Schedule 3
Flood and Water Management Bill

Sustainable Drainage

Amendment proposed (this day): 151, in schedule 3, page 52, leave out lines 19 and 20 and insert—

‘(1) The Minister shall by order provide for the enforcement of—

(a) the requirement for approval in paragraph 7(1); and

(b) the duty to maintain in paragraph 21.’.—(Miss McIntosh.)

Question again proposed, That the amendment be made.

1:00 pm
Photo of Ann Winterton

Ann Winterton (Congleton, Conservative)

I remind the Committee that with this we are discussing the following: amendment 155, in schedule 3, page 54, line 36, leave out ‘becomes responsible for maintaining’ and insert

‘shall be under a duty to maintain’.

New clause 13—Ownership and maintenance of sustainable urban drainage systems

‘It shall be stated which body has to be responsible for—

(a) the ownership, and

(b) maintenance of sustainable urban drainage systems.’.

New clause 21—Transfer of sustainable urban drainage systems

‘The Secretary of State may make provision for the transfer of Sustainable Urban Drainage Systems to water and sewerage companies.’.

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Huw Irranca-Davies (Parliamentary Under-Secretary (Marine and Natural Environment), Department for Environment, Food and Rural Affairs; Ogmore, Labour)

I welcome you to the Chair, Lady Winterton. I look forward to serving under your stewardship on this final and very important sitting of this well supported Bill.

I was making my concluding remarks, and I simply wanted to say that the Bill itself provides 100 per cent. clarity on the arrangements for approval and adoption of sustainable drainage systems in new developments—ones that have not yet been built. Unitary and county local authorities will be SuDS approving bodies, and they will be responsible for both functions. Those with responsibility for adopting and maintaining SuDS should also lead on approving their design and construction. That will mean that robust, well designed SuDS that can be efficiently and effectively maintained are built.

The SAB, which is also responsible for surface water and is lead local flood authority, will consider the wider impacts of the development. County and unitary authorities will be responsible for approving drainage systems in  new developments. Where planning permission is required, the developer can apply via the planning authority to streamline the process, but the decision on drainage lies with the SAB and it will be guided by the national standards, which will set out connection to the sewer as a last resort.

Water and sewerage companies, as well as the Environment Agency, are statutory consultees to the approving process. Let me be clear: the process holds significant weight. The SAB is liable for approving any SuDS application. As a result, it will be subject to judicial review proceedings should it fail to discharge its duties. It is clearly strongly in the interests of the approving body to consult effectively and listen to the advice of the water company regarding sewer capacity. However, it must equally be emphasised that water and sewerage companies are under a general duty to provide, maintain and extend the public sewerage system in their areas.

County and unitary authorities are also responsible for adopting and maintaining new SuDS that serve more than one property. Where those SuDS are in roads, the Highways Authority will maintain them. SuDS are also located at county and unitary level. Developers welcome that as it sets out clear arrangements for maintenance and provides an incentive for SuDS to be built, which is what we all want to see.

Let me quickly pick up on the question asked by my hon. Friend the Member for Selby. In Scotland, the water company is state-owned, but here they are private. In Scotland the arrangements are more fragmented, with local authorities adopting SuDS in roads, and Scottish Water adopting other SuDS and so on. This measure is much clearer.

Returning to the Bill, arrangements have also been made to protect private SuDS by way of designation under schedule 1, and enforcement arrangements are provided for in schedule 3. Under the Bill, the SAB can also adopt existing SuDS voluntarily. Such arrangements for approval and adoption are very clear; they cover all types of new SuDS and are all already set out in the Bill.

Let me add some further clarity on adoption functions in order to address the view of some—but not all—water companies that they should adopt and maintain SuDS, and to address concerns about who is accountable. If flooding occurs because a SuDS that the local authority has adopted has not been maintained properly, the local authority will be responsible. It will have failed in its duty, and—I hope this does not happen—it could be sued if damages are caused through negligence. There is nothing in the Bill to prevent unitary and county local authorities, in their role as SABs, from transferring their adoption functions to water and sewerage companies by agreement should they choose to do so, and that may happen. The SAB would retain responsibility and liability for the SuDS, and that is right. However, arrangements for funding in that respect would need to be agreed.

The Bill also makes provision for the Minister to appoint, by order, a body other than the unitary or county council to be the SAB under sub-paragraphs (3) to (5) of paragraph 6 of schedule 3. We have spoken to the water industry and both it and we are content that the spirit of what it wants can be delivered via the guidance on the process of seeking and maintaining approval, which is the subject of Government  amendment 159, accepted this morning. The same applies to the following group of amendments. We are content that the spirit of what is wanted can be delivered via the guidance. We will speak to the industry between now and consideration on Report, so that if there are any residual issues, amendments can be tabled on Report. The water industry will be involved in the development of the guidance. As statutory consultees to the SuDS approval process set out in the Bill, the SAB must take notice of the advice of water companies. I will clarify in guidance exactly what that means.

With those reassurances and clarifications, I hope that the hon. Member for Vale of York will consider withdrawing the amendment.

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Anne McIntosh (- Shadow Minister, Environment, Food and Rural Affairs; Vale of York, Conservative)

I warmly welcome you to the Chair, Lady Winterton. It is a great pleasure to serve under your chairmanship. As the Minister said, this is the last lap of the Committee stage, so it is a particularly important sitting.

Unfortunately, the Minister has not satisfied us on many aspects. Immediately before lunch, he referred to his letter of 19 January relating to SuDS and the automatic right to connect. In particular, we have concerns over new developments. On the second page, the letter states that it is already open to planning authorities to impose a planning condition deferring development or, ultimately, to refuse consent for a new development.

Water and sewerage companies should be recognised as statutory consultees on the same basis as the Environment Agency. They should be able to set conditions to avoid the outfall from SuDS into the sewerage system causing spillage, as was described by the hon. Member for City of Durham and other hon. Members. I want the companies to be able to say that the capacity required for a new development requires changes to the infrastructure, and for those changes to take place as part of the planning conditions. Everybody I have spoken to informs me that under the current provisions, what the Minister is assuring us will happen will not happen.

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Huw Irranca-Davies (Parliamentary Under-Secretary (Marine and Natural Environment), Department for Environment, Food and Rural Affairs; Ogmore, Labour)

I want simply to reiterate my commitment that, subject to discussions with the water industry next Tuesday, I will come back and give time should the hon. Lady or other hon. Members think amendments are needed subsequently. The water industry should be able to indicate whether it is reassured or not.

Photo of Anne McIntosh

Anne McIntosh (- Shadow Minister, Environment, Food and Rural Affairs; Vale of York, Conservative)

I am most grateful. As we learned this morning, the problem is that the Government’s track record on issuing guidance is woeful. We are still waiting for the guidance to be issued on the adoption of private drains and sewers. We are told that that is on target to be brought in by 2011.

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Laurence Robertson (Shadow Minister, Northern Ireland; Tewkesbury, Conservative)

On a point of order, Lady Winterton. Can we confirm whether it would be in order to table on Report amendments similar to those we are discussing?

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Ann Winterton (Congleton, Conservative)

I reassure the hon. Gentleman that that would be entirely in order. Of course, I cannot give an undertaking about the selection of such amendments.

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Anne McIntosh (- Shadow Minister, Environment, Food and Rural Affairs; Vale of York, Conservative)

I am most grateful.

The Minister’s letter and remarks show that we are still in a bit of a muddle on this matter, and we seek clarification in the Bill. We do not want water and sewerage companies just to be consulted on guidance, but for the guidance to stipulate that they will set conditions. Can the Minister give us a commitment in Committee that water and sewerage companies will be in a position to set conditions, so that they can advise the planning body—the SAB? That goes to the heart of the Bill. I believe that the developer and the owners of the new houses on a major new development should pay. Any costs that arise from works to the infrastructure owned by the water and sewerage companies—because of the potential for surface water relating to the major new development to come into the sewerage system—should under no circumstances fall to existing customers. Is the Minister prepared to put that commitment on record? He shakes his head, so I am afraid that he does not satisfy us.

Furthermore, the Minister just said that the arrangements for funding the SuDS approval body have yet to be agreed. He has gained a great deal of celebrity and popularity during the Committee’s proceedings, and I hope that he is not now playing us for fools. Why should we let this part of the Bill go without an assurance about what the funding will be and who will provide it? He knows that the so-called SuDS approving bodies, namely local authorities, have made representations at every opportunity, saying that they do not have the necessary funds.

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Huw Irranca-Davies (Parliamentary Under-Secretary (Marine and Natural Environment), Department for Environment, Food and Rural Affairs; Ogmore, Labour)

I say only that I have made my commitment clear and outlined what we intend to do about the whole range of funding burdens. Will the hon. Lady make it clear that, if she were in my post after a general election, she would honour those commitments? With those assurances, local authorities, water companies and others would have to have faith in Ministers to fulfil the commitments.

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Anne McIntosh (- Shadow Minister, Environment, Food and Rural Affairs; Vale of York, Conservative)

To which commitment is the Minister specifically referring?

Photo of Huw Irranca-Davies

Huw Irranca-Davies (Parliamentary Under-Secretary (Marine and Natural Environment), Department for Environment, Food and Rural Affairs; Ogmore, Labour)

We have committed to considering the whole range of burdens—SuDS, sewers, skills, training, capacity and so on—and to sitting down formally with the Local Government Association and others to decide the way forward.

Photo of Anne McIntosh

Anne McIntosh (- Shadow Minister, Environment, Food and Rural Affairs; Vale of York, Conservative)

My hon. Friends will hear me make this commitment: my understanding is that we are totally committed to doing that. We forced the Minister to this point by saying that if he were not prepared to introduce the Bill, we would introduce it as an emergency measure if our positions changed. We are seeking his assurance now so that water company customers know that they will not pay, that there will not be an extra charge on the local council tax and that the new developers will pick up the bill.

Another point of difference is that we believe that the SuDS approval body is not best placed to maintain SuDS once they have been approved.

I do not wish to detain the Committee further. I simply wish to press the amendment to a vote.

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

Amendment made: 159, in schedule 3, page 53, line 3, at end insert—

‘Guidance

14A The Minister may issue guidance about the process of seeking and obtaining approval; and approving bodies must have regard to the guidance.’.—(Huw Irranca-Davies.)

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Anne McIntosh (- Shadow Minister, Environment, Food and Rural Affairs; Vale of York, Conservative)

I beg to move amendment 152, in schedule 3, page 53, line 19, leave out ‘Where’ and insert ‘Subject to section 106AA below, where’.

Photo of Ann Winterton

Ann Winterton (Congleton, Conservative)

With this it will be convenient to discuss the following: amendment 153, in schedule 3, page 53, line 24, at end insert—

‘106AA Communication with sustainable drainage systems

(1) This section applies to drainage systems the construction of which requires approval under Schedule 3 to the Flood and Water Management Act 2010 (sustainable drainage).

(2) Terms and expressions used in Schedule 3 to the Flood and Water Management Act 2010 shall have the same meanings in this section.

(3) The communication of a drainage system with a public sewer or other works owned by or vested in a sewerage undertaker may not be approved or effected by an approving body or other person except in accordance with this section.

(4) An approving body or other person wishing to approve or effect the communication of a drainage system with a public sewer or other works of a sewerage undertaker shall give notice of its or his proposals to the sewerage undertaker.

(5) At any time within 21 days after a sewerage undertaker receives a notice under subsection (4) above, the undertaker may by notice to the person who gave the notice refuse permission for the communication to be made, or grant permission for the communication subject to such conditions as it thinks fit, subject to taking into account the considerations set out in subsection (6) below.

(6) The considerations which the sewerage undertaker is to take into account include whether the communication of the drainage system with the public sewer or other works of the sewerage undertaker may contribute towards one or more of the following—

(a) the overloading of the public sewer or other works of the sewerage undertaker, and the consequential overflowing of its or their contents and the flooding of adjoining property or land;

(b) the overloading of any sewage disposal works, so adversely affecting such works’ capacity to treat or dispose of sewage in compliance with any statutory requirement or consent applicable to it;

(c) increased flows in and resulting overflows and discharges from combined foul and surface water sewers, which  may have adverse effects on the aquatic environment, or which may cause the undertaker to be in breach of a statutory requirement or consent applicable to the discharge;

(d) the pollution of inland waters, the flooding of property or land, or the impairment of river or drainage systems, whether or not arising from any of the matters described in paragraphs (a) to (c) above.

(7) Any question arising under subsections (4) to (6) above between a sewerage undertaker and any other person as to the reasonableness of the undertaker’s refusal to permit a communication to be made, or the reasonableness of the conditions on which the undertaker is prepared to permit a communication to be made may, on the applications of that person, be determined in accordance with regulations made under paragraph 24 of Schedule 3 to the Flood and Water Management Act 2010.

(8) In this section, “inland waters” has the meaning given by the Water Resources Act 1991.’.

Amendment 154, in schedule 3, page 53, line 25, leave out ‘After’ and insert ‘Subject to section 106AA above, after’.

1:15 pm
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Anne McIntosh (- Shadow Minister, Environment, Food and Rural Affairs; Vale of York, Conservative)

This group follows on from the previous one so we do not need to debate it in quite such depth. It is entirely complementary to the previous group.

As the Bill is drafted, the SuDS-approving body, which the Minister explained will be a county council or unitary authority, has the right to allow the connection of a SuDS to the public sewerage system after consulting the sewerage undertaker. This matter is about the rights of a third party. Could the Minister take this opportunity to explain what is meant by consultation? Does the SuDS-approving body have a duty just to consult, or will it be bound to take notice of the water or sewerage undertaker’s opinion? Will the Minister define consultation? What will be the nature of the consultation, what response will there be to it and will any legal obligations flow from it?

The purpose of this group of amendments is to ensure that a SuDS cannot be connected to the public sewerage system without an application being made to the sewerage undertaker. That goes to the heart of our discussions about ensuring that we meet the Pitt recommendation that there ought be an end to the automatic right to connect, and that it cannot just be assumed that the infrastructure will take the weight of the water coming into the sewerage system. To put this in a positive way, we want a specific connection, with a specific application being made to the sewerage undertaker.

Under the amendments, the sewerage undertaker would, within 21 days, refuse or grant permission for the connection, subject to conditions. That is crucial. There would be a right of appeal, as prescribed by Ministers. The Minister will be delighted that we have recognised his role. He has expressed disappointment on previous occasions that we have not.

In making its decision, the sewerage undertaker would have to take account of whether a proposed connection could cause sewer overload, which in turn could cause the flooding of property or pollution downstream. That point relates to many discussions we have had, not just on the previous group of amendments. Often, people who have just moved in to recent developments face flooding or suffer pollution because of sewage coming from major new developments built nearby.

Unamended, the Bill will give the SuDS-approving body the authority to approve a connection, but no accountability for the consequences of that decision. If the connection causes flooding and pollution, the sewerage undertaker and its customers will have to meet the cost of repairing the sewer. It should fall to the occupants of the major new development, whether it is business property or housing, to pay the charge for the increased capacity that is needed for the development. With major new developments, we are not talking about one or two odd houses, but 20, 50 or 200 houses.

I think the Minister might respond by arguing that the public sewerage system will be protected by the planning system and the prescribed national standards for SuDS, which are required to be administered by local authorities—I am beginning to read his mind. However, recent Committee discussions and past experience indicate that sewerage undertakers and water companies, and their customers, cannot always rely on local authorities to protect their interests.

I grant that these are substantial amendments, which insist on a change to the existing section 106 agreements—my hon. Friend the Member for Upminster alerted us to the fact we have to make that change this morning. The purpose of amendments 152 and 153 is to ensure that the consultation will take place. Approval needs to be sought, consents need to be given and, where appropriate, conditions will be made. I have no hesitation whatsoever in recommending this small group of significant amendments to the Committee for approval.

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Huw Irranca-Davies (Parliamentary Under-Secretary (Marine and Natural Environment), Department for Environment, Food and Rural Affairs; Ogmore, Labour)

I am pleased to respond. I think we are trying to do the same thing, but a substantive point of difference seems to be emerging in the way we should do it.

The amendments would enable the sewerage undertaker to refuse drainage from some developments and highways. That could place barriers in the way of development, including housing, because it would give water companies—although I have acknowledged that they have a privotal role to play in this, they are nevertheless private companies with a commercial interest—a disproportionately powerful role in the planning and development process. Furthermore, it would allow them to reject applications for connection on the basis of sewer capacity, rather than continuing with investment in infrastructure, which is part of the normal dialogue with the regulator. The amendment would enable those companies to protect their own financial managings—I am not saying that they would—rather than provide a public drainage service fit for households and businesses. That is made explicit by the conditions, which are included in the amendment, whereby the water and sewerage company could reject the application.

I recognise that the amendment provides for an appeals mechanism, but the point remains that it could lead to delays in the planning system, and to further burdens for developers and public bodies. As stated during last week’s discussions on clause 11, under paragraph 15 to schedule 3, connections to the sewers are conditional on the drainage system’s being approved—the hon. Lady was reading my mind—by the SuDS-approving body as meeting the national standards for SuDS. I have circulated some details to hon. Members about how that process would work.

A developer would therefore be required to look for alternatives to connection or reduce the flow of the volume of surface water to the sewer. That is directly in keeping with Sir Michael Pitt’s review recommendations. However, amendments 152, 153 and 154 could mean that even if the drainage were constructed according to the approved plan and national standards, the water and sewerage company would be able to reject a connection to the sewer. After going through the hierarchy, the process and satisfying the conditions, it could then say, “Ah, but we’re not happy with it. Sorry.”

The Bill places the role of the SuDS-approving body not with water and sewerage companies, but with county and unitary local authorities. Local authorities are more responsive to local feedback and are democratically accountable for their decisions. Responsibility for SuDS fits well with the local authority’s wider role, about which I have spoken before.

I understand the need to take account of the impact of new developments on sewerage capacity—indeed, that is exactly why we have set out the proposals for sustainable drainage in the Bill. However, we must consider how we deliver the measure in practical terms. The Home Builders Federation set out its concerns about the amendments on the right to connect to the sewer and the role of commercial water and sewerage companies directly in the planning and decision-making processes. It has urged me to consider the impact on the house building sector, both in terms of the cost to developers and the supply of housing, which is a concern for all of us. That is exactly what we have done in the balance of the Bill.

In deciding on a permit, the proposed amendment would allow the undertaker to consider whether a connection would contribute to the problem of overloading the public sewers. However, the current system already provides for improvements to be made to the public sewer network to deal with capacity issues. Under section 94 of the Water Industry Act 1991, water and sewerage companies are required to “provide, improve and extend” the system of public sewers. Moreover, when a planning authority recognises a need for the public sewer system to be extended before a development can go ahead, the planning authority can seek to impose a condition on planning consent to defer the development or to seek a planning obligation from the developer. Such an obligation would require the developer to provide a contribution to the financing of the sewer network extension, so that the network covered the new development. Again, that provides for additional capacity.

However, the Bill provides for water and sewerage companies to be statutory consultees to the SuDS-approving body where a connection to the sewer is proposed. Water and sewerage companies are well placed to feed in their local knowledge and expertise about the capacity within their sewers. They can also feed into plans for future provision, and the issue of hot spots. The role of a statutory consultee will give them the opportunity to consider the drainage applications and the impact on the sewerage network.

I was asked why the approving body would not simply ignore the advice. Paragraph 11(3)(a) requires that the approving body must—not may—consult

“any sewerage undertaker with whose public sewer the drainage system is proposed to communicate”.

If it fails to consult, it would be in breach of the provisions. In terms of how the consultation will work, it is well established that the consultation must be carried out properly to satisfy the common law principles of procedural fairness, so consultation must be taken while the authority’s decision about whether to approve is at the formative stage—not at the end. The authority must ensure that the undertaker has been given sufficient information and adequate time to respond. The authority must conscientiously take the responses into account and if the authority goes against the undertaker’s advice, it will be expected to provide reasons and transparency. Ultimately, if the authority makes a decision without consulting properly, the undertaker is very likely to have it overturned on judicial review, because the authority has not carried out its duties.

With that clarification of what is in the Bill and why this is necessary—[Interruption.] I suspect that we may have a point of substance, so I will give way.

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Andrew Turner (Isle of Wight, Conservative)

I wonder whether the Minister would go over the point once again, because I am slightly confused. Is he saying that if someone brings forward an application and it is felt locally that there is a need for extensions to the sewers and so on, the matter would be determined by the planning committee? Is it possible for the planning committee to go ahead and give its permission without requiring those sewers to be input even though they are necessary?

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Huw Irranca-Davies (Parliamentary Under-Secretary (Marine and Natural Environment), Department for Environment, Food and Rural Affairs; Ogmore, Labour)

Let me read into the record once again for complete accuracy. If a democratically elected planning authority recognises the need for a public sewer to be extended, and it has concerns about it, before development can go ahead, the planning authority can seek to impose a condition on planning consent either to defer the development or even to seek a planning obligation on the developer that would say to them, “You will have to contribute to the costs of extending the sewerage network.”

After those clarifications, I will reiterate an offer that I made this morning. On clauses to which amendments have not been tabled, I would be more than happy to write to hon. Members about any concerns that they may have on stand part debates. That would help us to get through today’s business.

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Anne McIntosh (- Shadow Minister, Environment, Food and Rural Affairs; Vale of York, Conservative)

My hon. Friend the Member for Isle of Wight has identified an issue of concern. I am not sure whether the Minister’s answer has satisfied us. He said that the authority would be consulted, but he has not said that there is a duty.

Photo of Huw Irranca-Davies

Huw Irranca-Davies (Parliamentary Under-Secretary (Marine and Natural Environment), Department for Environment, Food and Rural Affairs; Ogmore, Labour)

Just to clarify, there is a duty. The authority must be consulted; it is not an optional extra.

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Anne McIntosh (- Shadow Minister, Environment, Food and Rural Affairs; Vale of York, Conservative)

I do not think that there is any dispute about the fact that the authority must be consulted, but we want to impress on the Minister that the consultation will be respected. I am not imagining in any way that this group of amendments is meant to stop major developments from happening. I do not think that the water companies are approaching it in that frame of mind. They are trying to prevent future flooding.

There is a point of difference here and we would like to press it, because again the Minister is asking us to take his word. We are saying that we need these amendments, especially amendment 152. I have read the Minister’s letter to the Committee extremely carefully, and I found it very difficult to follow, particularly the diagram, because it is a very confusing and complicated area. We believe that it is only through our group of amendments, especially amendment 152, that we will give effect to the recommendation of the Pitt review to end the automatic right to connect.

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 9.

Question accordingly negatived.

1:30 pm
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Huw Irranca-Davies (Parliamentary Under-Secretary (Marine and Natural Environment), Department for Environment, Food and Rural Affairs; Ogmore, Labour)

I beg to move amendment 69, in schedule 3, page 54, line 19, at beginning insert ‘Sub-paragraphs (3A) and (3B) apply’.

Photo of Ann Winterton

Ann Winterton (Congleton, Conservative)

With this it will be convenient to discuss Government amendments 70 to 74, 78 and 161

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Huw Irranca-Davies (Parliamentary Under-Secretary (Marine and Natural Environment), Department for Environment, Food and Rural Affairs; Ogmore, Labour)

I will try to speak to this batch of amendments as clearly and concisely as I can, so as not to detain the Committee. They are all sensible amendments. They relate to paragraphs 18 and 22 and aim to protect sustainable drainage systems within roads. Amendments 71 and 74 require the designation of roads with SuDS as

“streets with special engineering difficulties”

under section 63 of the New Roads and Street Works Act 1991. The result is that whoever is responsible for maintaining SuDS that are part of a road will be able to ensure that the drainage system is protected from damage arising from statutory work on the road, such as when utilities lay or repair cables in the road, and that any damage is repaired.

Amendment 71 requires that when the highways authority is the maintaining authority it must designate the street. Similarly, amendment 74 requires that the SuDS-approving body designates the street when it is responsible for maintaining the SuDS in that road. In most situations, works on a road do not present a problem because the local authority can protect the SuDS from damage through enforcement of property rights. However, statutory undertakers, such as utility companies, have the statutory right to place and maintain  their apparatus in the highway, and that could put the SuDS at risk and result in their not functioning as designed. Designation of a road as

“streets with special engineering difficulties”

means the road cannot be broken up or interfered with until a plan of the works has been approved by the relevant authority.

Amendment 78 seeks to ensure that the requirements are signposted in the New Roads and Street Works Act 1991 by making an amendment to that Act. Amendments 69, 70 and 73 are what are referred to in draftsmanship terms as “stylistic points.” They are simply designed to reformat paragraphs 18 and 22(6) to reflect the new subparagraphs 18(3B) and 22(6)(i) proposed by amendments 71 and 74. They do not affect the purpose or effect of the Bill.

Amendment 72 would insert at the end of paragraph 18(4),

“and a reference to a road includes a reference to part of a road.”

The amendment seeks to avoid a situation in which a SuDS is not adopted and maintained by a highways authority because it does not affect the road in its entirety—for example, where SuDS are on, in or under part of the road only. The amendment would provide clarity in that regard.

Government amendment 161 sets out a regulation-making power on the process and requirements for statutory undertakers to work with the SAB when carrying out the works on public land that affect, or might affect, SuDS. As with the previous amendments regarding SuDS and roads, the amendment extends the same protection for SuDS located in other public land from damage by a statutory undertaker.

SuDS on public land owned by a designating authority do not have the same protection, so damage to them could seriously hamper their ability to prevent surface water flooding of households and businesses. It could also lead to increased costs for the SAB, which would still be under its statutory duties to maintain the drainage system, but would find that inadvertently it has been damaged and is not functioning effectively through no fault of its own. The amendment would allow regulations to be made to require a statutory undertaker to notify the SAB that it is undertaking works and to either return the drainage system to its original state or build an alternative facility that would provide equivalent satisfactory drainage in accordance with national standards and with the agreement of the SAB.

The proposed regulations may also provide powers for the approving body to undertake work and recover its costs from the utility company, should the utility or other undertaker fail to restore the SuDS or if it has built a different drainage system that is not up to the standards or has not been approved.

I hope that amendment 69 is helpful. I look forward to moving subsequent amendments.

Amendment 69 agreed to.

Amendments made: 70, in schedule 3, page 54, line 20, after ‘adopted)’, insert—

‘(3A) ’.

Amendment 71, in schedule 3, page 54, line 24, at end insert—

‘(3B) The maintaining authority must designate the road under section 63 of the New Roads and Street Works Act 1991 (streets with special engineering difficulties).’.

Amendment 72, in schedule 3, page 54, line 27, at end insert

‘(and a reference to a road includes a reference to part of a road).’.

Amendment 73, in schedule 3, page 55, line 34, leave out ‘and’.

Amendment 74, in schedule 3, page 55, line 37, at end insert ‘, and

(i) designate under section 63 of the New Roads and Street Works Act 1991 (streets with special engineering difficulties) any adopted part of the drainage system that is a street within the meaning of section 48 of that Act.’.—(Huw Irranca-Davies.)

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Huw Irranca-Davies (Parliamentary Under-Secretary (Marine and Natural Environment), Department for Environment, Food and Rural Affairs; Ogmore, Labour)

I beg to move amendment 75, in schedule 3, page 56, line 38, at end insert—

‘(2A) At the end of section 59 add—

“(7) Schedule 3 to the Flood and Water Management Act 2010 extends the power under subsection (1)(c) of this section to sustainable drainage systems as defined in regulations under that Schedule.”’.

Photo of Ann Winterton

Ann Winterton (Congleton, Conservative)

With this it will be convenient to discuss Government amendments 76 and 77.

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Huw Irranca-Davies (Parliamentary Under-Secretary (Marine and Natural Environment), Department for Environment, Food and Rural Affairs; Ogmore, Labour)

Amendment 75 is another signposting amendment, signposting the effect of schedule 3, paragraph 25(2) in section 59(1)(c) of the Building Act 1984. Paragraph 25(2) provides for local authorities to act when non-maintenance or damage to a SuDS asset on one property is causing problems that are prejudicial to health or are a nuisance for those who own or occupy another property. The amendment would not change the purpose or effect of the provision in the Bill, but would signpost its effect under section 59(1)(c) of the 1984 Act. The amendment would harmonise both pieces of legislation and ensure that paragraph 25(2) operated effectively and fairly in practice.

Government amendments 76 and 77 are technical rather than stylistic amendments to the provision in paragraph 25(3), which in turn amends the 1984 Act. Under section 84(1) of that Act, local authorities can issue a notice requiring remedial work to a passageway or a courtyard that is not satisfactorily drained. The current drafting of that Act could unintentionally capture some sustainable drainage systems, where, for example, permeable paving is designed and used specifically to allow rainwater to drain to the ground rather than into a conventional piped drainage system. Our original amendment sought to close that loophole. However, in doing so we have created a technical issue in respect of section 84(1) of the 1984 Act, as it applies to buildings and their surroundings with conventional drainage. The amendment would rectify that by making two technical changes to the last line of paragraph 25(3), which ensure that where SuDS are built into a property or its surroundings the 1984 Act provision could not be used to require a drain to be put in its place in passageways, courts and yards, but can still apply as originally intended where traditional drainage is in place.

Amendment 75agreed to.

Amendments made: 76, in schedule 3, page 56, line 40, leave out ‘omit’ and insert ‘for’.

Amendment 77, in schedule 3, page 56, line 40, at end insert

‘substitute “(having regard both to the need to remove water from the court, yard or passage and also to the need to dispose of it satisfactorily in the course of or after its removal)”.’.

Amendment 78, in schedule 3, page 56, line 40, at end insert—

‘New Roads and Street Works Act 1991

26 At the end of section 63 of the New Roads and Street Works Act 1991 (streets with special engineering difficulties) insert—

“(5) In addition to criteria for designation prescribed under subsection (2)(a), Schedule 3 to the Flood and Water Management Act 2010 requires designation in certain circumstances (relating to sustainable drainage systems).”’.

Amendment 161, in schedule 3, page 56, line 40, at end insert—

‘Works on public land

27 (1) The Minister may make regulations requiring a statutory undertaker to notify the approving body before commencing statutory works on public land where the works will or may affect the operation of a drainage system on that land.

(2) “Public land” means land owned or occupied by a designating authority for the purposes of Schedule 1.

(3) The regulations shall define—

(a) “statutory undertaker”, and

(b) “statutory works”.

(4) The regulations may specify criteria for determining what works are to be treated as works that will or may affect the operation of a drainage system.

(5) The regulations may include provision about—

(a) timing, and

(b) procedure.

(6) The regulations may—

(a) specify consequences of failure to comply with a provision of the regulations;

(b) include provision requiring, or enabling an approving body to require, a statutory undertaker who is carrying out or has carried out works affecting a drainage system to carry out further work in relation to the system (which may include, in particular, a requirement to leave the system in a state approved by the approving body, having regard to national standards on sustainable drainage);

(c) give approving bodies default powers to undertake work and recover costs.

(7) The regulations may amend an enactment so as to introduce a cross-reference to the regulations.’.—(Huw Irranca-Davies.)

Question put and agreed to.

Schedule 3, as amended, agreed to.

Clause 33 ordered to stand part of the Bill.