'The Environment Agency must establish a pilot scheme with the aim of-
(a) auditing all private drains and sewers;
(b) assessing their condition;
(c) estimating the likely cost of adopting all private drains and sewers in 2011, and
(d) estimating the likely cost on customers' bills.'.- (Miss McIntosh.)
Brought up, and read the First time.
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'A full definition of Sustainable Urban Drainage Systems (SUDS) is "Sustainable drainage systems or sustainable (urban) drainage systems: a sequence of management practices and control structures designed to drain surface water in a more sustainable fashion than some conventional techniques (may also be referred to as SuDS).".'.
New clause 6- 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 7- No automatic connection to waste water pipes for major new developments -
'(1) There shall be no connection to waste water pipes or drains granted until-
(a) water companies have been consulted on the capacity of the existing system to manage the extra demands from the new properties;
(b) water companies have conducted a detailed assessment of the likely extra demand and the capacity of the existing system to handle it;
(c) financial responsibility for building the extra infrastructure has been apportioned, and
(d) formal planning permission has been given.'.
New clause 8- Water companies to be statutory consultees -
'(1) The relevant planning authority for all major new developments must consult equally-
(a) water companies and
(b) the Environment Agency.
(2) The consultations must-
(a) be in accordance with PPS 25;
(b) establish the impact of the proposed new development on the local drainage system, and
(c) inform the planning application process.'.
Amendment 13, in clause 42, page 27, line 10, leave out from 'constructed' to end of line 12 and insert-
'(b) provisions for preventing the public sewerage system from being overloaded,
(c) provisions for preventing discharges from the public sewerage system from being in breach of-
(i) the rights of landowners and riparian owners, and
(ii) any statutory restrictions and consents,
(d) provision about adoption of the drain or sewer by the sewerage undertaker,
(e) requirement for such security as the undertaker may reasonably require for the discharge of all obligations under the agreement.
(4) For purposes of paragraphs (b) and (c) provision must include-
(a) reinforcement of the public sewerage system, and
(b) connection points between the drain or sewer with the public sewerage system.'.
Amendment 16, in page 27, line 35, at end add-
'(8) As soon as practicable after the bringing into force of this section, the Secretary of State shall make such building regulations under section 1 of the Building Act 1984 as may be necessary for the purposes of this section.'.
Amendment 17, in page 28, line 7, at end insert-
'(4) At the beginning of subsection (4) of section 105A (schemes for the adoption of sewers, lateral drains and sewage disposal works) insert "Subject to section 105AA".
(5) After section 105A of the Water Industry Act 1991 insert-
"105AA Transfers of sewers and property rights
(1) A sewerage undertaker shall not be required to make a declaration pursuant to a scheme made under section 105A in relation to-
(a) a sewage disposal works; or
(b) a sewer or lateral drain forming part of a sewerage system which-
(i) incorporates one or more pumping stations, or
(ii) drains to an outfall, until the undertaker has acquired all the property and rights described in subsection (2) below.
(2) The property and rights referred to in subsection (2) above are-
(a) all lands, easements and other rights necessary for securing, maintaining and operating the sewage disposal works, pumping stations and outfalls; and
(b) all consents to discharge that may be required under Part III of the Water Resources Act 1991 (Control of pollution of water resources) in relation to the sewers, lateral drains, pumping stations, sewage disposal works and their associated outfalls.
(3) The sewerage undertaker must use its best endeavours to acquire the property and rights referred to in subsection (2) above, in particular (in relation to the property and rights referred to in subsection (2)(a) by offering to enter into agreements with the owners of such property and rights for the acquisition of those property and rights on such terms as may be reasonable.
(4) Any questions arising under subsection (3) above between the sewerage undertaker and an owner of any property or right referred to in subsection (2)(a) above over the terms on which the property or right should be acquired may be referred by either party to the Authority for determination under section 30A above."'.
Amendment 14, in page 28, line 12, at end add-
'(5) The requirement under Condition 2 must comply with regulations made by the Minister.'.
Amendment 18, in page 28, line 12, at end add-
'(5) After "1st September 1989" in subsection (7) of section 199 (Sewer maps), insert ", or adopted by it under a scheme made pursuant to regulations made under section 105A,"'.
Amendment 2, in schedule 3, page 50, line 1, at end add-
'(c) increasing the efficiency of the use made of available water.'.
Amendment 3, in page 50, line 16, at end add-
'(f) protecting health and safety, and
(g) increasing the efficiency of the use made of available water.'.
Amendment 23, in page 51, line 5, leave out 'county council' and insert
'local planning authority (as defined in section 1(1)(b) of the Town and Country Planning Act 1990)'.
Government amendments 53 and 54.
Amendment 19, in page 54, line 26, at end add-
'(4) The Minister shall ensure that provisions are in place which guarantee the cost of a new development's connection to a SUDS and sewerage system are born equally by the new households that benefit from the new connection.'.
Government amendments 55 and 56.
Amendment 15, in page 59, line 4, at beginning insert-
'(1) At the end of section 1A add-
"1B New drainage systems
(1) In making building regulations, the Secretary of State shall have regard to the requirements of section 106B of the Water Industry Act 1991."'.
I shall make some introductory remarks before speaking specifically to our group of proposed changes, which, if the House will bear with me, range over a number of issues.
Recommendation 10 of the Pitt report goes to the heart of this group of proposed changes and, I would argue, to the heart of the Bill's purpose and aim. In that recommendation, Pitt clearly concluded:
"The automatic right to connect surface water drainage of new developments to the sewerage system should be removed."
I hope that this is just a semantic difference, but in Committee we had quite a debate-one might almost say a major argument-about whether the automatic right to connect related only to SUDS, whether we understand SUDS to mean sustainable urban drainage or sustainable drainage systems, and new drainage. The purpose of this group of proposed changes is to give effect to Pitt's overall aim, which is what I believe the Government intended. If we are to give legal effect to recommendation 10, we have to follow through the logic of Sir Michael Pitt's argument, and that involves sustainable drainage relating not only to existing ponds, which might relate to major developments, and highway overflows, but to major new developments. I hope that I can carry the Minister and the House with me.
New clause 3 sets out the framework and scope for pilot schemes on the adoption of private drains. I have introduced the proposal because I understand that the Minister still cannot tell us the status of the investigations. Ofwat, as part of the agreed 2009 price review, has set aside substantial amounts of money to undertake those investigations, and I understand also that the Minister is in default by not having come forward with the guidance that is required to give legal effect to the transfer of lateral drains and sewers by 2011. The water and sewerage companies say that the guidance should be consulted on now, well before the election, whatever that may bring, so that the Government can meet the obligation to introduce the transfer from 2011.
I am sure that the Minister, like other right hon. and hon. Members, will have received a huge amount of correspondence from the small drainage companies-not exactly the Dyno-Rods of this world, but the small family firms-undertaking repairs that are small in size but large in number. Throughout, they have vociferously argued that they have not been properly consulted on the transfer and adoption of private drains and sewers. I should like the Minister to tell us what consultation has taken place and what assurances have been given to those small family firms. The Dyno-Rods of this world will probably continue. I do not know Yorkshire Water's position on the matter, but even a major water company, such as Yorkshire Water, would be hard-pressed to undertake all the work that will be required after the transfer. It is therefore incumbent on the Minister to tell the House where we stand, because sole traders and small, family-run firms are concerned that they might be put out of business.
Do I have to go back to my constituents-some 1,000 electors-on the Haddocks estate in Tilehurst, who have waited almost 10 years for legislation on the drains that they thought were in the public domain but by accident discovered were not, and tell them that the laudable objectives of the Pitt review and of this legislation could be delayed as a result of new clause 3, which requires a pilot scheme to be set up and that we take cognisance of the needs of some drainage companies over people who have been living with a nightmare for many years? What exactly is the hon. Lady trying to achieve?
I am calling not for a delay, but for a sense of urgency. The hon. Gentleman's Government have delayed bringing forward the guidance and the investigation that is needed. Some constituents, many of whom may be small employers in their own right, will owe their livings to these small drainage companies. They are saying clearly, not only to Conservative Members, I am sure, but to those in all parties represented in this House, that they are worried that they have not been consulted on this. I want an assurance from the Minister that they will be consulted and that there will be work for them in future. I want to know what pilot schemes have been in place and why there has not been an audit, where that is the case. I agree with the hon. Gentleman that we still do not know how many kilometres there are or where these private drains and sewers are. I am not calling for a delay-I am asking the Government to speed up and reach a conclusion so that we can meet their target date of transferring by 2011.
I am in no way impugning the hon. Lady's motives-if she wants to speak up for these contractors, she has every right to do so. My problem, as a constituency Member, is that I am looking at a new clause that says:
"The Environment Agency must establish a pilot scheme with the aim of...auditing all private drains and sewers".
In my constituency, the audit has been done, and we are merely awaiting the transfer of powers. I worry that if this provision were built into the Bill, it would put another layer of delay in the way of my constituents who have been waiting for more than 10 years for their drains to be adopted.
I think that the hon. Gentleman and I are arguing the same case. I want the Minister to confirm that the guidance is ready to go. Those in the industry-not the small contractors but the large water and sewerage companies-are saying to us that they would like to be consulted on the guidance now. The Government have a mixed record on consulting on guidance; this is their opportunity to say that the guidance is there and ready to go, but that they have had to undertake these consultations. I have seen heartbroken people, not only in my own constituency, because we are all affected by this. I can take the hon. Gentleman to see constituents who are affected by these provisions. In the constituency of my hon. Friend Mr. Stuart, people had no idea that they owned these drains and sewers until they flooded in 2007.
Does my hon. Friend agree that the lack of consultation of these people is symptomatic of the Government's lack of detailed thinking on this entire issue? Martin Salter should remember that the Government promised to make these transfers in 2007. If they had taken action then by mapping out the sewerage network, perhaps they would be in a better place today.
I entirely agree with my hon. Friend. In some areas, water companies know about this and are ready to go, but in others they are not. There are two elements involved. We need the guidance so that the industry can be consulted, and we need to reassure the smaller drainage companies that currently do this work that it is intended that they will be consulted.
In his letter to me dated
New clauses 5, 6, 7 and 8 relate to the definition and ownership of sustainable drainage. Most importantly, new clause 7 would write into the Bill that there will be an end to the automatic right to connect. It is unacceptable that major new housing developments are being built because of an arbitrary target that the Government have introduced to have a major housing programme of X million houses by X date. As a result, residents of fairly recent developments may, through no fault of their own, be flooded by sewage because it has not been possible for the water and sewerage companies to attach conditions and take the opportunity at the planning stage to ensure that the infrastructure will accept new capacity from these major new housing developments. I believe that the polluter should pay. The residents of these houses in major new developments may be affected in the event of flooding, as we saw in the floods of 2007. As we know, Madam Deputy Speaker, if sewage is coming into your home, or the Minister's home, that is polluted water, which means that the homeowner or tenant cannot return for a substantial period because the public health hazard means that it will take longer to clean up.
New clauses 7 and 8 say that there should be no automatic right to connect. The water company should be a statutory consultee on the same legal basis that has been established with the Environment Agency, which now sets conditions. Those conditions are sometimes overlooked or overruled, and then we go on to experience flooding. In this regard, we want water companies to be treated on exactly the same basis as the Environment Agency. I would argue that new clauses 7 and 8 would go to the heart of implementing Pitt's recommendation 10 in ensuring that there is no automatic right to connect. It is unacceptable that existing customers of water companies in possibly quite recent developments should be asked to pay for any potential incapacity problems if sewage backs up and then overflows into their homes. The polluter should pay. It should be open to the water companies to say to the SUDS-approving body at the time when the planning application is sought that they can accept such conditions to reduce any potential floods. I think that the new clauses speak for themselves.
The Local Government Association has expressed concern about what the layers of approving bodies should be. As the Minister is aware, if district councils are not included, that will have perverse consequences. We try to resolve that issue in this little group of amendments. District councils, which are usually the planning authorities in two-tier areas, should have responsibility for the approving of SUDS relating to major new housing developments. County councils should have responsibility, as at present, for SUDS relating to the overflow from highway spillages. It is important to have clarification in that regard.
I hope that the Minister will accept, and take the opportunity to say so, that he is over-egging the amount that local authorities will save in the transfer of private sewers. Those figures are out of date. Private sewers are in private hands-they are not the responsibility of local authorities. We are also worried that because owners of private drains and sewers know that they will be transferred in 2011, there is a strong probability that their maintenance will lapse, so that when water and sewerage companies take over their ownership and maintenance there will be serious problems as regards the state of those assets, thereby imposing an unnecessary burden on taxpayers.
In passing, I ask the Minister to clarify the implications of Government amendments 53 to 56 for the IDBs and others affected and whether, in his view, there will be any financial consequences.
Amendment 13 is, I hope, fairly clear. In our view, any development should be sustainable. If a major housing development causes an overflow and spillage from the existing sewerage system, it is clearly not sustainable because it is leading to pollution and unacceptable flooding. It cannot be sustainable if the capacity is simply not there. If amendment 13 and our other amendments in this group are accepted, we will comply with Pitt's recommendation 10.
The amendments cover universal build standards; the facilitation of access to and the operation of transferred sewage disposal works, pumping stations and outfalls; and the exemption from mapping of transferred sewers. Although the Bill provides that all new sewers and drains must be built to universal build standards, it allows the connection of new sewers and drains to the public sewerage network even if those standards have not been complied with. That cannot have been the Government's intention.
Our amendments therefore suggest that adoption agreements under section 104 of the Water Industry Act 1991 should be supported by a non-performance guarantee. They further propose making it clear that adoption agreements must encompass protection of the existing public sewerage system from overloading, and thus from being a source of cost and pollution. The approval of new sewers and drains by sewerage undertakers would overlap with the functions of local authority building inspectors, so the Building Act 1984 would need to be consequentially amended so that regulations could be made to accommodate that overlap.
Our amendments would not make express provision for ending the automatic right of connection to public sewers, but they would give water companies enabling powers to control the right to connect and hence reduce the risk of overloaded sewers, flooding and pollution.
Clause 42 will insert into the 1991 Act a new section 106B, which relates to the future of lateral drains and sewers, to which I referred earlier. We believe that the water and sewerage companies support the use of properly constructed and maintained SUDS, and that our consequential amendments are necessary to ensure that the existing system will not be overloaded by new developments. Any concerns about that problem would be satisfied by our amendments, particularly amendment 13, in my name and that of my hon. Friend Angela Watkinson. It sets out that adoption agreements should include provisions for protecting public sewer networks from becoming overloaded by the connection of new sewers, provisions for the reinforcement of the public sewer network if necessary, and provisions for water and sewerage companies to determine the point at which the new sewer is connected to the existing public sewer.
The amendment would also require the agreements to include a requirement for a non-performance guarantee or security to be provided by the developer, so that it could be called upon should they fail to complete the work or to construct a sewer to the required standards. That would allow a water and sewerage company to complete or rectify the works at no cost to itself.
The Minister might say that the Government are unable to accept the amendments because they will not enable them to meet their housing targets and because house builders will respond unfavourably. I believe that he is wrong in that regard and that if he follows the logic of our arguments, he will see that it is important to end the automatic right to connect and to recognise that water and sewerage companies should have the same legal basis as the Environment Agency. That is important not necessarily so that they can block major new developments from proceeding, but so that they can attach conditions to ensure that if there is any pollution, the developer will pass the potential costs on to the new householders. Amendment 19, to schedule 3, effectively sets that out. As I have said, it is unacceptable that through no fault of their own, existing customers of a water company should be asked to pay. Amendment 15 would make good the building regulations in that regard.
The amendments go to the heart of the Bill. I hope that the Minister will agree that schedule 3, which deals with what will happen once a potential new drainage system or SUDS has been approved by the SUDS approval body, should be amended as we suggest so that the automatic right to connect is ended. The amendments would also allow the water and sewerage companies to become the owners of SUDS, which would be consistent with their statutory duty to drain effectively. Sustainable drainage already exists between household drains and the public sewer network, and both of those would be the responsibility of the sewerage undertakers. Ownership and operation of them by those undertakers would enable them to manage the whole network more effectively and efficiently. They have the skills and resources to carry out the work, and while the Bill was in Committee local authorities made it plain to us that they did not have that. Under the amendments, the undertakers would be funded to deliver their service efficiently through the price control mechanism. I hope that the Minister and the House will be minded to support us in our quest to have that important provision written into the Bill.
The amendments address hugely important issues. I am concerned, however, that there are real problems with new clause 3, as there were with the identical clause tabled in Committee. I agree with Martin Salter, who is no longer in his place, that enforcing the establishment of pilot schemes and a long-winded assessment exercise could delay a move that residents in Cheltenham, and I would guess in York and elsewhere, need to happen as soon as possible to tackle a considerable cause of distress and cost to individual householders.
We all know that the transfer of private drains and sewers needs to take place, and that it will be done at some stage. We already have an impact assessment, and Ofwat has done work to estimate the likely impact of adoption on household water bills-up to £12 per household per annum. Perhaps Miss McIntosh does not trust Ofwat or the impact assessment to have produced the right answer, but in that case she might not trust the Environment Agency's assessment of the pilot scheme either. I am sure that the new clause was well intentioned, and it certainly addresses an important issue, but the consequence of it could be to leave residents vulnerable to continued unexpected bills running into thousands of pounds, and to cause huge problems to individual households.
I have some problem with new clauses 5 and 6, in that they both refer to "sustainable urban drainage systems". Members who were not on the Committee will not know that we had considerable discussion on the precise definition of SUDS, and after considerable debate we established that the letter "u" did not stand for "urban" in the context of the Bill but was simply the "u" of "sustainable".
Indeed, the Minister responded in that debate by saying that he could not accept the definition that we want in the Bill, which applies in Scotland, because Scottish Water is not a private company. Would he be minded to change that view if Scottish Water became a private company?
I am not sure whether that intervention was addressed to me or the Minister, but anyway, the hon. Lady did not resolve the problem of what it is difficult to avoid calling a mistake in new clauses 5 and 6, namely the use of the word "urban", so I cannot support them.
New clauses 7 and 8 and amendments 13, 16, 17, 14, 18, 2 and 3 repeat proposals made in Committee, none of which were pressed to a Division. Because important discussions on insurance and planning permission are coming up, I am not going laboriously to repeat my support for, or opposition to, each proposal, but my support or opposition is broadly in line to that I offered in Committee. However, the hon. Member for Vale of York has raised a very important issue, and I make clear my support for the unambiguous ending of the automatic right to connect. I hope that that is now common to all parties.
Amendment 23, which stands in the names of my hon. Friend Mr. Williams and I, addresses an important aspect of planning in relation to sustainable drainage. It reflects a misunderstanding in the Bill between the respective roles of county and district councils in two-tier authority areas. County councils have very limited planning functions-they most commonly relate to things such as schools and waste management, for which they have responsibility. The recent exercise of those planning functions in Gloucestershire did not go entirely smoothly, and I am not filled with confidence when it comes to county councils getting involved in a matter such as sustainable drainage, in which they do not have a lot of planning experience.
The risk of the current arrangements in the Bill is that developers will need to get planning permission from two different local authorities-the county council, in its lead flood-risk management role, as reflected in schedule 3, and the district council, which would have to happen anyway. That could further exacerbate the confusion of responsibilities and delay the approval process. That serious issue needs to be addressed. It is better by far in two-tier areas to default to the normal planning authority, which is the district council. I humbly submit that proposal to the consideration of the Minister and the House.
Government amendments 53 and 54 look eminently sensible. They reflect concerns expressed by the hon. Member for Vale of York in Committee and it seems sensible to support them.
I am sympathetic to amendment 19, which was tabled by the hon. Lady. Certainly, what she just said in support of it was correct. I am slightly puzzled by the drafting, and we might need further definition of the word "new", which I could imagine being hotly contested in practice, but the proposal addresses an important issue.
Government amendments 55 and 56 are largely technical, and I have absolutely no objection to them.
Finally, amendment 15, which is also in the name of the hon. Lady, makes an eminently sensible link between the Bill and building regulations, which I am happy to support.
I congratulate my hon. Friend Miss McIntosh on moving this important group of proposals. I was not fortunate enough to be selected to serve in Committee, but I have had the opportunity to review the Hansard reports of its proceedings in some detail. She is right that there are still far too many unanswered questions on a matter that is particularly important to my constituents in Basingstoke. I should like specifically to speak to new clauses 3, 7 and 8, and amendment 13. That is not to say that the other proposals are not important, but given the lateness of the hour and the other issues to be debated tonight, I will confine my comments to those.
The proposals are important to all those who suffer from, and face the problem of, surface water or sewage water flooding in or around their homes, particularly when we consider the unsustainable approach that the Government have taken to house building in my area and those of other hon. Members. The Government have been ready to build houses, but they have not been ready to ensure that the services available locally can meet their needs. I experience that problem regularly in my constituency, especially in connection to river pollution, water supply and sewerage.
On new clause 3-my hon. Friend's recommendation for pilot schemes-frankly, the Government have been dragging their feet for more than three years, which is adequate time for a much more robust analysis of the problem that will be transferred to water companies. I read the report of the debate in Committee closely, and the Government's responses were unsatisfactory. I am sure the Minister has reviewed those and come to the House today with more detail, to satiate hon. Members' questions.
Obviously, I support the transfer of sewerage systems to the sewerage companies, but that needs to be done correctly. Like Martin Salter, I have a number of estates in my constituency that have private networks. A number of householders are left in great difficulty when, for example, the roots of trees penetrate the sewerage pipes and create blockages, and flooding ensues. We know that there are 180,000 km of private sewers and natural drains in the country, so my constituents are not the only ones to suffer in that way.
My hon. Friend's proposal for a pilot scheme to assess the costs involved in transferring the network to the water companies, which she made in Committee and today on Report, is absolutely right on a number of levels. First, we need to know whether water or sewerage companies can cope with the problems that they are to be given. My hon. Friend was right that there is probably very little maintenance going on at the moment, because people know that the asset will be transferred. Certainly, poor maintenance is a considerable historical problem. Secondly, customers will want to know exactly how the transfer will hit their bills.
Thirdly and importantly, we need to know how much money the measure will free up from local authorities. My local authority does not see as its responsibility the alleviation of flooding problems when they occur. The payments to contractors, which my hon. Friend mentioned, are made either by private householders or by social housing landlords, who are often the people affected by those problems in my constituency. The question of how much money is being freed up in local authorities needs to be answered in far more detail, because we would not do anyone any favours if the transfer of the network is not done properly. As I said, the sewerage system is in poor condition. We need to ensure that any new approach is robust, and that we know what is to be transferred.
New clause 7, which would end the automatic right to connect, and new clause 8, which would make water companies statutory consultees, are absolutely right. We need to ensure that when new housing, especially major development, is being discussed and planned there is sufficient capacity in the system to deal with the resulting sewage, and local residents need to be assured that they will not be left disadvantaged financially or in any other way.
I have talked to water companies about this issue, and the problem is that they look at the theoretical capacity of the water system when they assess whether it is possible to link more houses to it. The problem is that many households are illicitly tapping into the sewerage system to drain their ground water, and that has created many of the problems of sewage flooding and overloading with which hon. Members are familiar. I urge my hon. Friend to ensure that water companies look not only at the theoretical capacity in their sewerage system, but at the actual capacity, and take into account the large amounts of ground water that find their way into our sewerage system, causing flooding problems for local residential areas and for sewage works trying to cope with excess capacity.
I commend amendment 13 to the House, because it also addresses the issue of overloading of the sewerage system. We need to ensure not only that the sewerage pipes can cope with the amount of material from local residents, but that the sewage works can cope. In my constituency, our sewage works regularly cannot cope with the amount of sewage that is being pumped into it. As a result, our local river is overloaded and exceeding EU pollution levels, but the local authority does not appear to be able to do much about it, because of the lack of involvement by sewerage companies in the decision-making process on house building. That is unacceptable, because it leads to unsustainable development. I urge my hon. Friend to press her amendments to a Division, because if they were included in the Bill they would really help the Government to achieve a properly sustainable approach to sewerage and water for new developments for the first time.
Hon. Members will know that I have spoken on flooding issues at various times in my parliamentary career. I wish to focus on the particular issue of private drains and the implications for floods.
Hatton is a large village in my constituency, adjacent to the River Dove, and it flooded severely in 2000. That flood provided an object lesson in many aspects of dealing with floods. I will not go into all of them, but one critical issue related to the analysis of surface water drainage from individual properties. In many cases, householders had carried out their own works-probably innocently, as they could not have imagined that that would cause difficulties-to the front of their properties and on private driveways, which adjusted surface water drainage so that it ended up in the highway drainage system. In other instances, the topography of the village-it is very flat and close to the river-meant that the drainage system was challenged as soon as the water table rose.
When we examine a planning application that involves the use of surface water drainage being applied by a householder, we have to ensure that that is genuinely sustainable in reasonable circumstances. There are situations in which that simply will not work. We also have to be honest with residents about the consequences of the often small works that they carry out for themselves on the sustainability of the public drainage system. When the Minister responds on this group, I would be interested to hear his thoughts on how we might empower the water and drainage businesses so that they audit, effectively and regularly, the exposure of their system to supposedly private drainage systems.
I have another case study that has caused my staff and me a fair amount of work recently, although to my constituents' gain. In Church Gresley in my constituency, on a large housing estate mostly built in the 1990s, an observant constituent noted that he was paying for drainage and contacted his water company to say that he thought that he was draining his own property. So he was, and an audit was carried out. I arranged for the water company to test drainage systems throughout the estate, and that test discovered an erratic network-on this relatively new estate-of connections, with some houses being connected to the public system and some draining to their own systems. In both cases, there was a totally inadequate transfer of information between the developer of the estate and the water company, so that it was not aware of what it was supposed to be draining or whom they were supposed to be charging. The company refunded some residents, as allowed under the statutory powers for refunding drainage charges that should not have been charged, but it was then discovered that the entire system had not been adopted. It was therefore unsurprising that the water company did not have a proper map of the drainage system.
I should point out that the location of the estate means that the drainage system would be tested in severe rainfall. It is at the side of a substantial hill-that area of the town slopes heavily-and knowledge of how the drainage system works might be material at certain times. One has to ask how thorough is the integration between the planning process and the functions of the developer-in this case the water and drainage company, Severn Trent, was remiss in allowing the estate to be constructed without any proper plans.
My last local example-I have plenty of opportunities to consider these issues-is from the village of Hilton. The area in question is well established, so the remarks made about this Government giving planning consent that puts pressure on the drainage system do not apply. The houses were built many years ago and are on a private drainage system, although the residents are anxiously awaiting its transfer to Severn Trent. Fortunately the residents have not been pressed so far for repairs and other obligations, but they might be. That issue causes anxiety to individual residents, who worry about their liability for the repair of the drainage system, and also raises the issue of how genuinely separate such systems are from the public drainage network. Sometimes, consents have been granted that agree that the surface drainage works effectively in a location, when in fact it does not. In flood conditions, we soon find out where the faults are. So we need a robust testing process when such agreements are entered into at the planning stage, as well as a monitoring process that ensures that when residents carry out works-usually innocently, as I am not making any allegations-they do not prejudice the important drainage system on which a community relies.
I am tempted to say that new clause 3 and the Bill are for the people of Hatton and Hilton in the constituency of my hon. Friend Mr. Todd, and of the Haddocks estate, in the constituency of my hon. Friend Martin Salter, and for every Member speaking today to try to remedy some of the problems that have rightly been identified. I am never one to rise to things-I am an eternal optimist and a fairly convivial chap-but Miss McIntosh has tempted me to respond to the accusation that the Government are laggards. The same was said during the debate on the Marine and Coastal Access Act 2009, but we are now introducing the marine conservation zones. After two or three consultations-I cannot remember the exact number; I was involved in them all, some times as a Back Bencher when they first started, so I know its importance to constituents, as all hon. Members have said-it has fallen to me as the Minister to deal with the tricky and complex issue of the transfer of private sewers.
I pay tribute to the work of my predecessors in getting to this stage-I shall come to some of the consultation in a moment-and bringing the provisions forward in good shape. That means that any hitches will be less likely. The scale of the transfer is unprecedented, so we need to get it right; I shall come to that point in a moment, too. I will take the criticism that we are slightly late, but I will also take the plaudits for the Government for getting the job done properly.
I shall get straight to the meat of the amendments and new clauses, although I do not know whether I can persuade the hon. Member for Vale of York on this matter. I was trying to remember who wrote the song, "Oh Lord, Please Don't Let Me Be Misunderstood", because I think that I may be misunderstood here. Nevertheless, I will do my best to explain the rationale behind my response to the new clauses and amendments.
New clause 3 would require the Environment Agency to establish a pilot scheme, as has been mentioned, to ascertain the extent and condition of private sewers and drains, and to estimate the likely costs of the transfer to water and sewerage companies. Hon. Members have already expressed some concerns about that; I ask the House to allow me to express mine. The proposal would impose an unnecessary and a disproportionately costly new burden on the EA, as we discussed in Committee. The EA has no direct responsibility for private sewers, so the impact on it would bear no comparison to any real benefit.
To reiterate what I said in Committee, the latest estimate from UK water industry research into the costs of a full audit to ascertain the extent and condition of private sewers is in excess of £1 billion. Even to undertake pilot schemes would be proportionately extremely expensive-and all before a single penny is spent on the cost of repairs. It would also duplicate work that is already more appropriately undertaken by water and sewerage companies and their independent economic regulator, Ofwat. The estimates were set out in the impact assessment accompanying the Government's announcement in December 2008 of their decision to proceed with the transfer.
Moreover, the new clause is entirely unnecessary. One water and sewerage company has done some preliminary work in its area and found that, although there were more private sewers than it expected, they were also in better condition than it expected. Another experienced difficulty in getting property owners' co-operation. Pilots are not a new idea. The Government consulted on them in July 2007, and 70 per cent. of respondents rejected the case for pilots. The stakeholder steering group assisting DEFRA's review of private sewers agreed with that view. I do not accept, therefore, that pilots-well intentioned as the idea is-are likely to yield sufficiently useful information to warrant the cost and, as mentioned, the delay in bringing the benefits of transfer to householders. The cost of an audit would be better spent tackling the real problems with private sewers.
Amendment 17 refers to the transfer of sewage treatment works alongside other assets and access rights.
The Minister has focused on the pilot schemes, but will he address my remarks about the guidance and the publication of the guidance and the regulations? It is the mood of the House that we should proceed to transfer, but Opposition Members are getting a clear message that there has not been proper consultation on the guidance. The private contractors currently doing the work are extremely concerned about whether there will be such work in future. The industry must know what regulations it will be asked to comply with.
I agree with the intention behind the hon. Lady's comments, but not with her amendments. Let me deal directly with the issue of consultation, which we dealt with in Committee as well, and the allegation that water companies and contractors have not been consulted. Actually, they are key members of the private sewers review stakeholders steering group, and we have been working closely with them. There were consultations in 2004 and 2007-I will come to the individual contractors soon-to which water companies responded. They also worked with DEFRA in the follow-up to the consultations.
I would like to make an interesting point about the concerns raised. I have seen letters as well. Letters have been sent to the Department-from smaller drainage contractors, family firms and so on-saying what the proposals will mean for them. I cannot say precisely what they will mean, but as I have said previously, I think that there will be opportunities, post-transfer, because the work will need to be done. The number of small contractors still operating in Scotland, which is slightly ahead of us on this, makes interesting reading, because it is comparable to the numbers that were operating before. The Scottish figures are also comparable to the numbers operating in similar city areas in England-for example, we can compare Edinburgh to a similar-sized city in England. Actually, there has not been a shake-out; they have responded. So I anticipate that there will still be a market for small operators.
The hon. Lady rightly raised the issue of consultation on private sewers. In December 2008, we announced that the transfer would take place from 2011, and we are working to that timetable. We have to consult on the affirmative resolution regulations that she mentioned to make transfer happen, and we will do that in the next few months. I do not have a specific date, I am afraid, and we do have an election right in the middle of it, unfortunately-I say unfortunately, but I am pro-democracy of course. However, it does cause some problems with setting a specific date. The position for Wales is set out clearly in the strategic policy statement. We intend, therefore, to bring this forward in the next few months-by which I mean this side of the summer. I cannot promise that it will be this side of an election, however, because that is out of my hands.
The concern behind amendment 18 is that sewerage undertakers should not be liable for failure to keep records of the assets that they inherit as a result of the transfer. The EA is concerned that such a blanket exemption, as set out in the amendment, could make it difficult to gather a full understanding of the impact of private sewers and lateral drains on sewerage undertakers' systems. It is the Government's intention to look carefully at that as part of the transfer. However, in any event, should any complaint about a breach of duty be made, Ministers could reasonably take into account whether a company was acting appropriately in deciding whether enforcement action might be appropriate.
Accepting amendment 17 might limit the extent, scope and speed of transfer and the Government's regulation-making power on transfer schemes, which is subject to the affirmative resolution procedure. Following any transfer, the undertakers will have statutory access rights provided to them when laying or accessing their own infrastructure. Those rights were granted expressly by Parliament and have been considered by successive Administrations to strike the right balance between the interests of landowners and those of sewerage companies. Where they wish to obtain additional rights, they can seek to agree them with the landowners.
I do not know whether others in the House are aware of this, but the Minister had a series of discussions between the end of the Committee stage and the Bill's remaining stages today. It would be extremely helpful, first, if he would take this opportunity to report to the House on the reassurance that he has given the water companies, so that we can have on the record the exact statement that he wished to make to them-the one that he assured them that he wished to make to them-and, secondly, if he could confirm that that is said on the basis of Pepper v. Hart, so that if we do not press our amendments, we shall have an assurance that his statement will be justiciable and can be relied on as an indication of how the Bill is to be interpreted subsequently.
Indeed. I shall be happy to respond to that point in full. However, let me make a little bit of progress first, and then I shall turn to it directly.
Amendment 13 specifies a number of issues that must be included in agreements for the adoption of new foul sewers and lateral drains. Amendment 14 provides for associated regulations. Although stakeholders advised us to retain adoption agreements under section 104 of the Water Industry Act 1991 as the vehicle for the adoption of new foul sewers and lateral drains by undertakers under the new mandatory regime, we do not intend to specify in primary legislation the range of details that must be covered in the agreement. That preserves the flexibility needed to deal with site-specific issues, and avoids placing undue burdens on small developers that do not currently use the adoption process. Where there is a dispute about the content of an agreement, the matter can be taken to Ofwat for determination. We think that that is the right approach to promote innovation and site flexibility.
Amendments 15 and 16 would require new building regulations to be made as necessary for the purposes of, and taking account of, new section 106B of the 1991 Act, which provides for new mandatory construction standards for new foul sewers and lateral drains connecting to the public sewerage system, and for their automatic adoption by sewerage undertakers. I would like to reassure hon. Members that the proposals in clause 42 are not intended to require any changes to building regulations. Building regulations and building control will continue to apply to drains on a development connecting to the adoptable lateral drains and sewers, but not to the laterals and sewers themselves, which will be subject to agreement with, and control and inspection by, the water and sewerage companies. That activity will take place alongside the building control inspection process, but not overlap it. An evaluation of the relevant building regulations will start this year and will consider what new guidance might be needed on the changes that clause 42 introduces, to clarify how the building control system will work alongside them.
The hon. Members for Vale of York and for Upminster (Angela Watkinson) also tabled new clause 7, which seeks to restrict the connection of waste water drainage from new developments to the public sewerage system by making it subject to planning approval. New clause 7 would require water and sewerage companies to be consulted before approval on the capacity of their systems to manage the extra demand. It would also seek to ensure that the responsibility for meeting the cost of creating any additional necessary infrastructure is apportioned. Sir Michael Pitt's review of the 2007 floods recommended that
"the automatic right to connect surface water drainage of new developments to the sewerage system should be removed".
The Bill does just that. Drainage systems must be approved by the SUDS approving body-the SAB-as being in line with the national standards for drainage systems before any residual connection to the public sewer is allowed, and then only as a last resort-I keep repeating this-after SUDS have been employed to reduce the flow to the sewer. Water and sewerage companies will be statutory consultees in the SUDS approval process.
I now turn to- [ Interruption. ] Sorry, I will come back to that.
The hon. Members for Vale of York and for Upminster have also tabled several amendments on the definition of SUDS and drainage systems. New clause 5 seeks to insert a further definition of sustainable urban drainage systems into the Bill. We debated that issue fully in Committee, and I should like to restate our view that we see no desirability in a definition that constrains the idea of sustainable drainage to urban areas. As 2007 demonstrated, surface water flooding is both an urban and a rural issue, and SUDS can be used in both rural and urban areas, and everything in between. Therefore, the proposed amendment is more limiting.
Amendments 2 and 3 seek to introduce the idea of water efficiency into the definition or application of SUDS. We understand the intention behind amendment 2. However, the current definition sets out what a drainage system is, whereas the amendment attempts to insert a depiction of the ideal characteristics of a drainage system. That has a consequential impact on the remainder of schedule 3, which refers to the approval of drainage systems. By inserting a reference to water efficiency, amendment 3 highlights another potential side benefit of SUDS for water use. We should all agree that we need to do more to reduce water use generally, especially in areas of water shortage-and of course, clause 36 also addresses that issue. However, I suspect that in amendments 2 and 3, hon. Members are referring to the use of rainwater harvesting as a sustainable drainage technique, which is something that I am pleased to have in my house; I have to say that it works very well and has been well worth it.
Rainwater harvesting is indeed an acceptable SUDS technique. However, before making it a requirement of SUDS, we should understand the costs, benefits, practicalities and carbon impacts. The issue will therefore be addressed in the development of the national standards against which any proposed drainage system will be judged. I am not ruling out rainwater harvesting systems as a potentially beneficial SUDS technique-indeed, I love them-and especially not in some areas, but it is not necessary to drive that through primary legislation.
The hon. Members for Vale of York and for Upminster have also tabled new clause 6, which would make provision to state which body has to be responsible for the ownership and maintenance of SUDS. As we debated in Committee at some length, the Bill is clear on that point. Paragraph 6 of schedule 3 already specifically places the responsibilities and duties of a SAB-a SUDS approving body-on the unitary or county authorities. Paragraph 6 also allows the Minister to appoint by order an alternative body to approve drainage systems in a specified area. The SAB would have responsibility for the approval of drainage systems in new developments and redevelopments to the national standards for sustainable drainage. The SAB is also responsible for adopting and maintaining SUDS that serve more than one property, where they have been approved.
I am sure that the Minister will find his place and respond to my earlier queries in due course, but on that point, will the water and sewerage companies be consulted on the building standards? They are keen that they should be, so it is important that we should have that assurance.
Yes, absolutely. The hon. Lady makes a good point. I can confirm that the water and sewerage companies will indeed be consulted. Their input will be critical. I will return to the points that she made in her opening remarks that I have not already addressed, because she made quite a few.
To return to new clause 6, adoption does not need to confer ownership, as the new clause would seem to imply, but simply a responsibility for maintenance. The maintenance duty for adopted SUDS will ensure that they continue to provide effective drainage for the properties that they serve.
The hon. Members for Vale of York and for Upminster have also tabled amendment 19, which would require the Minister to ensure that provisions are in place to guarantee that the cost of a new development's connection to a SUDS and a sewerage system are borne equally by the new households that benefit from the new connection. I presume it is intended that the Minister would make such provisions by regulation.
If the intention of the amendment is that the Government should find a way of funding the long-term maintenance costs of SUDS, I can reassure the House, and I can reassure the hon. Lady, as I did in Committee, that we are actively considering the issue. As the hon. Members who moved the amendment know, in Committee I also undertook to formalise arrangements with the Local Government Association to keep under review the costs falling on local authorities. That includes SUDS and the wider range of burdens. I reported earlier in the debate that my officials and officers of the Local Government Association have been meeting to take forward this commitment, and that I have written to Councillor Gary Porter, the environment chair of the LGA, proposing formal terms of reference.
The hon. Members for Vale of York and for Upminster also tabled new clause 8, which seeks to ensure that the relevant planning authority for all major new developments consults water companies and the Environment Agency. It further requires that these consultations are in accordance with planning policy statement 25, that they establish the impact of the proposed new development on the local drainage system, and that the consultations inform the planning process. We debated that thoroughly in Committee. As the House will be aware, the Environment Agency is already a statutory consultee in England for planning applications in flood risk areas, and for all applications for major developments. These arrangements are set out in the table in article 10 of the Town and Country Planning (General Development Procedure) Order 1995, as amended.
I am delighted that the Minister is confirming what we already know about the Environment Agency being a statutory consultee on that basis. Why would he not agree to water companies being statutory consultees on exactly the same basis, to avoid the issues that were raised by my hon. Friend Mrs. Miller and Mr. Todd?
We are trying to achieve the same end, and we debated the matter in depth in Committee. The water companies are part and parcel of the process and need to be consulted in connection with the flood risk management function, but, as was explained in detail in Committee, we do not consider it appropriate to make them the subject of the same statutory duty of consultation.
The hon. Members for Cheltenham (Martin Horwood) and for Brecon and Radnorshire (Mr. Williams) tabled amendment 23, which seeks to amend paragraph 6 (1)(b) of schedule 3, so that if there is no unitary authority for an area, the role of the SUDS approving body would be given not to the relevant county council but to the local planning authority. Again, we debated that in Committee.
I will not restate the whole debate, but we consider that SUDS approval and adoption responsibilities fit together, leading to robust well-designed SUDS that can be efficiently and effectively maintained. Placing these functions at the county council level fits well alongside those councils' existing responsibilities for highways maintenance. We expect many SUDS to be located in or alongside roads, especially in dense urban areas.
More importantly, county councils will have wider responsibilities as lead local flood authorities under clause 6(7). County councils also have responsibility for surface water management planning, and on a simple geographical basis, have a much wider overview of surface water and flooding issues. Placing the SUDS approving body-the SAB-at the county, rather than the district, level will mean the SAB has the more strategic overview and expertise in determining drainage applications.
Of course, not all drainage applications needing approval by the SUDS approving body will also require planning permission. However, where planning permission is required, we have made the SAB a statutory consultee to the planning process and we have clearly mapped out how the process would work. Finally, as I said in Committee and reiterate now, there is nothing to prevent unitary or county local authorities, in their role as SUDS approving bodies, from transferring, by agreement, their approval functions to a local planning authority. However, the SUDS approving body would retain responsibility and liability for SUDS, so accountability stays there.
Finally, I shall deal with the Government amendments in this group and make some additional points. In Committee I agreed to consider an amendment tabled by the hon. Members for Vale of York and for Upminster which would make internal drainage boards statutory consultees to SUDS approving bodies. In response, amendment 53 provides for that to be done.
On amendment 54, in Committee I agreed to consider an amendment tabled by my hon. Friend Dr. Blackman-Woods on regulations covering the timing and procedure for applications to the SUDS approving body. As I said in Committee, it seems eminently sensible to enable the Minister to make regulations about the timing and procedure for determining applications for approval, and also that the regulations should be able to specify what should happen if the timetable is not complied with. Such a power will enable the Government to ensure that the SUDS approval process is fully in line with the timetable for determining planning applications. I therefore commend the amendment to the House.
Finally, amendments 55 and 56 are minor technical amendments. Amendment 55 makes the drafting of the Bill internally consistent. Amendment 56 closes a small loophole in the provisions on adopting sustainable drainage systems. As the Bill stands, those parts of a drainage system located partly on and partly off a road are maintained by the SUDS approving body and the Highways Authority respectively. Both must maintain the SUDS to national standards and approved proposals.
However, we need to be clear about arrangements to maintain, to national standards, SUDS located entirely in a publicly maintained road. This situation will be extremely rare but must be captured for completeness. Without the amendment, the road that is also an entire SUDS would be maintained to function as a road, but not as a SUDS, potentially leaving properties served by those SUDS with inadequate drainage. I hope those comments are helpful.
I now turn to the work that has been done with stakeholders on the mandatory build standards. The water industry has provided voluntary criteria to developers for the adoption of sewers since December 1981. However, there are often no discernible benefits for the water company or developer in pursing the adoption process, and as we have heard, that results in homeowners ending up with the liability for those assets. DEFRA has been working across a range of stakeholders including, but not exclusively, the Home Builders Federation, the National House-Building Council, Ofwat, the Consumer Council for Water, the Local Government Association, Communities and Local Government and Water UK among others to provide a basis for consultation on a mandatory build standard for gravity, foul sewers and lateral drains. We will consult similarly on SUDS, and we are already engaging with stakeholders on national standards for SUDS.
On the discussions with Water UK, I am not sure that the hon. Member for Vale of York raised any particular point, but I wrote to all members of the Public Bill Committee recording the results of the meeting. Let me quote from letter that went out on
"We had a good discussion about the sustainable drainage provisions. I clarified the arrangements for SUDS maintenance, including the statutory duty on the SUDS Approving Body to maintain SUDS to national standards...We discussed the sewerage undertakers, listed the statutory consultees to the SUDS Approving body".
I will finish there and give way to the hon. Gentleman.
We have little time remaining, so I want to ask the Minister a question. He mentions many consultations, and there is much public concern about these issues. Does he agree that two important issues have not been discussed tonight: insurance and planning permission for houses and new developments in flood-risk areas, which are both matters of huge public concern that we should be able to debate?
Indeed. I have dealt with many of the issues and I am coming to the end of my comments. I am checking whether there are any substantive issues that I have not yet dealt with. I have dealt with internal drainage boards and with most other significant points. I would be happy to write to hon. Members who have taken part in the debate. With those words, however, I recommend the Government amendments and invite hon. Members to withdraw their amendments.
I am extremely disappointed by the Minister's latter remarks because it was our understanding, and that of Water UK and the other companies he met, that he was going to make a statement on the record this evening that could be potentially justiciable. He has not gone as far as they would have liked, as they wanted to see our amendments written into the Bill. The Minister may have written to members of the Committee, but that does not include all the participants in the debate today, including my hon. Friend Mrs. Miller and Mr. Todd. What has happened, as I understand it, does not meet the terms of the Pepper v. Hart case, which we relied on when we were in government in the past.
I wonder whether the points that the hon. Lady raises, on which Water UK seeks clarification, relate to this particular group of amendments or to a later group.
My understanding is both. In this group, the issue of connections is relevant. If this is a misunderstanding, the record will show that the Minister had the opportunity to comment on automatic connections. There are two issues here, although the Minister satisfied the industry on one of them when he said that water and sewerage companies will have the opportunity to be consulted on national building standards. That is clearly on the record. However, the fact that the approving body should be compelled to include the requirements of the sewerage undertaking, identified through a statutory consultee response provided by the sewerage undertakers as part of the approvals process in the final approval of any sustainable development connecting to the sewer, will not now be written into the Bill.
I think that this may be a genuine misunderstanding. If the hon. Lady seeks confirmation that water companies are statutory consultees of the SUDS approving body, I can give that confirmation. I can also confirm that they must have regard to the water companies' advice. The SUDS approving body can set conditions on approval based on that advice, but water companies have a general duty to provide, maintain and extend the public sewerage system in their areas.
That is very helpful, but I still do not quite understand the logic of what the Minister said in responding to our new clauses and amendments. It seems that the Government are accepting internal drainage boards and the Environment Agency as statutory consultees but refusing to accept water and sewerage companies, although it is those companies that will be affected in the event of an overflow and a lack of capacity.
I think that there is common ground between us and the Liberal Democrats on flexibility. I readily agree that county councils should be responsible for sustainable drainage systems in relation to highways. However, we seem to have reached an impasse owing to the Minister's refusal to accept that district councils are best placed to be recognised as the approving body, particularly in relation to major housing developments and sustainable drainage systems connected with them. I fear that we will experience difficulties in implementing the Bill unless the Minister changes his view.
That is, I think, a genuine point of difference. I have explained, although possibly not to the hon. Lady's satisfaction, why we consider it appropriate to ensure that the buck stops at unitary authority level, while allowing those authorities, should they wish and with agreement, to transfer some of their responsibility to lower-tier authorities. That flexibility is there, but I am adamant that the buck should stop at one particular level, in line with the spirit of Pitt.
I think that we shall have to agree to disagree, but like other hon. Members, I want the House to be able to deal with the remaining groups of new clauses and amendments, so I beg to ask leave to withdraw the motion.
C lause, by leave, withdrawn.