DRAINAGE – THE ROLE OF SUSTAINABLE DRAINAGE SYSTEMS (SuDS)

A GUIDANCE NOTE for SOLICITORS INVOLVED IN PROPERTY DEVELOPMENT AND

TRANSACTIONS

By John Bates, Barrister, Old Square Chambers

Author: Water and Drainage Law
REVISION JAN 2017
Introduction1

This note outlines the solicitor’s (your) duty of care when dealing with drainage issues for
property clients, taking account of Government planning policy changes in support of
sustainable drainage systems (SuDS). Please refer to the Glossary at Section 11 for the
meaning of words in bold and italicised.

You already undertake CON29DW enquiries of water companies in property transactions to

ascertain whether foul and surface water drains from the property and connects to the public
sewer. If it does not, your client, the buyer, will have to pay to maintain drains and sewers
and may have to bring them up to adoption standards if the water company wishes to adopt
them. However, traditional water and drainage searches do not address the impact of SuDS
(which are designed so that they only drain into surface water / combined public sewers as a
last resort).

Also, your client may not be aware of the presence of existing SuDS on a site and so greater
due diligence is required to understand any liabilities that may be transferred on acquisition.

Government planning policy and planning decisions now include a presumption in favour of
SuDS being used for all major development sites, unless they can be shown to be
“inappropriate” 2. “Major development” means sites with more than 10 dwellings. However,
where the site is in a flood risk area, this will apply to all developments. You have a duty of
care to help your client make a legally informed decision 3 as to whether to buy a site for

1
This Guidance Note provides the authors’ view of good practice in this area. It is not legal advice. Whilst care has been taken
to ensure that it is accurate, up-to-date and useful, the authors will not accept any legal liability in relation to it.
2
See: HCWS (161) 18th Dec. 2014 http://www.parliament.uk/business/publications/written-questions-answers-
statements/written-statement/Commons/2014-12-18/HCWS161/. See also PPG on Flood Risk, para. 079 ID: 7-079-20150415.
3
See SRA Handbook, Chapter 1: http://www.sra.org.uk/solicitors/handbook/code/part2/content.page

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development which may require the construction and long-term maintenance of a SuDS or to
buy an existing property served by a SuDS.

1. Sustainable Drainage

SuDS control surface water runoff close to where it falls. SuDS are designed to replicate, as
closely as possible, the natural drainage from the site before development to ensure that the
flood risk downstream does not increase as a result of the site being developed, and that the
site will have satisfactory drainage under current and likely future climatic conditions.

Drainage Hierarchy

Generally, the aim of drainage in any development should now be to discharge surface water
runoff as high up the following hierarchy of drainage options as reasonably practicable 4:

• into the ground (infiltration);

• to a surface water body;

• to a surface water sewer, highway drain, or another drainage system;

• to a combined sewer.

The discharge of surface water runoff to a foul sewer is no longer allowed.

SuDS Benefits

In addition to attenuating the effect of surface water runoff and reducing the risk of consequent
flooding, SuDS provide opportunities to reduce remove pollutants from runoff at source; and
combine water management with the provision of green space for amenity, recreation and
wildlife 5.

SuDS may help a client to unlock the development potential at a site where drainage to a
sewer is impractical.

4
Paragraph: 080 Reference ID: 7-080-20150323, Revision date: 23 03 2015
5
PPG on Flood Risk, ref ID - 7-051-20150323.

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SuDS Implications

SuDS can take up a significant area of the site – e.g. they may take the form of a large pond.
This means less land is available for building purposes and development profit may be
redirected.

If your client engages early with the planning authority, the land take may not necessarily be
significant and could be combined with public open space - but early engagement is key.

Construction of a SuDS can cause delay to the building project and will involve extra cost,
both in initial construction and ongoing maintenance, if the latter cannot be passed on to those
who purchase the homes built on the site. Setting up the contractual regime to secure future
maintenance and contribution by parties other than the developer is complex and will increase
legal costs.

Some particular types of sustainable drainage systems may not be practicable in all locations.
Local planning authorities are encouraged to set out those local situations where they
anticipate particular sustainable drainage systems not to be appropriate 6. This might be
because of to the costs / benefits of a system as compared with compliance with building
regulations or drainage to a public sewer 7.

SuDS and Climate

The prospect of warmer, wetter weather for the UK over the longer term means that surface
water flooding is likely to increase and the need for SuDS will become more imperative. The
December 2015 Paris Protocol set a target of limiting the average increase in global
temperature to 2 degrees Centigrade.

Even if this is achieved, the Intergovernmental Panel on Climate Change predicts that
extreme weather events are likely to become more frequent and severe as the climate
changes. Any sustainable drainage system should be designed so that the capacity takes
account of the likely impacts of climate change 8.

6 PPG Flood Risk, para. 080, ref ID: 7-080-20150323.

7 PPG Flood Risk, paras 083 and 085.
8 PPG Flood Risk para. 085 Ref. ID: 7-085-20150323.

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 2. Solicitor Involvement and Duty of Care

You have a duty to exercise reasonable skill and care in advising your client on their residential
or commercial property transaction. This duty of care extends to advising about SuDS where
there site involves redevelopment or if the client is buying a property that is served by a SuDS.
Whilst much of the work relating to SuDS is for technical advisors, you are obliged to undertake
such investigations as are expressly or impliedly 9 requested by the client. To discharge your
duty of care you will need:

• To advise your client that SuDS are relevant to all property developments of 10 or
more dwellings or any developments in a determined flood risk area;
• To make reasonable enquiries to help your client determine whether SuDS are an
‘appropriate’ drainage solution for the site. Depending on the outcome of these
enquiries, you may need to advise your client on the legal aspects of any remedial
action (i.e. potential SuDS strategies or how to obtain permission to discharge to
public sewers);
• To advise your client about planning conditions that relate to SuDS;
• To deal with any easements to drain into or over third party land and regulatory
consent to discharge to a water sewer, surface or groundwater;
• To advise the ensure client that they must comply with all Local Plan policies;
• To negotiate with relevant authorities about SuDS adoption;
• To negotiate SuDS maintenance documents / the identification of flood risk
features; and
• To advise your client to check with their insurance broker that they have adequate
insurance cover, e.g. for third party liabilities arising from inadequate drainage.

9 Implied requirements of the client: Minkin v Landsberg [2015] EWCA Civ 1 - “an inexperienced client will expect
to be warned of risks which are (or should be) apparent to the solicitor but not to the client” – Minkin, para. 38(iv)

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 3. Requirements for SuDS – Planning Policy and Building Regulations
The planning policy is set out in a House of Commons Written Statement from Mr Pickles, the
then Secretary of State, who said 10:

“We expect local planning policies and decisions on planning applications relating to
major development - developments of 10 dwellings or more; or equivalent non-
residential or mixed development (see 11 and Glossary) – to ensure that sustainable
drainage systems for the management of runoff are put in place, unless demonstrated
to be inappropriate12.”

What is considered 'appropriate' and hence reasonably practical by the Planning Authority
will vary depending on local planning policy, and site setting. ‘Appropriateness’ of SuDS
should be assessed using the guidance documents available 13, taking account of the
different requirements for greenfield and developed sites. Where SuDS are “appropriate,”
and reasonably practical in terms of costs / benefits, the scale and design of the SuDS
scheme needs to be determined during the planning and technical design stage of the
development.

The Building Regulations Guidance 14 which broadly follows the Drainage Hierarchy, states
that as a first priority, “an adequate soakaway or adequate infiltration system” is installed to
discharge rainwater, where reasonably practicable.

Your client will need to follow the hierarchy of drainage options (see above), starting by
ascertaining whether a SuDS is practicable for the property 15. A SuDS may be more than is
needed and alternative, smaller solutions like soakaways may be more appropriate.
“Practicable” will include ground conditions and the costs/ benefits 16.

10 HCWS (161) 18th Dec. 2014. See also PPG on Flood Risk, para. 079 ID: 7-079-20150415.
11 See now SI 2015/595, Art 2(1).
12 This came into effect on 6th April 2015.
13 See Further Information (Section 10 below).

14 Building Regulations – Approved Document H – 2015 Revision P39.

15 Approved Document H (2015) H3 paras 3.2-3.4
16 Flood Risk PPG at 083 and 085

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Local Plans may include policies that require improvement such as for the reduction of the
volume and speed of water runoff to the drainage system. However, the requirement for
SuDS does not give rise to a positive duty on a developer to consider improving the
drainage of the relevant area 17 nor on the local planning authority to require such
improvement 18. In Menston, Patterson J. described the developer’s duty as “not to worsen
the situation elsewhere”.
Non-statutory technical guidance for SuDS states that for greenfield developments:
• the peak runoff rate from the development to any highway drain, sewer or surface
water body for the 1 in 1 year rainfall event and the 1 in 100 year rainfall event should
never exceed the peak greenfield runoff rate for the same event.

And for existing developments:

• the peak runoff rate from the development to any drain, sewer or surface water body
for the 1 in 1 year rainfall event and the 1 in 100 year rainfall event must be as close
as reasonably practicable to the greenfield runoff rate from the development for the
same rainfall event, but should never exceed the rate of discharge from the
development prior to redevelopment for that event.

Development therefore needs to ensure that it does not exceed the greenfield rate and
therefore the developer’s Menston obligation (to avoid worsening), and that this will need to
be met through SuDS. Only where SuDS are shown to be inappropriate, will it then need to
be addressed through increased discharge via mains drains or sewers.

4. SuDS and Related Issues

SuDS can give rise to technical issues which may require specialist advice, including:

Flood Risk
Local flood risk issues will have implications for SuDS design and operation. Many planning
authorities will require a flood risk assessment 19 / statement checklist and drainage
strategy; while at the outline stage it will want a ground investigation report for infiltration. At
the full planning stage your client may also need to undertake full structural, hydraulic and
ground

17
R (Menston Action Group) v City of Bradford MDC [2015] EWHC 2292 (Admin).
18
See by way of example Kensington & Chelsea Local Plan policy CE 2(e).
19
See: https://www.gov.uk/guidance/flood-risk-assessment-for-planning-applications

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investigations together with geotechnical factual and interpretative reports, including
infiltration results, dependent on the local authority requirements and site characteristics 20.

Pollution
If surface water is to infiltrate into the ground, the planning authority will want evidence about
the pollution risk to underlying aquifers and the presence of groundwater source protection
zones (certain wells, boreholes and springs used for public drinking water supply which the
Environment Agency have determined as source protection zones).

5. Adoption of SuDS

Sewerage undertakers may adopt SuDS as part of the sewerage system, if they are
designed and constructed in accordance with their wishes. They could require maintenance
issues to be dealt with in accordance with their Management Plan and in accordance with the
Flood and Water Management Act 21. Local authorities may also have SuDS Adoption policies.
Essex County Council, for example, says:

“ECC has a policy of not adopting SuDS unless exceptional circumstances prevail. The
developer must be able to demonstrate that it is not possible for the SuDS to be adopted by a
water company, with design changes if necessary.” 22

6. Maintenance of SuDS

If the SuDS will not be adopted by a sewerage undertaker or local authority a planning
condition may require that “The sustainable drainage scheme shall be managed and
maintained thereafter in accordance with the agreed management and maintenance plan” 23.
Alternatively a section 106 agreement, as per the 1990 Town and Country Planning Act, will
be needed.

20
Non-Statutory Technical Standards for Sustainable Drainage. Practice Guidance (2015) p. 9 – table.
21
E.g. Anglian Water Sustainable Drainage Systems (SuDS) Adoption Manual.
22
ECC SuDS Adoption Policy June 2015
23
Planning Portal. Model conditions.

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This could have serious financial implications for clients. Maintenance is a long-term
obligation requiring the upkeep of all elements of the SuDS, including mechanical components
(e.g. pumps), as well as inspections, regular maintenance and repair. There will be a need to
identify who ultimately owns the land on which the SuDS sits, as well as supporting equipment,
such as pumps, etc. There is also the question long term of how cash is raised to pay for
maintenance and where liabilities sit.

7. SuDS Reports

Different SuDS reports are relevant at different stages of the planning and design process.

Pre Application SuDS Report

To ascertain whether SuDS is ‘appropriate’ for your client’s site you should advise your client
to equip themselves with the information they need and that a SuDS pre-application report
from a specialist data provider is obtained.

This will help your client to assess SuDS appropriateness according to the drainage hierarchy
as to whether:

• the soil and geology underlying the property is suitable for a SuDS infiltration
drainage solution;
• the property may contain contamination which might be mobilised if a SuDS solution
was constructed, thus giving rise to liability; and
• a surface water course is present in the vicinity with capacity to receive site discharge
and the implications for third party land access.

In doing this, your client should consider the intended use of the land. You should alert your
client to any issues disclosed in such reports for them to decide the best course of action. If it
becomes clear that the intended use will not be possible due to irresolvable drainage issues,
you should seek specific instructions from your client as to whether they wish to proceed.

Outline and Full Planning Stage SuDS Report

Reports are available from specialist data providers at increased levels of detail to support
your client’s outline planning application.

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These more detailed SuDS reports provide estimates of attenuation and storage requirements
for the site, which will constrain the extent and costs of the proposed development.

8. SuDS Insurance
Drainage risks are insurable. You should advise your client to review their existing insurance
policies to ensure that coverage is provided for the costs of remedying defective drainage
systems and paying for first and third party losses arising from such defects. However, such
policies may contain limitations on what and who they cover and you may provide advice as
to the scope of the cover.

If your client does not have insurance for this risk, you should suggest that they speak to their
insurance broker. The amount of any premium, the level of excesses and the imposition of
certain conditions are important factors to be considered in selecting a policy.

9. Summary
There is a presumption in favour of SuDS for all major developments and for all
developments where there is an identified flood risk. SuDS are the preferred approach to
managing surface water runoff unless they are shown to be ‘inappropriate’. For smaller
developments Building Regulations require a SuDS approach to be taken to your client’s
property.

You should advise your client of the risks and the how a pre-application SuDS Report could
help ascertain whether SuDS are appropriate or not. This determination has important legal
repercussions for your client, including the possibility of your client and its successors in title
having a long-term obligation to maintain the SuDS.

SuDS can give rise to a number of other geo-environmental issues, including flooding and
contamination (e.g. if the drainage system is constructed in an area on previously
developed land). Advice may be required from an independent scientific advisor which takes
these related considerations into account.

Drainage is already an important issue for clients and for lawyers. The prospect of warmer,
wetter weather for the UK over the longer term means that the need for SuDS will become
even more significant for clients and solicitors.

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 10. Further Information for Solicitors
R (Menston Action Group) v City of Bradford MDC (see Section 3 above) determined the
meaning of “sustainable urban drainage principles”. The following sources of law and policy
were cited by the High Court:

• National Standards for Sustainable Drainage Systems Consultation Paper of December

2011;
• Schedule 3 of the Flood and Water Management Act 2010 albeit this schedule is not in
force;
• National Planning Policy Guidance (NPPG), paragraph 7;
• PPG on Flood Risk;
• Non-Statutory Technical Guidance for SuDS (DEFRA, March 2015).

11. Glossary
The following words have the following meaning:

Adoption: means the vesting of the drainage system - or part of the system - in the sewerage
undertaker or local authority.

Drainage / Drainage System: means all the components that convey the surface water to a point of discharge.

Flood Risk Assessment: means an assessment of the potential flood risk to and from a site, from all sources,
which may affect the feasibility of a development and demonstrates how flood risk will be managed now and over
the development’s lifetime, taking climate change into account in accordance with the NPPF.

Greenfield Rate / Runoff Rate: means the surface water runoff regime from a site in its assumed natural
condition before development occurred.

Infiltration: means where rainfall and collected surface water runoff, permeates (soaks) and filters through to the
subsoil layer, and continues to the water table within the underlying geology below.

Major Development: means development as follows - a) winning and working of minerals or the use of land for
mineral-working deposits; b) waste development; c) provision of dwelling houses where (i) the number of dwelling
houses to be provided is 10 or more; or ii) development is to be carried out on a site having an area of 0.5
hectares or more and it is not known whether the development falls within sub-paragraph (c)(i); (d) provision of a
building or buildings where the floor space to be created by the development is 1,000 square metres or more; or
(e) development carried out on a site having an area of 1 hectare or more. See SI 2015/595, Art 2(1).

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Maintenance: means the on-going maintenance of all elements of the sustainable drainage system (including
mechanical components) and will include elements such as; on-going inspections relating to performance and
asset condition assessments; operation costs, regular maintenance, remedial works and irregular maintenance
caused by less sustainable limited life assets.

Sewerage Undertaker: is a collective term relating to the statutory undertaking of water companies that are
responsible for sewerage and sewage disposal including surface water from roofs and yards of premises.

Surface Water Runoff: means water flow over the ground surface to the drainage system. This occurs if the
ground is impermeable, is saturated or if rainfall is particularly intense.

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