Real Estate Blog: New requirements for Sustainable Urban Drainage Systems in England likely from 2024 – what will be required?

Following Julia Lock’s blog last week on “Surface Water Drainage – matters for developers to consider at site acquisition stage”, this blog considers the Government’s intentions to require sustainable urban drainage systems (“SuDS”) for construction projects in England from 2024 (under Schedule 3 to the Flood and Water Management Act 2010 (“FWMA 2010”)).

SuDS are nature-based solutions to control rainfall and surface water flow at development sites, achieved by various techniques including providing soakaways, permeable pavements, and ponds. These methods allow for water infiltration (soaking into the ground) and retention (which may then disperse through evaporation or slowly enter watercourses), thereby allowing the developed land to act as it naturally did before being developed. Additional benefits of SuDS include providing biodiversity habitat (SuDS may be relied on to contribute to biodiversity net gain) and public amenity. SuDS are equally applicable to urban areas or rural areas, and for residential, commercial and industrial developments.

In England Government currently relies on planning policy to require developers to implement SuDS in areas at risk of flooding and for developments of ten or more dwellings and buildings with floorspace of 1,000 square metres or more. However a report and policy statement published in January 2023 by the Department of Environment, Food and Rural Affairs (“Defra”), has now set out Government’s intentions to implement legislation in England (Schedule 3 of FWMA 2010) to mandate the use of SuDS.There are three key points to note:

• The new SuDS requirements are likely to be brought into force in 2024.
• From 2024 SuDS will be mandatory for most new construction in England and will require a SuDS-specific authorisation by the SuDS Approval Body (“SAB”) prior to construction starting (even where planning permission is not required). The SAB will sit within the unitary authority or, if there is not one for the area, within the county council. There will be two approaches for approval: a ‘free-standing application for approval’ will be made for construction that does not require a planning application (but may still be used if a planning application is to be made) or a ‘combined application’ to accompany an application for planning permission.
• The right to connect surface water run-off to public sewers will be removed and instead will be conditional on the approval of the drainage system by the SAB [1]

Defra’s policy intentions include providing exemptions from the need for SuDS approval for (i) permitted development under 100 square metres; and (ii) single buildings under 100 square metres. In addition there will be transitional arrangements for developments at an advanced stage within the planning process (seeking to avoid incurring additional work and costs for developments already in progress).

However, there are still a number of gaps yet to be filled before legal implementation. Fundamental gaps include the fact that we still do not know what the SuDS national standards will be, and we do not precisely know what construction will be in scope and therefore what will require approval. While it is welcome that transitional arrangements will exist for developments at an advanced stage, the specific detail is yet to be announced. We also do not know the exact process for application to the SAB for SuDS approval.

With this in mind, there are a number of things to look out for over 2023 ahead of the 2024 implementation. A number of consultations will be launched with the opportunity for representations to be made. We expect to see consultations on the content of national standards on how SuDS should be designed, constructed, maintained and operated; and on the secondary legislation (this may include the fees for approval and on the application process).

Subsequently the secondary legislation will be laid before parliament.

To ready themselves, developers should familiarise themselves with the SuDS national standards as soon as they are published by Government. Freeths will provide further updates on ongoing  implementation of statutory SuDS requirements.

It is also worth noting that SuDS have been mandatory for new property developments in Wales in certain circumstances since 7 January 2019. While the precise implementation in England may well differ in its approach, we can see the practical implementation of Schedule 3 to FWMA 2010 and look to lessons learnt from Welsh SuDS delivery.

If you would like any further advice on this topic, please get in touch with Thomas Roberts from our Planning and Environmental team.

[1] Schedule 3 does not, however, require approval for construction work that is a Nationally Significant Infrastructure Project as defined in s.31 of the Planning Act 2008.