National legislation changes and implications
Schedule 3 Flood and Water Management Act (2010)
Cornwall Council is the Lead Local Flood Authority (LLFA) for Cornwall. Schedule 3 of the Flood and Water Management Act (2010) required LLFAs to establish a SuDS Approval Body (SAB). Cornwall Council could then approve, adopt and maintain SuDS features serving new developments.
However, in December 2014, the Government announced that Schedule 3 would not be enacted. Instead, strengthened existing planning policy would manage SuDS. This change took effect on 6th April 2015. Since the change, the Local Planning Authority (LPA) makes the final decision on proposed SuDS provision. SuDS must be proportionate to the level of flood risk affecting the site and impacts elsewhere.
As a result, Cornwall Council was not required to establish a SAB. Instead, the LLFA became a statutory consultee to the LPA for major developments which have surface water implications.
The Jenkins review was published in August 2020. Recommendations included that the DEFRA technical standards for SuDS should become statutory. The review found:
- the planning-led approach alone was not working.
- often there were no specific checking regimes in place to ensure SuDS were constructed as agreed
- concerns about unsatisfactory standards of design and construction
- difficulties of ensuring proper maintenance.
Schedule 3 provides:
- a framework for the approval and adoption of drainage systems
- an approving body (SAB)
- national standards on the design, construction, operation, and maintenance of SuDS.
- makes the right to connect surface water runoff to public sewers conditional on the drainage system being approved before any construction work can start.
The Government responded to the Jenkins review in July 2021. They immediately accepted 12 of the 22 recommendations. The recommendations related to Schedule 3 were that:
- DEFRA noted the strong views on the weaknesses of existing processes. These include ensuring appropriate standards of design and construction, and effective continuing maintenance.
- Re-examine the case for bringing into effect Schedule 3, or equivalent mandatory arrangements.
- DEFRA re-examine the working of Section 106 of the Water Industry Act of 1991. This is to ensure that the connection of surface water drainage does not cause unnecessary flood risk in the sewerage system.
In January 2023 DEFRA published a review in response to the Jenkins recommendations. The report is called “The review for implementation of Schedule 3 to The Flood and Water Management Act 2010”.
The Government has announced its intention to enact Schedule 3. This decision is based on the recommendations of the DEFRA review. DEFRA is now considering how to implement Schedule 3. This will depend on final decisions on scope, threshold and process. There will be a public consultation in 2023. This aims to help to shape the new approach, with implementation expected during 2024.
Schedule 3 updates
Cornwall Council published an information note on the proposed Sustainable drainage Approval Body in August 2023. The update includes our understanding of the planned changes.
Read the Schedule 3 information note
Relevant national legislation and policy
There are many pieces of legislation relevant to the design and management of SuDS nationally. These can be viewed below:
The Water Framework Directive (2000) is European Union legislation. It aims to improve and protect the quality of water bodies.
The Land Drainage Act (1991) sets out the rights and responsibilities in relation to land drainage.
The Pitt review (2008) followed floods across the United Kingdom in 2007. Concerns raised in the review led to the Flood and Water Management Act (2010).
The National Planning Practice Guidance (2015) guidance contains a Flood Risk and Coastal Change section. It which advises on how the planning and design process can take account of the risks associated with flooding and coastal change including these risks in planning and design.
This standards document sets out non-statutory technical standards for SuDS. They should align with the National Planning Policy Framework and Planning Practice Guidance.
Revised July 2021, the national planning policy guidance sets out the government’s planning policies for England and how to apply them.
