A watershed moment: England’s adoption of Schedule 3
Across the UK, climate change and urbanisation are putting mounting pressure on aging sewage infrastructure. With the country facing increasingly extreme weather, particularly rainfall events, Victorian sewage networks are buckling under the strain. As a result, storm overflows are being discharged more frequently into British rivers, lakes and oceans. In 2021 alone, there were over 370,000 discharges for a combined 2.7 million hours. Every second represents the release of untreated sewage into the country’s waterways, so the health and environmental impacts of the practice have become a source of intense scrutiny.
Despite mounting public concern, new developments in England still have an automatic legal right to connect surface water drainage to nearby sewage infrastructure – increasing the burden on aging infrastructure. But recent developments mean that’s likely to change, with England set to adopt Schedule 3 of the Flood and Water Management Act 2010 and make sustainable drainage systems (SuDS) a mandatory requirement for nearly all developments. So, what will this change mean for developers in England?
A missed opportunity: England and Schedule 3
After 2007’s historic floods, the Flood and Water Management Act 2010 was put in place to establish comprehensive flood risk management for people, homes and businesses. Along with mandatory SuDS in relevant developments, Schedule 3 of the Act removed the automatic right to connect new surface water drainage systems to public sewers. Instead, a SuDS advisory body (SAB) would have power to deny connections based on how well a developer demonstrated they had met the newly-created National Standards for Sustainable Drainage.
However, England didn’t adopt this game-changing Schedule. Instead, it amended the National Planning Policy Framework, making SuDS a mandatory part of planning, but allowing developers to object to SuDS if these would compromise their ability to fully develop the site. Under this approach, the Local Planning Authority and the Lead Local Flood Authority (LLFA) must approve drainage schemes, but the onus is on the developer to explore adoption and ownership possibilities.
SuDS learnings from around the UK
Like England, Scotland chose not to adopt Schedule 3, but its legislation has a long history of building SuDS policy into local planning laws through legislation like The Flood Risk Management Act 2009 and The Water Environment (Controlled Activities) (Scotland) Regulations 2011. The Scottish Environment Protection Agency (SEPA) holds responsibility for the protection of the water environment and stipulates that SuDS are built into all new developments. Under SEPA’s conditions, if a developer constructs SuDS to Scottish Water’s standards, Scottish Water has a duty to take responsibility for them.
In relation to Scotland, Richard Ashley, Professor of Urban Water at Sheffield University says, “ [Scotland has] always been driven by water quality rather than flooding and, therefore, they’re much further ahead of the game because they’re implementing SuDS schemes at a huge scale”.
Wales, on the other hand, fully implemented Schedule 3 in January 2019. This made SuDS mandatory on all new developments of more than one dwelling house, or where the construction area is 100sq/m or more. As a result, developers must demonstrate their compliance with Schedule 3 in planning applications submitted to dedicated SABs, usually part of the local authority. Working with developers to ensure all six SuDS factors are met in the design process, SABs then monitor the installation of SuDS and then adopt the surface water scheme into the local authority assets .
This approach gives the body that will ultimately be responsible for the SuDS control over their design and implementation.
As Martin Lambley, Product Manager for Urban Climate Resilience at Wavin points out, “ultimately [the local authority] are the biggest stakeholders, so why shouldn’t they have management of it? Community floods are the responsibility of the authority, so this gives them the power to make sure it’s done properly and then gives them control over it.”
Wales effectively disconnected water company shareholders from the provision of ecologically sound water services with thorough reform of water companies, the regulatory body Natural Resources Wales, and its local authorities.
A rising tide: pressure to adopt Schedule 3
England’s weaker position ultimately led to a flood of criticism. Post-legislative scrutiny in 2017 revealed that, in England, “many lower quality SuDS systems are being built which miss opportunities to deliver optimum benefits”. What’s more, since failing to adopt Schedule 3 in 2010, more than 1.5 million English homes have been built without recommended SuDS. With only 8% of people agreeing that the current English legal framework drives effective SuDS, and numerous experts and organisations calling on the government to extend Schedule 3 into England, this contentious issue has been in the spotlight regularly in recent years. But what caused the tide to turn on Schedule 3?
The National Infrastructure Commission Report
After a government-requested independent investigation, the National Infrastructure Commission published a report in November 2022 stating that “by the end of 2023, government should implement Schedule 3 of the Flood and Water Management Act 2010 and update its technical standards for sustainable drainage systems”.
A letter to the Prime Minister
Shortly afterwards, in December 2022, an open letter signed by over 40 experts and academics was sent to Prime Minister Rishi Sunak urging him to consider a review. They cited a “wasted decade” for stormwater drainage improvements and sought to break down some of the common misconceptions around SuDS, and key objections to Schedule 3. Among the letter’s arguments, the experts claimed that well-planned SuDS “can be cheaper than conventional drainage to construct and maintain”, “help address environmental considerations at all development scales whilst fundamentally improving drainage”, and “are internationally recognised as the most effective way of managing both surface water flood risk and storm-related pollution”.
A fresh look in 2023
On January 10th 2023, DEFRA responded, publishing its review of the benefits and impacts of making SuDS a legal requirement for new developments. The government accepted this and in an accompanying statement, Environment Minister, Rebecca Pow, said: “The benefits of sustainable drainage systems are many – from mitigating flood risk by catching and storing surplus water and reducing storm overflow discharges, to enhancing local nature in the heart of our developments and helping with harvesting valuable rainwater. Taking a more consistent and effective approach to sustainable drainage systems will improve the resilience of our drainage and sewer infrastructure, while reaping these broader benefits.”
What will Schedule 3 mean for developers in England?
England is expected to implement Schedule 3 in 2024, and while it’s still unclear what the legislative framework will look like, it’s arguably likely to align with the Welsh model. Per the Pitt Review recommendations which led to the Flood and Water Management Act 2010, the automatic right for stormwater drainage to connect to the public sewer system will likely be removed. New standards will also be established for an application approval process, with an approving body appointed to dictate which systems comply and are adoptable. According to Ian Titherington former Lead Drainage Officer at Cardiff City Council, it’s an opportunity for England to create “a better version of Schedule 3 than the Welsh one, because England can learn a lot from the Welsh experience”.
A collaborative approach
Since the law changed in 2019, SuDS design and construction has become an increasingly collaborative process in Wales. This partnership approach is driven by statutory guidelines which encourage early design and pre-application discussions between developers and SABs. SABs and government are also expected to actively encourage developers to request adoption – as “unadopted surface water drainage systems and poor management options only increase the risk of flooding and long-term impacts on residents”.
It’s a system that’s working well and “developers and SABs have built a good relationship. [Together they’re] looking for systems that are low maintenance and easy access, and that means designing for human nature. Things like raingardens in urban spaces, for example, maintain themselves and are incredibly efficient. [By working] in partnership, all parties get better outcomes: better design, more approval from the community and it works better” Ian Titherington, formerly Lead Officer, Drainage, Cardiff City Council.
Cost-effective planning and SAB seed money
As local authorities now oversee all SuDS applications in Wales, they’ve become the leading national authority on the subject and many local authorities now offer pre-application services and advice to developers. This service helps developers establish the most cost-effective and beneficial route for each individual site and ensures handover to the local water authority is as efficient as possible.
A chargeable service, according to Julian Hill, Developer Services, Dŵr Cymru Welsh Water, “the in-house consultancy fees charged by local authorities are almost like seed money. They help us to develop our expertise, skills and resources and then once approved, to continue to fund and maintain the SuDS. Our advice is hugely valuable to developers, because well-designed SuDS need to take into account a lot of considerations - whether it’s planning legislation, public and open space, highway adoption or permeable paving. You need to align all these processes”.
Training will be key for the English system
This consultation revenue stream is particularly important in light of the challenges Welsh local authorities have faced since the current system was established.
According to Ian Titherington, there are “two things Wales got wrong. [The first is] that there was no resourcing from the Welsh Government up front to set up the SABs. As a result, there’s a lack of consistent processes to follow...[The second], there’s a lack of knowledge and expertise in drainage and site ideas. To combat this skills gap there needs to be more training in both the public and private sector. As England moves towards its own version of Schedule 3, training will be key to ensuring consistency of policy and understanding the guidance and design tips”.
Heeding this, English developers should aim to increase their understanding of SuDS, particularly the four pillars, as by current Welsh standards these design objectives are prioritised in every SuDS system. A number of tools and resources are recommended by the Welsh government to support the design and delivery of multi-beneficial SuDS, including the CIRIA Benefits for SuDS tool and the RSPB/WWT guidance on designing SuDS for people and wildlife. The Construction Industry Research and Information Association’s SuDS manual is another good point of call.
Since 2019, Wales has witnessed large-scale and high-profile retrofitting of SuDS.
Reflecting on this, Julian Hill states: “ Welsh authorities are putting the environment on much firmer footing with these more robust measures, checks and balances. It’s a huge step in the right direction, because we’re building on the knowledge we’ve gained by delivering retrofit to support new developments. From this, I think we’ve got something of a head start”.
It’s possible that SABs in England will also look to retrofit initiatives to help build their knowledge and experience around SuDS. And developers in England have a wealth of retrofit case studies to draw from as they get up to speed with the myriad SuDS solutions available.
Further reforms in the future?
Since adoption of Schedule 3, the Welsh government has also sought to reform privatised water companies and disconnect shareholders. It is believed that re-nationalisation into a not-for-profit model, will drive greater investment and engagement with ecologically-minded initiatives. Whether or not a renationalisation movement of this scale will emerge in England is unclear. Regardless, experts are hopeful England will take onboard some of the key learnings from its surrounding nations in order to optimise its own version of Schedule 3.
Here at Wavin, we’re experts at creating stormwater solutions for UK developers, covering a wide range of different project applications. If you’d like to find out more about how Wavin can help you meet the upcoming stormwater regulations in England, please visit our website: https://solutions.wavin.com/en-gb/stormwater-solutions.
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