Changes to Adoption of Private Drains and Sewers

There is some mixed news for home owners this week. New regulations, made under powers granted by the Water Act 2003, are being considered by Parliament which if approved will mean that any stretches of private sewer or drain which are shared with another property will be automatically adopted by the relevant water authority for the area.

Adoption will occur automatically unless the owner of a private sewer (usually the owner of the land under which it runs) makes an express objection. This may be one reason why the plans, which will be welcomed by most home owners who are connected to private sewers, do not seem to have been widely publicised.

Problems Arising From Private Drains and Sewers

There are two basic problems where a property is served by a shared private drain or sewer. These are rights to use the sewer or drain and obligations to repair it. Often, particularly in older properties rather than newly built estates, the title deeds will not grant any rights over stretches of private pipes or the rights granted will be unclear. This raises the possibility that the owners of any land under which the pipes run could block the properties which they serve from using them, or demand payment in return for granting a legal right.

In practice the level of risk is usually quite low however a buyer will still most likely insist that the seller provides an indemnity insurance policy and possibly a sworn declaration the he has used the sewers without objection. While neither of these demands are excessively onerous, they can be inconvenient, and will cost a few hundred pounds that a seller would rather not spend.

A more serious consequence of a property being served by a private sewer, particularly an extended stretch such as where all of the sewers on an estate are private, is either the lack of any obligation on any party to repair the sewers should they fail or where obligations do exist, the difficulty in enforcing them.

Suppose a sewer collapses a hundred metres from your property. The problem might affect a whole street so you would think that everyone affected would get together and pay for repairs, but what if no one else is prepared, or able, to contribute? A small number of home owners, or even only one, could be left with a bill of several thousand pounds for repairs. It’s unlikely that their building’s insurance will cover this. He may be able to recover some of the bill from the other home owners through the courts however there is no guarantee and in any event this remedy is useless if they don’t have the money to pay a claim.

Effect of the New Legislation

Assuming the legislation does come into force, ownership of any shared private sewer or lateral drain, that is any which serves 2 or more properties, in England and Wales, will transfer automatically to the water authority responsible for the area in which it is located.

There will be no need for any transfer documentation to be drawn up or signed; the law will simply recognise that the sewers or drains now belong to the water authority. The transfer will not happen if the owner of a particular sewer objects, in which case it will remain private.

Just like anyone can travel along a public highway without the need to get express permission, anyone can drain into a public sewer (though consent of the water authority does of course need to be obtained for new connections for example where a new property is constructed). This does away with the problem of a property not benefiting from any right of drainage – it will have an automatic right.

More importantly, it means that the water authorities will be responsible for the sewers and will have a statutory obligation to repair and maintain them. It should be noted that the changes only affect stretches of sewers or drains which serve more than one property. Any stretch of pipe through which sewage from only one property flows will remain the sole responsibility of the owner of the property which it serves.

Potential Problems with the New Legislation

The new legislation is basically good news for home owners however there are one or two issues which might perhaps explain why it has not been as widely publicised as may have been expected. First, the additional liabilities which the water authorities are taking on will have to be paid for. This is almost certain to mean an increase in sewerage charges on our water bills. For all of those people whose properties already connect directly to a public sewer this might seem like a bit of a raw deal (though it has to be remembered that those who will benefit have already been paying for years).

Another issue, which is not a problem for home owners but could be for developers, is the fact that, naturally, a public sewer cannot be relocated without the consent of the water authority. Any developer can apply to have the sewers on the estates they build adopted and provided they are finished with the site they usually will, but where they own land adjacent to a site and through which their new sewers run which could potentially be developed in future they will often reserve the right to relocate the sewer in future – so called “lift and shift” rights. These rights will be extinguished if the sewer is transferred to the water authority therefore developers need to be looking at their land portfolios and deciding whether they need to make any objections.

One last problem that the new legislation will create is to do with extensions, garages and conservatories. It is not permitted to build over a public sewer without the consent of the water authority. If therefore a shared sewer, which is currently private, passes across your property you may find that your ability to extend your property after 01 October 2011 is limited. It is not clear what the position will be in respect of buildings already built over sewers which are to become public though it seems likely that while the water companies will have the usual rights of access, even if these means destroying a structure, they will be obliged to compensate the home owner provided he can show that the structure was built before the legislation came into force. It is vital therefore that the home owner makes a record of any structures built over a public sewer before the new legislation comes into force and has some means of proving when they were constructed.

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