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SuDS and Sovereignty: Parliament pushes back on impermeable paving!

February 2017

Thanks to Brexit, the question of Parliamentary sovereignty is much in mind: when can the Executive act without the consent of Parliament? The Supreme Court’s judgement that a Parliamentary vote is needed to trigger Article 50 is a check on executive power.

Behind the furore of Brexit, though, another balancing act has been taking place between Whitehall and Westminster that is having a real effect on people’s lives. Surface water flooding is a growing problem. It’s responsible for 36% of flood damage in the UK every year and millions of homes are at risk. Behind the numbers, there are stories of real misery, as homes and businesses are inundated by water and raw sewage. Back in 2010, Parliament recognised that the solution to the housing crisis—building hundreds of thousands of new homes—could exacerbate the floods crisis, unless planning rules were updated to make our communities more resilient. It passed the Flood and Water Management Act 2010, which included a system for incorporating sustainable drainage systems (SuDS) in new developments. SuDS mimic natural processes to store and soak away water safely. Unfortunately, the legislation included an “activation clause” that required the Secretary of State to bring the SuDS provisions into force. The Government simply decided never to do so. In other words, the law as agreed by Parliament requires SuDS, but the Government decided not to enforce it. Instead, Government has spent the subsequent seven years adjusting planning rules and guidance to try to increase uptake of SuDS. It recognises that SuDS can be a cost-effective way to protect people against flooding, but it has preferred “non-regulatory” options for delivery. These planning options have failed. In many cases, developers claim exemptions from the rules, so SuDS are not built. In other cases, SuDS are built but to a very poor standard—the notorious “bomb crater” approach, where unkempt holes appear alongside houses. In response, Parliament has asserted itself. Repeatedly, Select Committees of the House have called for stronger SuDS policy. The EFRA Select Committee is currently undertaking post-legislative scrutiny of the Flood and Water Management Act with a focus on SuDS. Then, last year, in a dramatic back and forth between the House of Commons and Lords in the Housing and Planning Act 2016, Peers and MPs (led by Baroness Parminter, Baroness Young and Lord Krebs) put forward new legal proposals to require SuDS in new developments. These focused on a streamlined approach that would increase SuDS uptake without slowing down development. After a hard-fought battle between Government and Parliament, an amendment was agreed that required Government to review law and policy relating to SuDS. That review is currently underway. However, in another case of questionable communication between Government and Parliament, the terms of reference of the review were only announced in the margins—in response to a question by Roberta Blackman-Woods. At the same time, the Government is proposing changes to Local Authorities’ rights to impose pre-commencement planning conditions that could actual be a step in the opposite direction. Provisions in Clause 12 of the Neighbourhood Planning Bill would require developers to agree before communities can impose conditions, which are often used to improve sustainable drainage plans. That’s why WWT and CIWEM teamed up with a host of engineering, construction, local government, water and planning experts to launch the largest ever survey of SuDS in England. Today, we are publishing our findings in a new CIWEM/WWT report, A place for SuDS?. We are joined in Parliament by Baroness Parminter, Peter Aldous MP and Roberta Blackman-Woods MP and grateful for their support. Its findings are clear: it is not practicality or price that are holding back SuDS deployment—it is policy. A new legal mechanism is needed to drive uptake and to sort out crucial questions like the ongoing maintenance of SuDS systems. New standards are needed to make sure that when SuDS are built they are designed well, to capitalise on the potential for affordable urban habitat creation (so crucial for our wildlife and wellbeing) and for water quality improvements. Our launch coincides with World Wetlands Day, a time to recognise the risks of paving over our natural assets, and celebrate the benefits of natural infrastructure. The changes we need are modest, affordable and backed by repeated expressions of Parliamentary opinion. Let’s hope that this time, Government takes the opportunity created by Parliament to make our communities greener and more resilient. The seven-year freeze on urban flood resilience policy must be brought to an end before hundreds of thousands more homes are built without sustainability in mind. Richard Benwell Wildfowl & Wetlands Trust