NEWS

WATER WORRIES DOWN THE DRAIN?

The Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011 meant that private sewers and lateral drains in England and Wales were transferred into the ownership of the water companies from 1 October 2011.  Gemma James, a partner in the Property Department at Mundays Solicitors, examines whether this marks the end of worries about drainage. 

When surface water and foul sewage leave your property (be it residential or commercial), they rarely enter the public sewer immediately.  Instead, they usually travel along a private drain leading out of your building only.  This drain, until 1 October, was your responsibility. The water and sewage may then:-

• Enter the public sewer directly, which is the sewerage company's responsibility; or

• Enter a shared private sewer, which subsequently connects to the public sewer; or 

• Enter a lateral drain, which is a drain carrying water and sewage from a single property only (yours) under neighbouring land until it reaches either the public sewer directly or initially a shared private sewer, which subsequently connects to the public sewer.

Responsibility for, and rights to use, lateral drains and shared private sewers are sometimes set out in your title deeds, but ultimately in practice the users of these lateral drains and private sewers and the land owners under whose land they pass, had to (before 1 October ) work together to resolve and pay for any issues arising.  The sewerage companies only owned and had responsibility for the public sewers.

Changes from 1 October 2011

The government decided that private sewers and lateral drains would be better looked after if brought under the ownership of the sewerage companies.  However, private drains from your property, within the boundary of your property, will still remain your responsibility.  The transfer of ownership of private sewers and lateral drains will occur in phases:-

• For all properties connected (directly or otherwise) to the public sewer before 1 July 2011, they automatically transferred on 1 October 2011;
• For all properties connected on or after 1 July 2011, up to a date yet to be nominated, they will transfer six months after that date;
• All those connected thereafter will follow specified adoption agreements with the appropriate sewerage company under Section 106B of the Water Industry Act 1991;
• There are transitional provisions in the regulations for new sewers, which are currently subject to existing adoption agreements; and
• Some properties (such as small housing developments, remote farms or small business parks) are connected to a private pumping station before they connect into the public sewer, and you will usually know from your water bills if this is the case.  These pumping stations will not be transferred to sewerage companies until 1 October 2016 and until that time the pumping station owner will continue to be responsible for its maintenance and repair. 

The regulations will not affect:-

• Private drains within the boundary of your property serving your building only;
• Properties connected to a private cesspit or septic tank and not to the public sewer;
• Sewers carrying water directly to a watercourse;
• Drains and sewers owned by railway operators or under Crown land (where the relevant body has opted out of the transfer); and
• Drains and sewers 'within a single curtilage' on multi-occupier sites.  A 'single curtilage' includes caravan or residential home/holiday parks, hotel/boarding houses, office/commercial buildings, industrial/business/retail/science parks, school/university campuses, hospital/other medical facilities, railway stations, airports, ports and residential buildings with multiple flats.  In each instance, the private sewers and private and lateral drains within them will be the sole responsibility of the owner of the site as a whole.

The worries drain away …

The arrangements will benefit users by clarifying ownership of the pipework currently known as private sewers and lateral drains.  In the past, ownership and responsibility may have been debateable from unclear or silent title deeds and consequently caused neighbour disputes.  The sewerage companies will now be liable to repair and maintain them to the correct standard without causing untimely and costly surprises when a problem occurs. 

… But are there blockages in the worry drains?

The sewerage companies are taking on additional work, which means that, under current estimations, our bills are likely to increase between £3 and £4 per annum.  This will possibly be even less appealing to those properties that have always connected directly to public sewers, as they could be effectively subsidising the costs relating to the transferred pipework, which private owners had previously maintained themselves.

You will now require approval to build close to or over a transferred sewer, so you will need to be aware of the positioning of the pipework under your land.  This is an additional layer of administration, as you will require a written consent (which may well incur a charge) from the sewerage company before you can build on your own land.  On the other hand, this should ensure that both the new building and the pipework will be safe.  If you interfere with public sewers or drains without consent, even though they are under your land, you may be prosecuted.

Your sewerage company will have statutory rights to enter your land for the maintenance and repair of the drains and sewers, which will now be in its ownership.  The company should serve notice in advance before doing so, but it could cause you inconvenience. 

Your options and matters for which you should seek legal advice

• The sewerage companies should serve you with a Notice advising of any impending transfer into their ownership of pipework beneath your property.  The transfer will then occur automatically without the need for you to take further action.  If you wish to appeal, you should do so to OfWat (the water industry regulator) within two months of receipt of the Notice and are recommended to seek legal advice before doing so.  You will have the uphill challenge of proving that the transfer is 'seriously detrimental' to you and that you would be 'significantly worse off (financially or otherwise)'.
• The routes of transferred pipework will eventually be shown on the results of any professional Water Search relating to your property.  Your legal advisor can obtain one for you at any time and will typically order one if you are purchasing or mortgaging your property. This will become even more important after the Regulations take effect because there may be public assets within the property's boundary, which can prevent you building on the land, and enable the sewerage company to enter it for inspection and maintenance purposes.  This can affect the value and your intended use of the land.  Your legal adviser can offer further advice, but you will need to bear in mind that it will take the water companies some time to map all of the transferred sewers and drains before they will start appearing on Water Search results. 
• You are recommended to seek input from your legal advisor before completing any agreements with water companies for consent to build on or over transferred drains or sewers under your land.

In summary, the government is attempting to pour some of our water worries down the metaphorical drain, but we must be prepared to encounter the odd blockage. 

Gemma James is a Partner in the Property Department at Mundays LLP, specialising in commercial and residential property and associated legal matters.