The Sustainable Drainage (Enforcement) (Wales) Order 2018

Made: 13 November 2018

Coming into force: 7 January 2019

The Welsh Ministers, in exercise of the powers conferred by sections 32 and 48(2) of, and paragraphs 4(a) and 14 of Schedule 3 to, the Flood and Water Management Act 2010 , make the following Order.

In accordance with paragraph 14(5)(b) of Schedule 3 to that Act a draft of this instrument has been laid before and approved by, a resolution of the National Assembly for Wales.

PART 1 — Introduction

Title and commencement

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• (1) The title of this Order is the Sustainable Drainage (Enforcement) (Wales) Order 2018.

• (2) This Order comes into force on 7 January 2019.

Interpretation

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• (1) In this Order—

• “the 1990 Act” (“Deddf 1990”) means the Town and Country Planning Act 1990 ;

• “appellant” (“apelydd”) means a developer who makes an appeal under this Order;

• “approval” (“cymeradwyaeth”) means the approval required under paragraph 7(1) of Schedule 3 for a drainage system for construction work;

• “authorised person” (“person awdurdodedig”) means a person authorised by an approving body;

• “breach” (“toriad”),in relation to the requirement for approval, means—construction work is commenced without approval,a condition of approval is breached, orconstruction work does not conform to the approved proposals;

• “construction area” (“ardal adeiladu”) means—the area of land identified on a plan accompanying an application for planning permission, orif an application for planning permission has not been made, the area of land on which construction work has commenced or is proposed to be commenced;

• “developer” (“datblygwr”) means a person who commences or proposes to commence construction work;

• “electronic communication” (“cyfathrebiad electronig”) has the meaning given in section 15(1) of the Electronic Communications Act 2000 ;

• “enforcement notice” (“hysbysiad gorfodi”) has the meaning given in article 8;

• “local planning authority” (“awdurdod cynllunio lleol”) has the meaning given in section 1(1B) of the 1990 Act;

• “notice of appeal” (“hysbysiad apêl”) means a notice under article 14;

• “powers of entry” (“pwerau mynediad”) means the powers conferred by article 4;

• “Schedule 3” (“Atodlen 3”) means Schedule 3 to the Flood and Water Management Act 2010;

• “stop notice” (“hysbysiad stop”) has the meaning given in article 10;

• “temporary stop notice” (“hysbysiad stop dros dro”) has the meaning given in article 6;

• “time limit for making an appeal” (“terfyn amser ar gyfer gwneud apêl”) has the meaning given in article 13.

• (2) In this Order a reference to “construction work” is to be construed as a reference to construction work having drainage implications .

PART 2 — Exercise of enforcement functions

Agreement to exercise enforcement function

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• (1) An approving body may agree with the local planning authority (“the Authority”) that the Authority may exercise an enforcement function under this Order as if it were the approving body.

• (2) The agreement—

• (a) may relate to any breach of the requirement for approval, and

• (b) may contain arrangements to reimburse the costs incurred by the Authority in exercising the enforcement function.

• (3) In this article, “enforcement function” means any function exercisable by the approving body in relation to—

• (a) powers of entry;

• (b) a temporary stop notice, enforcement notice or stop notice.

Powers of entry

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• (1) An authorised person may at any reasonable time enter a construction area (except any premises in the construction area used wholly or mainly as a private dwelling house) to determine if—

• (a) there has been a breach of the requirement for approval, or

• (b) a temporary stop notice, stop notice or enforcement notice has been complied with.

• (2) Paragraph (1) is subject to paragraph (4).

• (3) The authorised person must on request produce evidence of authorisation.

• (4) In an emergency, powers of entry may be exercised at any time.

• (5) An authorised person may not exercise powers of entry to determine if there has been a breach of the requirement for approval if a drainage system for the construction work has been adopted.

• (6) A justice of the peace may, by signed warrant, permit an authorised person to enter any premises in a construction area, if necessary by reasonable force, if the justice on sworn information in writing is satisfied—

• (a) that there are reasonable grounds to enter the premises for the purposes of paragraph (1) of this article, and

• (b) that any of the conditions in paragraph (7) are met.

• (7) The conditions are—

• (a) entry to the premises has been, or is likely to be, refused, and notice of the intention to apply for a warrant has been given to the occupier;

• (b) asking for admission to the premises, or giving such a notice, would defeat the object of the entry;

• (c) entry is required urgently;

• (d) the premises are unoccupied or the occupier is temporarily absent.

• (8) A warrant is valid for 3 months.

• (9) An authorised person entering premises which are unoccupied or from which the occupier is temporarily absent must leave the premises as effectively secured against unauthorised entry as they were before entry.

Compensation for loss resulting from exercise of powers of entry

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• (1) A developer or other person is entitled to compensation if—

• (a) an authorised person enters a construction area or any premises in a construction area in exercise of powers of entry but finds no evidence of a breach of the requirement for approval, and

• (b) as a result of the exercise of those powers the developer or other person incurs loss.

• (2) If an authorised person enters a construction area or any premises in a construction area in exercise of powers of entry and a breach of the requirement for approval is found, compensation is payable—

• (a) to the developer for any loss resulting only from an unreasonable exercise of those powers;

• (b) to any other person as if no evidence of a breach were found.

• (3) Any claim for compensation must be made to the approving body within 12 months after the exercise of those powers.

• (4) Disputes about compensation are to be determined by the Upper Tribunal.

PART 3 — Notices

Temporary stop notices

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• (1) An approving body may give a notice (“a temporary stop notice”) to a developer if the approving body has reason to believe that—

• (a) the developer has breached the requirement for approval, and

• (b) it is expedient that the construction work stop immediately.

• (2) A temporary stop notice must be in writing and must—

• (a) specify the activity that is believed to be a breach,

• (b) give reasons for that view,

• (c) prohibit the developer from continuing with the activity, and

• (d) specify the consequences of non-compliance with the notice.

• (3) An approving body may at any time withdraw a temporary stop notice by giving written notice to a developer setting out reasons for the decision to withdraw it.

• (4) A temporary stop notice has effect from the time it is given and, unless it is earlier withdrawn, ceases to have effect at the end of—

• (a) the period of 4 weeks beginning with the day it is given, or

• (b) any shorter period specified in the notice, beginning with the day it is given.

• (5) A second or subsequent temporary stop notice must not be given in respect of the same activity unless the approving body has first taken some other enforcement action in relation to the breach.

Compensation for loss resulting from temporary stop notice

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• (1) A developer who suffers loss as a result of being given a temporary stop notice is entitled to compensation if the approving body—

• (a) withdraws the notice, or

• (b) does not take any further enforcement action.

• (2) Any claim for compensation must be made to the approving body within 12 months after the notice is withdrawn or ceases to have effect, whichever is the earlier.

• (3) Disputes about compensation are to be determined by the Upper Tribunal.

Enforcement notices

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• (1) If a developer breaches the requirement for approval, the approving body may give a notice to the developer requiring the developer to take steps to remedy the breach (“an enforcement notice”).

• (2) An enforcement notice may be given at any time before a drainage system for the construction work is adopted but not later than 4 years after the breach occurs.

• (3) An enforcement notice must be in writing and must specify—

• (a) the construction area to which the notice relates,

• (b) details of the breach,

• (c) the steps which the developer must take to remedy the breach,

• (d) the date by which the steps must be taken,

• (e) rights of appeal, including the time limit for making an appeal, and

• (f) the consequences of non-compliance with the notice.

• (4) An enforcement notice must not require the developer to take any steps until at least 4 weeks after the date on which the notice is given.

• (5) An approving body may at any time by written notice to a developer—

• (a) withdraw an enforcement notice, giving reasons, or

• (b) vary an enforcement notice by—

• (i) reducing the amount of work necessary to comply with the notice, or

• (ii) extending the time for taking any step specified in the notice.

Steps required by an enforcement notice

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• (1) For construction work commenced without approval, the enforcement notice must require the developer—

• (a) to apply for approval (the application to be made as if construction work had not commenced), or

• (b) to restore the construction area to the condition it was in before the construction work began.

• (2) For a breach of a condition of approval, the enforcement notice must require the developer—

• (a) to carry out work to ensure the drainage system complies with the conditions of approval, or

• (b) to restore the construction area to the condition it was in before the construction work began.

• (3) For construction work that does not conform to the approved proposals, the enforcement notice must require the developer—

• (a) to carry out work to ensure the drainage system complies with the approved proposals, or

• (b) to restore the construction area to the condition it was in before the construction work began.

• (4) If a developer fails to comply with an enforcement notice, the approving body—

• (a) may take the steps specified in the enforcement notice or authorise another person to take the steps, and

• (b) may require the developer to pay expenses incurred under sub-paragraph (a), such expenses to be recoverable as a debt.

• (5) The approving body or a person authorised under paragraph (4)(a) may at any reasonable time enter a construction area to take the steps specified in the enforcement notice.

Stop notices

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• (1) An approving body may give a notice (“a stop notice”) to a developer if—

• (a) the developer has appealed against an enforcement notice, and

• (b) the approving body thinks it is expedient that construction work on the land to which the enforcement notice relates should stop immediately.

• (2) A stop notice may prohibit a developer from continuing with the construction work specified in the notice until—

• (a) the appeal against the enforcement notice is determined or withdrawn, or

• (b) the approving body—

• (i) withdraws the stop notice, or

• (ii) takes further enforcement action.

• (3) A stop notice must be in writing and must specify—

• (a) the date on which it takes effect,

• (b) the grounds on which it was served,

• (c) the consequences of not complying with it, and

• (d) the enforcement notice to which it relates.

• (4) A copy of the enforcement notice must be annexed to the stop notice.

• (5) An approving body may at any time withdraw a stop notice by giving written notice to a developer setting out reasons for the decision to withdraw it.

Register of notices

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• (1) An approving body must keep a register containing information relating to all temporary stop notices, enforcement notices and stop notices it gives.

• (2) The register must contain the information prescribed for the purpose of section 188(1) of the 1990 Act and by article 30 of the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 but with the modifications described in paragraph (3).

• (3) The modifications are—

• (a) any reference to the authority is to be read as a reference to the approving body;

• (b) any reference to service of the notice or copies of the notice is to be read as a reference to the giving of the notice;

• (c) any reference to a breach of planning control is to be read as a reference to a breach of the requirement for approval;

• (d) any reference to a breach of condition notice is to be read as a reference to a stop notice or temporary stop notice.

• (4) The information must be entered on the register as soon as is practicable but not more than 2 weeks after a notice is given.

• (5) An entry relating to a notice must be removed from the register if the notice is withdrawn or ceases to have effect.

PART 4 — Appeals against enforcement notices

Right of appeal

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• (1) A developer who is given an enforcement notice may by notice appeal to the Welsh Ministers against the decision to give it.

• (2) The grounds of appeal are that—

• (a) the decision was based on an error of fact;

• (b) the decision was wrong in law;

• (c) the decision was unreasonable;

• (d) there is no breach of the requirement for approval.

• (3) An enforcement notice is suspended until an appeal is determined or withdrawn.

Time limit for making an appeal

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An appeal must be made within the period of 4 weeks beginning with the day on which a developer is given an enforcement notice.

Making an appeal

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• (1) Notice of an appeal against an enforcement notice must—

• (a) be in writing, on a form obtained from the Welsh Ministers,

• (b) state the grounds of appeal,

• (c) state the facts on which the appellant will rely in support of each of those grounds and any other particulars of the case the appellant intends to put forward in relation to the appeal, and

• (d) include the name, address (including any email address) and telephone number of the appellant and any agent acting for the appellant.

• (2) The notice must be sent to the Welsh Ministers accompanied by—

• (a) a statement as to whether the appellant wishes to have the appeal dealt with by way of written representations, a hearing or an inquiry,

• (b) a copy of the enforcement notice, and

• (c) a copy of any related stop notice or temporary stop notice.

• (3) A developer who sends a notice of appeal to the Welsh Ministers must, at the same time, send a copy of the notice of appeal and accompanying documents to the approving body.

• (4) In this article, “accompanying documents” means the documents mentioned in paragraph (2).

• (5) Any notice or other document required in this article to be sent or provided, may be sent by post or electronic communication.

Use of electronic communications

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• (1) Paragraphs (2) to (6) of this article apply where an electronic communication is used by an appellant for the purpose of fulfilling any requirement in article 14.

• (2) The requirement is taken to be fulfilled where the notice or other document transmitted by means of the electronic communication is—

• (a) capable of being accessed by the recipient,

• (b) legible in all material respects, and

• (c) sufficiently permanent to be used for subsequent reference.

• (3) In paragraph (2) “legible in all material respects” means that the information contained in the notice or other document is available to the recipient to no lesser extent than it would be if sent or given by means of a document in printed form.

• (4) Where the electronic communication is received by the recipient outside the recipient's business hours, it will be taken to have been received on the next working day.