Schedule 3 SuDS approval and why it has not started

Schedule 3 to the Flood and Water Management Act 2010 has sat on the statute book unimplemented in England since the Act was passed. It would create a separate consent for drainage, run by a SuDS approving body, and it would make the right to connect surface water to a public sewer conditional on that approval. In Wales the same Schedule was brought into force in January 2019 and has been operating since.

In England it has not started. That is the position to work from, and the practical question for a developer is what fills the gap.

What Schedule 3 would introduce

Three changes, each with programme consequences.

A new approval requirement, so that construction work meeting prescribed criteria could not begin until the drainage system had been approved by the SuDS approving body against national standards. A new adoption and maintenance duty, with the approving body taking on drainage systems serving more than one property, backed by a bond during construction. And an amendment to the right to connect, so that surface water could only be connected to a public sewer where the approving body had approved the drainage system.

The approving body would be the unitary authority or the county council, which in most places is the same organisation as the lead local flood authority that already comments on drainage through the planning process. The mechanics of that body and what it would assess are set out in more detail in the piece on the SuDS approving body.

Why the approving body matters more than it sounds

A second consent regime running alongside planning changes the shape of a development programme rather than just adding a form.

Approval would be needed before construction work started, which puts it on the critical path in the same way that a building control approval does on a higher-risk building. It would carry its own appeal route, its own fees and its own timescales. And because adoption and maintenance would transfer to a public body for shared systems, the design would be driven by what that body is prepared to adopt rather than by what a management company will accept.

That last point is the one developers underrate. An adopting body with a published specification narrows the design space considerably, and features that a private management company will take on, such as an unusual basin profile or a proprietary treatment device, may not be adoptable.

The effect on the right to connect

Section 106 of the Water Industry Act 1991 gives an owner or occupier a right to connect drains and private sewers to a public sewer, subject to the undertaker's control over the manner of connection. For foul drainage that right is the backbone of the system.

For surface water, Schedule 3 would qualify it. Connection would depend on the approving body having approved the drainage system, which would give a single body control over whether surface water reaches the sewer at all. In England today that qualification is absent, so the right to connect surface water persists as a matter of law.

What stops schemes discharging surface water straight into a combined sewer is not the law of connection. It is planning policy and the drainage hierarchy, applied by the authority through the application, which is a softer control and one that depends on the lead local flood authority noticing.

How drainage is handled in the meantime

Four instruments do the work, and together they are less tidy than Schedule 3 would be.

The ministerial statement that moved sustainable drainage into the planning system in 2015 is the hinge. From that point lead local flood authorities became statutory consultees on surface water drainage for major development, and drainage became a matter the planning authority has to be satisfied about before granting permission.

The gap it leaves is minor development. A scheme of nine houses is not major, so there is no statutory consultation on surface water, and the quality of drainage scrutiny on small sites depends entirely on whether the authority has the resource to look. Schedule 3 would have caught those sites through its construction-based criteria rather than the planning definition of major.

The non-statutory technical standards and what sits above them

The standards published in 2015 are non-statutory, which means they are applied through planning policy rather than enforced directly. They cover peak flow control, volume control, flood risk within the development, structural integrity, designing for maintenance and construction.

They are also thin by comparison with the industry guidance that practitioners actually design to. The widely used sustainable drainage manual produced by the construction industry research body is the reference for design detail, water quality treatment and component selection, and most lead local flood authorities expect design to follow it even though no statute says so.

Three things to pin down with the authority before the drainage design is finalised. The discharge rate it will accept, which for greenfield sites is usually tied to the calculated greenfield run-off rate and for brownfield sites is a matter of negotiation. The climate change allowance and the design events required. And the long-term maintenance mechanism it will accept. Put the answers in the Drainage Strategy rather than leaving them to a condition.

Status at the time of reading, and what to verify

Government published a review of the implementation of Schedule 3 and has stated an intention to implement it in England, subject to further consultation and to decisions about resourcing and transition. Dates have moved more than once.

So verify the current position before relying on anything written about this, including this article. Two checks take five minutes. The in-force information on the legislation page for Schedule 3, which records which provisions apply and in which territory. And the relevant policy pages on gov.uk, which carry any announcement of a start date or a consultation response.

Other reforms sit in the same waiting room, and the general problem of planning around a measure that is legislated but not yet running is the same as the one described in plan making reform and what happens to emerging plans.

What to do on a live scheme

Design as though the regime were in force. That advice sounds conservative and it is the least costly insurance available, because a drainage design that would satisfy an approving body will satisfy a planning consultee.

Five practical steps.

1. Engage the lead local flood authority before the layout is fixed, not at submission. Discharge rate and outfall location drive the layout.
2. Design to the industry manual and demonstrate the treatment train for water quality, not just the attenuation volume.
3. Settle adoption and maintenance early. Decide whether the system will be offered for sewer adoption, taken by a management company, or retained by individual owners, and reflect that choice in the design.
4. Allow for a verification report after construction, because the condition requiring one is standard and the report needs as-built records and survey work that have to be commissioned during the build.
5. Build a contingency into long programmes for a change of regime partway through, particularly on phased sites where later phases might be caught by a new requirement.

And keep the flood risk work consistent with the drainage design, since the two documents are read together and a mismatch between the modelled levels in the Flood Risk Assessment and the exceedance routes in the drainage strategy is the fastest way to a holding objection.

Follow reform news on the planning law timeline and check the statutory position each time it matters. This is general guidance, not legal advice, so check the current position with your local planning authority or a qualified professional before relying on it.

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