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The guidance has been prepared by the highly respected barrister and author of “Water and Drainage Law”, John Bates, of Old Square Chambers. It provides the author’s view of good practice in the area.
With priority now given to Sustainable Drainage Systems (SuDS), lawyers have to do more to satisfy their duty of care to clients. Lawyers need to advise clients how SuDS might impact their development sites and give rise to long-term management responsibilities.
The guidance comes as Local Planning Authorities (LPAs) continue to implement stricter planning controls in favour of more sustainable drainage due, in part, to the challenges presented by climate change.
SuDS are the preferred approach to managing drainage from surface water runoff in and around developments. They control surface water runoff close to where it falls and are designed to replicate, as closely as possible, the natural drainage from a site before development to ensure that:
Drainage requirements follow a “hierarchy” of planning approval – and in there is a presumption in favour of SuDS, where appropriate. The guidance note recommends that:
“Lawyers should commission a pre-application SuDS report to ascertain whether SuDS are appropriate or not, because this has important legal repercussions for your client.”
SuDS can take up a significant area of a site and have project costs and long-term maintenance impacts that clients need to be alert to.
Lawyers must make reasonable enquiries to determine whether SuDS are an appropriate drainage solution for their client’s site.
The appropriateness or otherwise of SuDS may affect the legal advice given in respect of planning conditions, easements, adoption, and maintenance as well as advice relating to insurance cover.
Lawyers should consult the relevant LPA policies on sustainable drainage and seek independent advice from a specialist data provider at pre- and full planning stages.
Particular types of sustainable drainage systems may not be practicable in all locations. LPAs have set out local guidance on their approach. GeoSmart Information has put together a library by authority area for inspection.
In considering a development that includes SuDS, the LPA will want to be satisfied that the proposed minimum standards of operation are appropriate and that there are clear arrangements in place for ongoing maintenance.
The technical standards provided by government relate to the design, construction, operation and maintenance of sustainable drainage systems and have been published as guidance for those designing schemes.
It is important that commercial property lawyers and their clients are able to accurately determine the suitability of the site for SuDS and the context of how the LPA will respond. Knowing the soil geology and drainage characteristics early on will assist in managing through the efficient pre-planning and full submission stage more efficiently.
A range of easy to understand, PI backed reports are now available from GeoSmart Information. These assess the likelihood of SuDS infiltration (ease at which water can soaking into the ground on or near the site) as well as more detailed reports that look at potential drainage designs based on the soil conditions.
Understanding LPA requirements on SuDS, how these could impact on development project feasibility and ongoing liabilities, are now a key factor as part of legal due diligence and client duty of care.
It is also important to understand the past site use, as historic contamination will impact on the ability to deliver SuDS for the development.
Recognising the significance of the Guidance, GeoSmart Information is hosting a breakfast seminar for property and planning lawyers at Salters Hall, Central London on Thursday 9th June.
John Bates, together with environmental lawyers and drainage experts will explain how Authorities are prioritising SuDS within their planning controls, explain the Guidance Note and discuss what this means in practice for lawyers and their clients.
More information on this essential event for commercial property, planning and environmental lawyers can be found here.
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