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Transfer of private drains and sewers to the water and sewerage companies

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    30-06-2011

    Regulations to effect the transfer of virtually all private sewers and lateral drains to the water and sewerage companies have now been made, and will take effect on 1 July 2011. For the majority of installations, the transfer is planned to take effect on 1 October 2011.

    Landowners who wish private sewers or lateral drains to remain in their ownership need to be aware that, as explained below, appeals against the proposed transfer have to be lodged within two months of notice of transfer being published or served upon them.

    Background

    It is not generally appreciated that many sewers and lateral drains are not publicly adopted, and so are not maintained by the water and sewerage companies but by individual property owners. Main sewers running beneath the middle of roads are generally adopted, although in some cases the sewerage networks for whole housing developments remain unadopted. The lateral drains that connect properties to the main sewers are often private. This means that any costs of repair and maintenance have to be met by the property owners themselves.

    The Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011 apply to all private sewers and lateral drains in England and Wales except those that are owned by a railway undertaker or are on land belonging to the Crown. With the exception of pumping stations (see below), the transfer will take place on either 1 October 2011 or 1 April 2012. Two months’ notice of the impending transfer has to be served on owners, and this is expected to occur in July.

    In simple terms, the pipe within the curtilage of a property will not transfer unless that pipe drains more than one property. The pipe outside the curtilage which connects to a main sewer will transfer; the main sewer itself (if privately owned) will also transfer.

    The costs of this exercise, and of the increased costs of repair and maintenance arising out of it, will be met in due course by an increase in the sewerage element of bills levied by the water companies.

    Transfer will occur in two stages. Sewers and lateral drains that are connected to the public sewerage system on 1 July 2011 will transfer on 1 October 2011. If connection occurs between 1 July 2011 and the date of implementation of mandatory build standards for new sewers (expected to be 1 October 2011), transfer will take place six months later (expected to be 1 April 2012).

    Notices

    The sewerage companies are required to serve notices on the owners of private sewers and lateral drains unless they cannot be traced. In many cases, it will not be possible to identify individual owners. Notices are therefore likely to be sent by the companies to their customers, and will also be published in the London Gazette and in local or regional newspapers.

    Appealing against the transfer

    An owner or other person aggrieved by the proposal to transfer, or a failure to propose to transfer, a private sewer or lateral drain can appeal to the Water Services Regulation Authority (Ofwat). Ofwat has recently published a consultation on its proposed guidance for appeals.

    Drains (as opposed to sewers or lateral drains) that serve premises within a single “curtilage” will not be included in the transfer. This may be convenient for owners of, for example, business parks who have set up their own private arrangements for repair and maintenance of the drains. However, identifying the extent of a single curtilage, and therefore identifying exactly which pipes will be within such sites can be difficult, and it may be necessary to lodge an appeal against transfer where it is believed that notices have been incorrectly served, or transfer is opposed.

    Guidance on how to identify installations that fall within a single curtilage has been promised by the Government but is not expected to be available until the end of June.

    Another example of a person who might wish to appeal is a third party landowner who owns land that is crossed by a private sewer, where there are “lift and shift” provisions that enable the landowner to require the sewer to be moved if the land is to be developed. Ofwat is able to impose conditions on the transfer in such a case.

    Appeals against transfers must be lodged within two months of notice of transfer being published or served. This time limit cannot be extended. Owners will therefore need to react speedily if they wish to appeal against the impending transfer. The only grounds for appealing against a transfer are that the sewerage company is not under a duty to adopt the pipe in question or that its adoption would cause the appellant “serious detriment”. It is also possible to appeal to Ofwat that a sewerage company has a duty to adopt where the company is not proposing to do so (in which case the two-month time limit does not apply). The draft Ofwat guidance mentioned above sets out the basis on which appeals will be decided.

    A prescribed form must be completed when submitting an appeal.

    Pumping stations

    A pumping station forms part of the sewer on which it is located, and therefore a privately owned pumping station will also transfer to the sewerage company. However, pumping stations will not be transferred on 1 October 2011 or 1 April 2012, but instead will transfer by no later than 1 October 2016.

    Notices served on owners in July 2011 in relation to sewers and lateral drains will also cover related pumping stations, notwithstanding their later transfer. Accordingly it will be necessary for appeals against pumping station transfers to be lodged within the same two-month period. Waiting until ownership of the pumping station is to be transferred will be too late.

    Transitional provisions

    Special provisions will apply to sewers that are currently subject to section 104 adoption agreements. There are a number of possible scenarios, depending upon whether the section 104 agreement has been entered into by 1 July 2011, and whether the sewers have been connected to the public sewerage network by that date.

    In the case of sewers that are subject to a section 104 agreement and connected to the public sewerage network by 1 July 2011, the transfer will occur on the earlier of 1 October 2011 and the date of vesting under the agreement. Please speak to us if you have specific concerns.

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