Since 7 January 2019, developers in Wales have been under a legal obligation to provide sustainable drainage systems (SuDs) on new developments with drainage implications. In such circumstances, developers are prohibited from commencing construction work until such time as the SuDs have been approved by the local authority in its capacity as the SuDs Approving Body (SAB).
However SAB approval is not required for all new developments. SAB approval is not required in respect of any construction work in respect of which before 7 January 2019, planning permission was granted or deemed to be granted (except where the grant was subject to a condition as to a reserved matter and an application for approval of the reserved matter is not made by 7 January 2020), and SAB approval is not required where the land covered by the construction work is less than 100 square metres.
How those exemptions apply where the construction work is being undertaken pursuant to permitted development rights has been unclear. According to the SuDs guidance (which SABs must have regard to), “permitted developments of more than 100 square metres which are notified after 7 January 2019 will require SAB approval”. However, the legislation itself was not as explicit as that and did not deal with the issue of “prior notification” required by some permitted development rights. There was some suggestion that SAB approval may never be required where permitted development rights are being relied upon provided that the permitted development right relied upon was granted before 7 January 2019, notwithstanding that “prior approval” was granted after that
Such uncertainty has been problematic for the construction sector, and especially to statutory undertakers who regularly rely upon permitted development rights to undertake construction projects, and many have been left in a state of limbo.
Fortunately, the Welsh Ministers have now clarified the position and passed The Sustainable Drainage (Approval and Adoption) (Wales) (Amendment) Order 2020 (“the Order”), which will come into force on 9 June 2020. This Order inserts an interpretation provision into the existing legislation, and makes it clear that construction works which have drainage implications, which are undertaken pursuant to permitted development rights and cover an area of land of 100 square metres or more, will require SAB approval. Whilst the effect of that amendment may not be such welcome news to developers, at the very least it will provide some clarity and certainty on the position.
You may also be aware that the Welsh Government has recently introduced new temporary permitted development rights in the Town and Country Planning (General Permitted Development) Order 1995 (“the GPDO”) to enable emergency development by local authorities and NHS bodies in response to the COVID-19 public health emergency, and other emergencies. The Order makes further amendments to the SuDs legislation to make it clear that emergency permitted developments under particular provisions in the GPDO do not require SAB approval. Whilst this appears contrary to the general position on permitted development rights as set out above, it is a logical and pragmatic amendment given the clear purpose of the emergency permitted development rights which are intended to allow such development to take place quickly and without obstacle.
Should you require any advice on SuDs, please contact Natalie Harries on 029 2039 1763 or via email at email@example.com
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