Out-Law Guide | 11 Aug 2011 | 3:37 pm | 4 min. read
New regulations which came into force on 1 July 2011 required statutory water and sewerage undertakers in England and Wales to take ownership of all private sewers and lateral drains that were connected to the public sewerage system on that date. The transfer will take place automatically on 1 October 2011 and will affect residential and commercial properties alike.
Will my sewer or drain be transferred?
To qualify for the transfer, private sewers and lateral drains must have been connected to the public sewerage system on 1 July 2011. A sewer is a pipe which serves more than one property. A lateral drain is that part of a drain which serves a single property but is outside of the property boundary. Sewers and lateral drains will transfer regardless of condition.
Property owners will no longer be responsible for drains and sewers which drain to the public sewerage system outside of their property curtilage, which is the piece of land attached to a building. They will also no longer be responsible for any sewers within the curtilage.
Are there any exceptions?
Sewers and drains within the curtilage of a property which only serve that property will not be transferred. There is still some doubt as to how this will be interpreted. Government consultation papers provide some clues by indicating that caravan parks, council-provided traveller sites, airports, ports, railway stations and 'some commercial or industrial sites' will be regarded as single curtilages. We have seen literature from a water company showing a block of flats as a single curtilage, but until Government guidance emerges there is little clarity for commercial property owners and occupiers about whether their shared drainage pipes will transfer or not.
Certain other types of sewer will also not transfer. These include any wholly-owned private drainage systems that do not ultimately drain to the public sewerage system - for example those that drain to private treatment facilities, including cesspools and septic tanks. They also include surface water sewers that drain into soakaways or watercourses. Sewers owned by railway companies will also not transfer.
Sewers in or under Crown land will transfer, but there is an option for Crown bodies to 'opt out' certain sewers.
Private pumping stations are subject to a separate timetable for transfer, running to 1 October 2016.
Will I be notified?
Undertakers must give notification of the proposed transfer by 1 August 2011. However, this will not help those owners who do not know whether their sewerage assets are within or outside of the transfer. Notices will not include a plan, as there are no comprehensive maps indicating the location of all private sewers and lateral drains. It is thought the notice will simply consist of a standard notification included with water bills sent to all customers - who, of course, will not necessarily be owners – together with notification in the London Gazette and in local newspapers.
Why is this happening?
The transfer aims to ensure better maintenance of current private sewers and to create a more fair and simple scheme for repair contributions. The cost of the transfer will be passed on to sewerage bill payers.
What if my sewer was not connected to the public system on 1 July?
There will be a supplementary transfer at a future date for sewers which are not yet connected to the public network. Any sewer which is not constructed in time for this second cut-off date will be subject to national mandatory construction standards.
Section 104 adoption agreements
Currently any person who is constructing or proposing to construct a sewer can ask an undertaker to enter into an agreement that, if the sewer is constructed in accordance with the terms of that agreement, the undertaker will take over the sewer at some specified date after the work is completed. This is commonly referred to as a section 104 adoption agreement.
Section 104 agreements which were in place on 1 July 2011 are to be treated as terminating immediately before the sewers and drains to which they relate are transferred - on 1 October 2011 or an agreed earlier date, provided that they were connected to the public system on 1 July 2011. The water and sewerage company will then only be able to use the security provisions of the section 104 agreement to recover expenditure on works carried out, or contracted to be carried out, before the date of the transfer.
Adoption applications which were submitted, but not finalised, by 1 July 2011 will be treated as having been withdrawn.
Could this affect my 'lift and shift' provisions?
Yes. Landowners and developers who previously had the flexibility to 'lift and shift' existing sewers or build over or close to them will lose that right. Public sewers cannot be diverted without the consent of the sewage undertaker.
Is there anything I can do to stop this happening?
Owners who do not want their sewer or lateral drain to transfer – for example, to protect 'lift and shift' provisions or because private maintenance agreements have been put in place – will be able to appeal. An appeal can be made to the Water Services Regulation Authority (OFWAT) by either the owner of the sewer or any other person affected by the proposed transfer. The grounds of appeal are either that the sewer or drain does not meet the criteria for transfer, or that the transfer would be 'seriously detrimental' to the affected person.
OFWAT has published draft guidance on appeals (26-page / 212KB PDF) for consultation. The guidance states that any appeal must be made within two months of the affected party receiving notification from the water and sewerage company that the sewer will be transferred. As notification may not necessarily be addressed to individual owners, businesses who have appointed managing agents to deal with their utilities need to be particularly aware of the deadline for appeals.