Legislation now means that, for driveway paving in England and Wales (slightly different in Scotland and Northern Ireland; not applicable in RoI), it is no longer permissible to drain surface water onto a public highway (the road or footpath) unless planning permission has been granted, and there is a preference for either permeable paving which deals with the surface water on site, or to drain to SUDS such as a soakaway .

The most commonly asked questions about this legislation are examined below....

When does the legislation come into effect?

It becomes 'law' on October 1st 2008 and will therefore apply to any driveway projects that break ground on or after that date.

Does it apply to the whole United Kingdom?

No: the new Legislation applies only to England, but it is thought that similar guidelines will be issued in Wales, while Scotland and Northern Ireland already have their own arrangements.

Do I need planning permission for my new driveway?

Only in exceptional cases. As almost explained in the vaguely helpful Explanatory Memorandum , the Legislation has been structured to deter homeowners applying for planning permission, causing them to consider alternatives such as permeable or porous paving , or a suitable suds-compliant drainage system rather than go through the rigmarole of forking out 150 quid and waiting for up to 8 weeks to see if PP will be granted to install a pavement that discharges directly to the domestic drains or, in exceptional cases, onto a public highway.

Will my patio be affected?

No: the legislation applies only to paving and hardstanding installed to the front garden, which legalese defines as being the "land between a wall forming the principal elevation of the dwellinghouse and a highway" , which in everyday language means the area between front of the house and the public highway (footpath or carriageway), so rear garden patios, courtyards and access paving at the side of the house are not affected.

What if I'm only having my existing drive re-paved?

All paving and surfacing, whether it's new work, replacement, or extension, is subject to the new legislation, so even if you're only replacing your existing flags with a bit of block paving, the work will have to be installed in accordance with the new regulations.

Do I have to use permeable paving?

Not necessarily. Thankfully, the legislation and the accompanying Guidance Document took heed of the comments submitted by the industry and has expanded its original plan which mentioned only "permeable or porous paving" , and now any surface is permitted on the condition that it drains "to a permeable or porous area or surface within the curtilage of the dwellinghouse" , which means a soakaway , rain-garden or other suds installation located within the grounds of the property. Consequently, it will be possible to have macadam, PIC, resin-bonded surfacing or any other surfacing as long as it drains to ground and does not discharge onto the public highway or directly into the domestic drains.

What materials can be classed as 'permeable'?

The most commonly encountered permeable pavings and surfacings are, in no particular order:

There are permeable or porous versions of many pavings and surfacings, such as porous resin bound surfacing and permeable stone setts. There are even permeable concretes, but these are not really suitable for residential driveways. Standard flag paving, whether it is natural stone or concrete, is tricky to install as a permeable surface, but it can still be laid as an impermeable surface and drained to a soakaway or rain-garden.

What types of paving or surfacing will I be able to have once the legislation comes into force?

In theory, all and any. Although the legislation and the accompanying guidance makes repeated mention of permeable and porous paving, it will be possible to use impervious paving as long as it is drained to a suds-installation such as a soakaway.

Will my driveway cost more?

Probably. It should be obvious that the type of paving chosen will have a direct impact on the cost, and there is ongoing debate both within the industry and amongst the legislators about the true impact on cost, but it is generally agreed that permeable paving is more expensive than conventional paving and, in most cases, a suds-installation is an additional expense when compared to the traditional methods of sloping towards existing drains or the public highway.

Estimates of cost increases range from a 1% to 50% but as this legislation is new and untested, reliable and verifiable costings are few and far between. However, as a very rough guide for a typical installation, cost increases of 15-25% can be considered 'average'.

Why can't the driveway slope towards the road, like all the other drives on my street?

Well, it can slope towards the road, but what it can't do is allow surface water to cross from your property onto the public highway. There will need to be some form of interceptor drain to collect the water before it reaches the public highway and to then direct it to a suds installation.

Actually, you've never really been allowed to discharge surface water onto the public highway but there's been a policy of turning a blind eye to the practice as, up until now, most surface water ended up in the same sewer, whether it got there via the domestic drains or by running along the highway and entering a gully in the road. After October 1st, water on residential properties will have to be sent to a soakaway or other suds installation rather than being allowed to directly enter the drains and sewers.

I only want a simple path. Will this have to be permeable?

Not necessarily. The legislation only applies to installations of 5m² or more, so a simple path that was just 5m long and 900-1000mm wide would be exempt.

It's really heavy clay where we live and a soakaway isn't going to work. Will I need to apply for planning permission to use 'normal' paving.

Not necessarily. There is provision in the Guidance (but not mentioned in the Legislation) that will allow for an 'overflow' pipe from a soakaway to be connected to the domestic drains to ensure the system continues to function when the soakaway is 'full' and operating at maximum capacity.

This is a potential flaw in the guidance as it would allow for a pitifully small or 'token' soakaway to be installed at minimal cost in the knowledge that it will never cope with the inflow from even a 'normal' rain shower, but will simply fill up in a matter of seconds and thereafter send water directly to the drains. Not that we would ever condone such an installation, of course!

How do I know if my garden is suitable for permeable paving?

A good paving contractor will be able to advise you. There is a simple test that can be undertaken to determine the permeability of the ground and a growing number of contractors have been trained to undertake this test. As a very simple guide, you could carry out an even simpler, maths-free test for yourself. Dig a hole in the area to be pave that is roughly 600x600mm and deep enough to clear all topsoil, leaving the sub-soil exposed. In this subsoil, dig a hole that is 300x300mm in plan and 300mm deep. Fill this hole with cold water. If the hole empties within 12-24 hours, your ground is probably (but not definitely) suitable for a soakaway.

What questions should I be asking the contractor to ensure my new driveway complies with the legislation?

A good contractor will be able to explain exactly how the driveway will be drained. When permeable paving is being used, the contractor will be able to describe the construction and tell you exactly how deep each will be layer of construction. When a soakaway or rain-garden is to be used, the contractor should be able to give the location and dimensions of the planned structure.

Be wary of any contractor that seems uncertain of how or to where the driveway will drain. Be aware that sand-filled joints, such as those used with conventional block paving, are NOT permeable, but become sealed with detritus in a matter of weeks after installation.

Other resources...

From your beloved government:

The Legislation - ignore everything other than Class F

The Explanatory Memorandum - jump straight to page 19

The Guidance - generally readable but still apallingly useless

From other paving websites:

Elsewhere on pavingexpert.com: