Item 5 on the agenda is the Sustainable Drainage (Enforcement) (Wales) (Amendment) Order 2020. And I call on the Minister for Environment, Energy and Rural Affairs to move the motion—Lesley Griffiths.

Motion NDM7258 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 2020 is made in accordance with the draft laid in the Table Office on 14 January 2020.

Motion moved.

Thank you, Deputy Presiding Officer. I must begin with an apology. The National Assembly has previously approved an Order almost identical to this one. However, the Order debated on 26 November last year contained an error, which prevented it coming into force. We only discovered this following the debate. My officials liaised with Assembly officials to identify whether commencement could be achieved by some other means. However, the conclusion we all reached was that the error prevented the instrument being able to come into force at all. As a result, unfortunately, there is no available solution other than to re-lay the instrument. I wrote to the Llywydd on 11 December, informing her of the position and stating my intention to lay a revised Order, as we've now done. Fortunately, the legal change we are seeking to bring about in the Order is not time-critical.

Whilst Members will appreciate that the circumstances of this case are very unusual, I am mindful of the need to avoid this type of error recurring on another statutory instrument. Therefore, we've introduced an additional check, an assurance procedure, to our internal processes, and have informed the relevant teams working on the preparation of subordinate legislation.

The revised Order contains a new provision for commencement. In all other respects, it is identical to the Order approved by the Assembly last November, aside from the year in the title. To recap, this Order concerns sustainable drainage systems on new developments, which was introduced in Wales from 7 January last year. SuDs, as they are more commonly known, will provide multiple benefits for flood-risk reduction, amenity and biodiversity. The original enforcement Order was made to implement the SuDs provisions in Schedule 3 to the Flood and Water Management Act 2010. Under the Act, approval is required before construction of drainage systems can commence on new sites. The Order applies where approval has not been obtained.

However, a minor amendment is needed to article 21 of the enforcement 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 to a maximum of £20,000. The Order was drafted before section 85(1) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 commenced. The 2012 Act removed the upper limit on the fines magistrates' courts could pass for almost all offences. To provide consistency with similar offences we propose to amend the £20,000 limit to simply a fine. This would enable magistrates' courts to pass an unlimited fine, consistent with amendments to other legislation made by the 2012 Act. The proposed amendment does not expose persons convicted under the SuDs legislation to greater liability, as unlimited fines have always been available for this offence in the Crown Court. But it will reduce delay and expense for defendants and the public. I commend the Order to the 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 27 January 2020, and subsequently reported one point to the Assembly under Standing Order 21.3. That reporting point noted that this Order was originally approved by the Assembly in Plenary on 26 November 2019, however, it could not be made as it did not contain a commencement provision, as the Minister has reported. I welcome the fact that the explanatory memorandum accompanying the Order notes the previous Order and identifies why it could not be made. The explanation provides helpful clarity for the record. Diolch.  

I did think we had been here before, but I thank the Minister, who's made a fulsome apology and perhaps, I think, has gone further even than necessary in terms of accepting or apologising for error. And I think I'd say also I think it's an issue for us as an Assembly. We debated this before, I spoke and I myself did not notice this error or draw it to the Minister's attention and no other Member did. So, I think it is a joint issue, and I think the Minister has acted correctly by bringing it back in the way that she has. 

She's re-emphasised that it's the magistrates, rather than Welsh Government, who'll be applying this fine. And I do have some concern about this concept of an unlimited fine, but when it's applicable generally in so many other areas and is there for the same offence in the Crown Court, I can take no objection of principle to that.

She mentions that there are great advantages in these SuDs applications. I also still just worry that they're also very significant costs and it's an additional hurdle that construction firms in Wales need to get over, and, of course, we want to encourage construction and house building and I just believe there should always be a balance taken in these approaches. But we don't intend to object to the statutory instrument today.  

Thank you. I call on the Minister for Environment, Energy and Rural Affairs to reply. 

Thank you, Deputy Presiding Officer, and I thank both Members for their contributions. I'd just like to say, in answer to Mark Reckless' last point, since this was placed on the order paper, the Association of British Insurers actually came forward with a supportive statement specifically on the point that you raised, in that they very much welcome the plans for boosting the supply of new homes and believe that SuDs can play a pivotal role in ensuring these new properties are built in a manner that helps to manage surface water flood risk at the local level. Because I have seen that there have been some concerns. And I know it's a relatively technical issue—this Order—but I thought it was important to show that, when people do raise that they think it will be an additional burden on the developers, this is what the Association of British Insurers are saying. Thank you. 

Thank you. The proposal is to agree the motion. Does any Member object? No. Therefore, the motion's agreed in accordance with Standing Order 12.36.   

Motion agreed in accordance with Standing Order 12.36.