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Whose drain is it anyway? Changes to private sewer ownership in the pipeline

The government has decided to transfer ownership of private sewers and drains that connect to the public sewer system over to the water and sewage companies in England and Wales. Transfer will be automatic unless the existing owners object.

The law that implements the change, the Water Industry (Schemes for Adoption of Private Sewers) Regulations, came into force on 1 July and, on 1 October, all privately owned sewers and drains which drained into an existing public sewer on 1 July 2011 will automatically transfer ownership. After 1 October, water and sewage companies will own and be responsible for maintenance of these sewers and drains, which serve both residential and commercial properties.

Reason for change

The change has been brought about because currently some customers are not only paying the companies for sewerage services but are also responsible themselves for the upkeep of private sewers serving their properties. They are, in effect, paying twice for the service and, in doing so, are effectively subsidising all those who are not served by private sewers.

The change has also been introduced to reduce the problem of uncertainty about use of private sewers and drains, and who is responsible for their maintenance.

Specifics of the changeover

Fig 1 is a diagram of the current position and Fig 2 shows the position as of the 1 October 2011.

Fig 1:

 drain1

Point on Fig 1
Current situation

 

Green lines at point 1 A private sewer, as it serves more than one property. It belongs to the homeowner.
Blue lines between arrows at point 3 A private “lateral drain” (i.e. a drain that serves a single property but is outside the boundary of that property and runs underneath the neighbour’s property.)  It belongs to the homeowner.
Blue lines at point 5 A private drain serving a single property and within the boundary of that property. It belongs to the homeowner.

 Fig 2:

  drain2

Point on Fig 2 Situation as of 1/10/11
Orange lines at point 2 A public sewer, belonging to the water and sewage company.
Pink line between the arrows at point 4 A public lateral drain, belonging to the water and sewage company.
Blue lines at point 6 Remains a private drain, as it is within the boundary of the property it serves. It continues to belong to the homeowner.

Rights of access and repair

After 1 October, if a water and sewage company needs to gain access to a sewer or drain they own on land belonging to someone else they will have a right of access, because they own it.  However, a company official must give 24 hours notice of their intention to enter the property, show appropriate identification when they arrive and must only enter during reasonable hours. If a homeowner wrongly refuses the official access, they could be prosecuted and fined.

If the official has reasonable grounds to believe that the sewer or drain is defective, they can inspect it, conduct tests and open up the ground if it is considered necessary.

In terms of the water and sewage company’s right to repair any defects they have found, there is no substantive authority on this at the moment, but it is likely that they will have the right to repair the defect, again by reason of ownership.

If a homeowner suspects a defect after 1 October, it may not be immediately apparent whether the defect is in a private drain (and therefore remains the homeowner’s responsibility) or in a public sewer or lateral drain (which has become the responsibility of the water and sewage company). In the first instance, the homeowner should contact the water and sewage company immediately to clarify the position: they should not do any work without contacting them first. This point is very important, as once transfer of ownership has taken place, anyone interfering with a public sewer or lateral drain without consent could be prosecuted.

Notice and objections to the transfer

On or shortly after 1 July, the water and sewage companies should have served notice individually on all private owners telling them about the automatic transfer.  They should also have told them about their right to object to the transfer. This notice only provides a general description of what will happen, rather than specific identification of the sewers and drains in question.

Notice must also have been published in the London Gazette and in local or regional newspapers, covering all the areas that the water and sewage companies serve.

If any current owners objected to the transfer, their objection must have been lodged with the water and sewage industry regulator Ofwat within two months of notice being served or published in the press, whichever was later. Objections must be on the basis that, if transfer takes place, it would be seriously detrimental to the person affected. If an objection has been raised, Ofwat will decide on an individual case-by-case basis as to whether transfer should take place. More information on the appeal procedure can be found in Ofwat’s guidance document.

Conclusion

There is an element of uncertainty surrounding the regulations and the scheduled change, especially as the regulations are subject to amendment as this article is published. It is anticipated that the current loose ends will be tied up by the decisions of judges when cases reach the courts.

Posted on Sep 27th, 2011 by Lyons Davidson