New Drainage Guidance for Lawyers Published

Highly respected Drainage Law Barrister highlights important Duty of Care requirements for property and planning lawyers with new drainage guidance.

New guidance is released today for lawyers on drainage requirements for new build developments. Local Authorities are implementing stricter planning controls in favour of more sustainable drainage due, in part, to the challenges presented by climate change.

The guidance has been prepared by the highly respected barrister and author of “Water and Drainage Law”, John Bates, of Old Square Chambers. Mr. Bates’ guidance note examines how, with the prioritisation 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.

Mr. Bates advises lawyers that there is a presumption in favour of SuDS for development and that SuDS are the preferred approach to managing surface water runoff, adding:

“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.”

Other key points from the Guidance include:

• Drainage requirements follow a “hierarchy” of planning approval – and in there is a presumption in favour of SuDS, where appropriate.
• SuDS can take up a significant area of a site and have project cost 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 of otherwise of SuDS may affect the legal advice given in respect of planning conditions, easements, adoption, maintenance as well as advice relating to insurance cover.
• Lawyers should consult the relevant Local Authority Policies on Sustainable Drainage and seek independent advice from a specialist data provider at pre- and full planning stages.

The Guidance is available to download here.