4.15 The developer is expected to develop and produce in partnership with the

SAB a maintenance plan and the means of funding for the scheme for its

design life. The Principle for this is set out in the Statutory SuDS Standards, in

addition the SAB has broad discretion to impose conditions of approval, which

may be used to ensure that the sustainable drainage systems will be

maintained for the lifetime of the development. We suggest the maintenance

plan should at the least include the following:

a) The type of maintenance activities that are required to ensure that the

drainage system operates as designed to manage flood risk and deliver

multiple benefits;

See paragraph 16 (3) of Schedule 3 to the 2010 Act, which amends Section 115 to the

Water Industry Act 1991.

See paragraph 21 of Schedule 3 to the 2010 Act.

See paragraph 24 of Schedule 3 to the 2010 Act.

See Regulation 11 of the Sustainable Drainage (Approval and Adoption Procedure) (Wales)

Regulations 2018.

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b) The anticipated frequencies of those activities;

c) The estimated duration of those activities;

d) Any specific plant and equipment required to undertake those activities;

e) The estimated costs to complete those activities;

f) A site plan showing maintenance areas, access routes and the locations

where maintenance activities are anticipated;

g) A statement describing any secondary function (e.g. recreation area)

above or within the SuDS component and details describing how this

function is to be managed and by whom.

SuDs approval body maintenance and funding

4.16 Developers will need to work closely with the SAB and communities to

develop maintenance options and a maintenance plan, together with funding

which provides for the SuDS to be maintained according to statutory SuDS

Standards for the life-time of the development.

4.17 To be effective we suggest the maintenance plan should clearly identify who

will be responsible for undertaking maintenance and ensure that funding is fair

for household and premises occupiers.

4.18 Where the SAB has a duty to adopt it is ultimately responsible for ensuring the

adopted drainage system is maintained in accordance with statutory SuDS

Standards

. In relation to securing agreements to support maintenance

arrangements, including any commuted sum or maintenance funding, the

SAB may wish to rely on existing powers available to local authorities under

local government legislation.

Commuted sums

4.19 The use of commuted sums

for maintenance is well established. However,

there has been considerable variation in their use across Welsh Local

Authorities.

4.20 Securing a sustainable funding mechanism for the lifetime of development will

be a key objective of the SAB. SABs have a responsibility for the

management and maintenance of SuDS assets. Commuted sums aim to

ensure that the SAB has the resources to cover the upkeep and (where

appropriate) the replacement of the assets they have adopted. The

effectiveness of SuDS and the associated multiple benefits will rely on

appropriate maintenance.

See paragraph 22 of Schedule 3 to the 2010 Act

A one-off payment of a capital sum made as a contribution towards the future maintenance

of an asset to be adopted. Commuted sums generally relate to payments made by

developers through bespoke legal agreements.

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4.21 In order to ensure consistency throughout Wales we recommend the use of the

industry standard guidance “Commuted Sums for Maintaining Infrastructure

Assets” prepared by the CSS (County Surveyors Society), to calculate

commuted sums for all drainage assets being adopted by the SAB, whether

that be through a S38

type agreement or a bespoke legal agreement for the

life of the developments (60-120 years).

4.22 The calculation of a commuted sum includes consideration of:

 The estimated periodic maintenance cost of the asset to the adopted

e.g. every six months. The SuDs manual provides useful information on

this element.

 Its future cost of renewal or replacement (e.g. permeable paving has

design life of 20 years, over the lifetime of the development this could

lead to 3 replacements).

 The duration over which the sum is required. The Association of

Directors of Planning and Transport recommends commuted sums for

structures should be calculated to cover a 120 year period and that the

period for other items should be 60 years (basically the whole life of the

development).

 The effective annual interest rate that will provide a return on the sum

invested prior to its expenditure after the effects of inflation have been

taken into account (called the discount rate approx. 2.0 – 2.2%).

4.23 The use of the CSS guidance is recommended to provide a common

understanding for developers and the SAB in entering into agreements.

Local Government

4.24 Local authorities may wish to outsource the maintenance of sustainable

drainage systems. Local authorities could work collaboratively to deliver this

service or could enter into contractual arrangements with private management

companies or other service providers. Provision for the SAB to intervene in the

event of the failure of the management company should be included in the

management agreements

4.25 Under this option, local authorities would need to charge to fund their activities

in maintaining sustainable drainage systems. The SAB may wish to rely on

existing powers available to local authorities under local government legislation

to transfer SuDS into the management and maintenance of local authorities

upon payment of a commuted sum and/or payment of a maintenance charge

which is reflective of the maintenance / replacement plan for the lifetime of the

development.

Management Company

4.26 Management companies are often set up to maintain public spaces and other

assets on new developments. The SAB may choose to appoint a

management company for the maintenance of the drainage system over the

An agreement made under Section 38 to the Highways Act 1980

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lifetime of the proposed development. The SAB should ensure the

management company is competent to maintain SUDS.

4.27 Charitable trusts, including not for profit community enterprises, could also serve

as management companies

4.28 Provision for the SAB to intervene in the event of the failure of the management

company should be included in the management agreements.

4.29 In all cases where the SAB adopts a drainage system, it remains responsible

for ensuring the system is maintained in compliance with the Statutory SuDS

Standards. .

Private individuals – property owners or occupiers

4.30 Owners / occupiers of properties drained by sustainable drainage systems

that do not also drain other properties should maintain their own drainage

system to ensure that it functions as designed.

4.31 Where these systems are simple, with minimal or no propriety products, easy

to maintain and serving only small numbers of properties, the owners /

occupiers of these properties may also wish to maintain the sustainable

drainage systems collectively.

4.32 The developer should provide owner/s / occupiers with full instructions on the

maintenance of the sustainable drainage systems, including repair and

replacement requirements.

Designation - Asset register, monitoring and reporting

4.33 Within 4 weeks of giving notice of its decision to adopt

the SAB must

arrange for:

 The LLFA to include the drainage system (whether adopted or not) in the

flood risk in an area (Section 21 of the 2010 Act requires a LLFA to

establish and maintain a register and information regarding structures or

features which are likely to have a significant effect on a flood risk in its

area).

 The provisional designation for those parts of the drainage systems that

are not owned by the SAB, and are eligible for designation with the

designating authority (Schedule 1 to the 2010 Act defines designating

authority and the procedure for provisional designation notice).

 The designation under section 63 of the New Roads and Street Works

Act1991 (streets with special engineering difficulties) of any adopted part

of the drainage system that is a street, within the meaning of section 48

See Regulation 8 of the Sustainable Drainage (Approval and Adoption Procedure)(Wales)

Regulations 2018.

35 | P a g e

of that Act.

4.34 The SAB must arrange for the inclusion within four weeks beginning on the

first working day after giving notice of its decision about adoptionmade under

Paragraph 23 (2) of the 2010 Act.

4.35 It is recommended that the SAB also arranges for the inclusion of details of

approved drainage systems serving more than one domestic property for

which it does not have a duty to adopt on the section 21 register.

4.36 This register could be used by local authorities to better understand the

cumulative impact of SuDS and potentially how developers could extend

existing SuDS schemes to incorporate additional development rather than

creating new systems. As such it is recommended that section 21 registers

include the following information regarding sustainable drainage systems:

 Surface catchment area

 SuDS components

 SuDS area

 Design runoff rate

 Design runoff volume

 What and where is the end point of the SuDS management train e.g.

watercourse, combined sewer

 Owner

4.37 A record of maintenance and any monitoring to be undertaken should be

identified between the SAB and the developer to include within a maintenance

plan. This will ensure the SuDS can be adequately maintained to comply with

the SuDS standards.and should help reduce the need for ongoing inspections

by the SAB. Monitoring data could be recorded, and where possible this could

be done automatically through the use of smart technology. It may be possible

for local wildlife or community groups to collect data.

4.38 This information could then be used to produce a regular statement of

compliance. If these flag up any irregularities an inspection can be arranged.

SABs could arrange an inspection at any time if there are complaints or if they

otherwise deem it appropriate..

4.39 The registers are public documents and must be available for inspection at

reasonable times.

4.40 For drainage systems which remain in private ownership, for example on a

single property such as a supermarket site, the SAB may need to undertake

inspections from time to time to ensure that they are maintained adequately

and functioning as approved. The local authority (which is also the SAB) may

use powers available to them under other legislation

to recover associated

costs.

Such as for example Section 93 to the Local Government Act 2003

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Section 5 : When things don’t go to plan

Resolving disagreements - appeals

5.1 We believe that a negotiated solution is best when dealing with disputes

around SAB decisions. However a formal mechanism for appeals to the

Welsh Ministers is provided in Regulations.

5.2 Full details of the procedure for appeals, including; how an appeal may be

made, the information to be provided, duties of the SAB in providing

information, timescales for appeal decisions and the specific duties for the

Welsh Ministers, are contained in the Regulations

5.3 It should be noted that making an appeal does not suspend a decision and a

developer appealing against a condition of an approval must not start

construction.

SAB decisions that can be appealed and the time-limit for doing so

5.4 In the event that a developer and the SAB can not find a mutually acceptable

resolution of a dispute over a SAB decision, which may relate to:

 an application for approval,

 approval conditions, including a condition specifying a non-performance

bond,

 a request to adopt a drainage system.

5.5 The developer may by notice appeal to Welsh Ministers against the decision,

the appeal must at the same time be copied to the SAB. In practice, the

Planning Inspectorate Wales (PINS) will handle the appeal on behalf of the

Welsh Ministers. A copy of the form needed to make an appeal is available by

contacting PINS:

 Website: https://beta.gov.wales/planning-inspectorate?contact_us/

 Email: wales@pins.gsi.gov.uk

 Telephone: 0303 444 5940

5.6 An appeal must be made to the Welsh Ministers (PINs) and copied to the SAB

within the time-limit set in Regulations

, as follows.

 Any appeal concerning an application for approval or a request to adopt

must be made within the period of 6 months beginning with:

Appeal type

Either

An application for

approval (other than a

decision about a

The date of the decision

If the appeal is against the

deemed refusal of the

application arising from the

See the Sustainable Drainage (Appeals) (Wales) Regulations 2018.

See Regulation 5 of the Sustainable Drainage (Appeals) (Wales) Regulations 2018

37 | P a g e

condition)

failure of the approving body

to determine the application

within the period prescribed in

regulations

, the last day of

that period.

A request to adopt

The date of the decision

If the appeal is against the

deemed refusal of the request

arising from the failure of the

approving body to determine

the request within the period

prescribed in regulations

100

 Any appeal concerning a condition of approval, including a condition

specifying a non-performance bond, must be made within the period of 6

months beginning with the date approval is granted.

5.7 In addition, the appellant must identify a choice of appeal mechanism:

 Written representation

 Oral hearing

 Enquiry

5.8 Appeals may be submitted electronically or by post. An appeal may be

withdrawn at any time by the appellant by giving notice in writing to the Welsh

Ministers (PINs), copied to the SAB.

.Enforcement

5.9 Full details of how the enforcement regime works are contained in the

Order

101

. The Order provides similar provisions to those available under

planning legislation where feasible and practicable but deviates where

necessary to reflect the differences in the regimes, such as the duty to adopt.

5.10 The SAB and the LPA may arrange that the LPA will exercise the enforcement

functions on behalf of the SAB

102

5.11 To determine if there has been a breach of the requirement for approval the

SAB may exercise powers of entry and issue a temporary stop notice. The

temporary stop notice must set out the details of the activity that is believed to

be a breach and prohibit the developer from continuing the activity.

5.12 The SAB after consulting the developer may certify

103

that the drainage

system:

See Regulation 5 of the Sustainable Drainage (Approval and Adoption Procedure) (Wales)

Regulations 2018.

100

See Regulation 7 of the Sustainable Drainage (Approval and Adoption) (Wales) Order

2018.

101

See the Sustainable Drainage (Enforcement) (Wales) Order 2018.

102

See Article 3 of the Sustainable Drainage (Enforcement) (Wales) Order 2018.

103

See paragraph 12(2) and 12(3) to the 2010 Act.

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 has not been constructed in accordance with the approved proposals, or

 is unlikely to be completed.

5.13 In which case the SAB, drawing on the non performance bond may arrange

for any work to be carried out to ensure the drainage system is completed to

comply with the Statutory SuDS Standards.

5.14 Within 4 weeks after completion of the work, the SAB must; send to the

developer a full account of any sums received under the bond that have been

applied to the expense of carrying out the work, pay any excess bond and

release the bond

104

Enforcement notices

5.15 Under the Order

105

if a developer breaches the requirement for approval the

SAB may issue an enforcement notice. An enforcement notice may be given

at any time before a drainage system for the construction work is adopted, but

not later than 4 years after the breach has occurs. The enforcement notice

may require the developer to take certain steps to rectify the breach or a

failure to comply with an enforcement notice.

5.16 A developer who is given an enforcement notice may by notice appeal to the

Welsh Ministers (PINS) against the decision on the grounds that it was; based

on an error of fact, wrong in law, unreasonable or there was no breach of the

requirement for approval.

104

See Regulation 7(3) of the Sustainable Drainage (Approval and Adoption Procedure)

(Wales) Regulations 2018.

105

See Articles 8-20 of the Sustainable Drainage (Enforcement) (Wales) Order 2018.

39 | P a g e

Annex 1

40 | P a g e

Annex 2

Resources and Useful Links

A wide range of resources is available to support the implementation of SuDS in

Wales. Technical information is available from the Construction Industry Research

and Information Association (CIRIA). Recent publications include:

 The SuDS Manual (C753)

 Guidance on the construction of SuDS (C768)

 Planning for SuDS – making it happen (C687)

 Site handbook for the construction of SUDS (C698)

CIRIA also manage the Susdrain web site, which is supported by the Welsh

Government. The site aims to support the implementation of SuDS through advice,

guidance, case studies and regular news items. It also includes a comprehensive

listing of publications on SuDS.

The Welsh Government web site contains some information on SuDS, including the

pdf of this guidance.

The SuDS Wales web site includes specific information on SuDS in Wales.

Guidance is also published by the Wildfowl and Wetlands Trust/RSPB

http://ww2.rspb.org.uk/Images/SuDS_report_final_tcm9-338064.pdf

In order to ensure consistency throughout Wales we recommend the use of the

industry standard guidance “Commuted Sums for Maintaining Infrastructure Assets”

prepared by the CSS (County Surveyors Society), to calculate commuted sums for

all drainage assets being adopted by the local authority (by the SAB or Highway

Authority).

 Commuted Sums for Maintaining Infrastructure Assets

Training resources

We have commissioned the development of a series of training modules on SuDS

in Wales. In addition to courses being delivered across Wales, the materials will

also be available through the susdrain web site.