Item 4 on the agenda this afternoon is the Sustainable Drainage (Enforcement) (Wales) (Amendment) Order 2019, and I call on the Minister for the Environment, Energy and Rural Affairs to move the motion—Lesley Griffiths. 

Motion NDM7200 Rebecca Evans

To propose that the National Assembly for Wales; in accordance with Standing Order 27.5:

1. Approves that the draft The Sustainable Drainage (Enforcement) (Wales) (Amendment) Order 2019 is made in accordance with the draft laid in the Table Office on 5 November 2019.

Motion moved.

Thank you, Deputy Presiding Officer. Following extensive consultation, a mandatory requirement to provide sustainable drainage systems on new developments was introduced in Wales from 7 January this year. SuDS, as they are more commonly known, will provide multiple benefits for flood risk reduction, rainwater re-use, water quality, well-being and biodiversity. I am proud that we are the first country in the UK to introduce mandatory SuDS on all new developments.

The recent flooding in parts of the UK shows the need for us to be vigilant and innovative in how we deal with excessive rainfall, which is only likely to get worse as a result of climate change. The original enforcement Order was one of five pieces of secondary legislation the National Assembly made to implement the SuDs provisions in Schedule 3 to the Flood and Water Management Act 2010.

Under the 2010 Act, approval is required before construction of drainage systems can commence on new and redeveloped sites. The Sustainable Drainage (Enforcement) (Wales) Order 2018 provides for the enforcement of breach of the approval required concerning drainage systems. The Order makes provision for the SuDS approving body to exercise powers of entry and issue enforcement notices or stop notices to a developer that breaches the requirement for approval.

However, following implementation, it has come to light that a minor amendment is needed to article 21 of the 2018 Order to bring it in line with recent changes to other enforcement legislation. Article 21 limits the fines that can be passed in a summary case for the offence of failing to comply with a temporary stop notice, enforcement notice or stop notice to a maximum of £20,000.

The 2018 Order was drafted before section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 commenced, but was not put into force until after the commencement and so was not caught by that provision. The 2012 Act removed the upper limit on the fines magistrates' courts could pass for almost all offences. To provide consistency with other offences of a similar nature, it is proposed the limit of £20,000 be amended to simply 'a fine', enabling magistrates' courts to pass an unlimited fine. This is consistent with the wording used in amendments to other legislation made by the 2012 Act.

It is important the SuDS regime is backed up by appropriate enforcement arrangements, and I commend this Order to the National Assembly.

Thank you. Can I call on the Chair of the Constitutional and Legislative Affairs Committee, Mick Antoniw?

Diolch, Dirprwy Lywydd. We considered this Order at our meeting on 18 November, and we laid our report before the Assembly on 19 November. Our report noted one merits point under Standing Order 21.3, which raised a concern that the explanatory memorandum accompanying the instrument was not as clear as it might be, specifically in relation to the limitations of fines for offences. We note that the Welsh Government, in its response to our report, acknowledges this lack of clarity, and we further welcome that an updated version of the explanatory memorandum has since been relaid. Diolch, Dirprwy Lywydd.

Llyr Gruffydd. No. That's fine. Mark Reckless. 

Diolch, Dirprwy Lywydd. We talk about how we're keen to increase house building and construction in Wales, both to provide housing and to generate economic growth, yet the reality is we put more and more restrictions and conditions on what developers have to do before they are allowed to develop. One of these has been the sustainable urban drainage requirements.

When I served on the Economy, Infrastructure and Skills Committee, we were looking into the small and medium house builders and received evidence emphasising the drainage requirements as a particular problem, in many cases requiring drainage arrangements that were ongoing and required estate management and very significant regulatory work that added a lot of cost to the developments. There were also very substantial complaints about Dŵr Cymru—Dŵr Cymru resisted those. But I'm nervous about having more and more requirements, and more and larger fines, that have regulators reducing the ease with which people are able to build the houses and the developments that we need.

I'm pleased that the change is going to be made to the explanatory note that was identified by CLAC, and I thank CLAC for their work in noting that requirement for the change in the explanatory note, but I would just question the unlimited fine. If there is a series of well-known issues where developers have just seen £20,000 as a cost of doing business and have done truly egregious things, and there's a problem that we need to address, fine, but it's just suggested, 'Oh well, we need to be consistent with these other things—there's this need to do this', and I'm not convinced whether that need is there.

But I am willing to listen to the Minister's response and would specifically ask her to clarify the authorities that can put the initial stop notices—the 22 local authorities—. Can she clarify—national parks authorities, Dŵr Cymru—? Is Natural Resources Wales also allowed to do this? What is the scope? Will any fine be a requirement of the magistrates' courts and independently assessed there before the developer would have to pay? I look forward to a hearing a response before we consider our voting position. Thank you.

I simply wanted to ask how this regulation—amendment to the regulation—will make sure that there is a proportionate approach, and that there is a reasonable approach that is taken to fines and penalties. I disagree with the point that Mark has made; I think SuDS systems now are absolutely essential—we've learnt this, they have to be in place, and it is right that there is a proportionate, in terms of an appropriately high, level to deter abuses of actually not proceeding with SuDS in the appropriate ways too. But, then again, I think to give some reassurance to the housebuilding community out there that there is some way in which this process goes through checks and balances, so it's not used in any arbitrary way, but those that choose not to comply with the SuDS regulations—and some of these will be builders of significant size, not just small and medium-sized businesses; they could be large housebuilders—they have something that will deter them from not complying with the SuDS regulations that are in place. But I would emphasise to the Minister that I think the SuDS regulations that we've put in place are absolutely a necessity nowadays, not a burden to be avoided or shilly-shallied around on—they have to be in place, because of the loading now on our water and sewerage systems.  

Can I call the Minister for Environment, Energy and Rural Affairs to reply to the debate? Lesley Griffiths.

Thank you, and I thank Members for their contributions. I think it's absolutely vital that we deliver a drainage infrastructure to meet the demand placed on it, whilst also reducing flood risk and protecting water quality and providing a wider range of community benefits, as Huw Irranca-Davies was alluding to. 

I really do hope, in answer to other people's concerns, that developers and SuDS-approving bodies work together to ensure that enforcement action is unnecessary and, certainly, I would hope that the initial approvals sought would make sure that that doesn't happen. 

Regarding the fines—about being proportionate, of course, that's very important. Again, I think the scale of fees that are chargeable for an SAB approval is set out in the regulations, so any larger sums that are incurred might be attributable to the use of a third-party consultant. They're not governed by the regulatory regime for SuDS, but again I think engaging in early discussions with both the planning authority and the SAB will provide the developer with clarity on the design requirements for the site, keeping their detail design cost to a minimum.  

Thank you very much. The proposal is to agree the motion. Does any Member object? [Objection.] Therefore, we defer voting on this item until voting time. 

Voting deferred until voting time.