The drains they are a–changin’
A significant change to the responsibility for private drains and sewers took effect last month but went largely unnoticed, writes Bill Chandler. Local authorities need to be aware of the changes and their impact on the local authority estate.
On 1 October 2011, nearly a quarter of a million kilometres of private drains and sewers transferred automatically into public ownership, without property owners having to take any action or sign any transfer documents and without them having to bring the drains and sewers up to adoptable standard.
Many property owners were completely oblivious to the transfer, which took effect without them even realising. Property owners should have received two months’ notice of the transfer by way of a general notification from their water and sewerage company (or ‘WaSC’) back in the summer, which some will have read avidly but many will no doubt have simply ‘filed’ in their waste paper baskets.
Responsibility
Historically, property owners have been responsible for the drains linking their property to the public sewer, including the length of ‘lateral drain’ between the property boundary and the public sewer (frequently under the public highway). Where a ‘private sewer’ served multiple properties (a sewer is simply a drain which serves more than one property), the various property owners shared responsibility for that sewer.
Across the country, approximately half of all properties were connected to the public sewer by a network of over 200,000km of lateral drains and private sewers.
Due to the frequent difficulties and disputes concerning private sewers and the perceived unfairness of property owners being responsible for drains outside their property, The Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011 were passed. Those Regulations transferred all lateral drains and private sewers into public ownership on 1 October 2011 (subject to an exclusion for railway undertakings and an opt-out for Crown land where access needs to be restricted). From that date they are to be maintained by the WaSCs as part of the public sewerage network.
The Regulations also provide for the transfer of private pumping stations, which will transfer progressively up to 1 October 2016.
Since 1 October, therefore, most property owners are left with responsibility only for those drains which are within the boundaries of their property and which serve only their property.
New drains and sewers
The transfer affects foul, surface water and combined drains and sewers which connected into the public sewerage system on 1 July 2011. Any new lateral drains and private sewers created since 1 July did not transfer on 1 October.
In due course the Government intends to implement section 42 of the Flood and Water Management Act 2010, which will require new drains and sewers connecting into the public sewerage system to be built to adoption standards and to be automatically adopted on construction. At that time a supplementary transfer scheme will transfer any lateral drains and private sewers created between 1 July 2011 and the date on which section 42 is implemented, although this does not prevent such drains and sewers from being adopted in the meantime pursuant to ‘section 104 Agreements’ under section 104 of the Water Industry Act 1991.
Implications and risks
For those residential properties and commercial properties served by lateral drains and private sewers, the transfer of responsibility will generally be good news and should make life simpler in the event of problems with the drains. Going forward, it will be the WaSC’s job to sort everything out. Property owners will no longer be responsible for blocked or collapsed drains outside their boundaries and will no longer have to argue with neighbours over shared drainage runs.
But property owners and occupiers must however remain alert to the potential traps arising from this transfer of responsibility. Owners and occupiers need to remember that there may now be public sewers within their land where there was not before. This will restrict their flexibility to alter the drainage within their own property and may require the involvement of the WaSC if the owner wishes to build, say, even a modest extension to a building which will extend above the line of a drain or sewer which has now become public. Many property owners will unwittingly fall foul of the restrictions on building over or otherwise interfering with adopted drains and sewers, which is technically a criminal offence.
Building works and even large-scale developments will be complicated by this overnight increase in adopted sewers within property boundaries. Despite the obvious potential impact on property development, the precise extent of the newly-expanded public network will often be difficult to establish. The WaSCs do not yet know the full extent of the additional drains and sewers that they inherited on 1 October – hence the generic letters sent out to all customers potentially affected – and it will inevitably take some considerable time for sewer records to catch up with the new reality.
If local authorities hold any records of private sewers and lateral drains which are likely to have transferred on 1 October, those details should be given to the relevant WaSC.
Property owners and developers may also lose the benefit of valuable existing rights relating to private sewers, for example:
- a landowner may enjoy rights to connect into private sewers on adjoining land, maybe negotiated in anticipation of development on the landowner’s property; or
- the landowner may have negotiated ‘lift and shift’ provisions entitling him to divert private sewers within his land if necessary in order to facilitate future development on his land.
Such rights effectively become redundant if the sewer has become part of the public network, since any connection or diversion will now need to involve the WaSC.
Single curtilage?
Even where the location of drains and sewers is known, it may still be far from straightforward to determine where the adopted network ends and private drainage begins.
If a property owner remains responsible for drains within his property which serve only his property, what is the position where a property has a single freehold owner but is divided into multiple units occupied separately, frequently under a number of occupational leases – is that treated as one property (so that all drainage within the estate is regarded as private drains and does not transfer) or as several properties (so that drainage under the estate roads and drainage shared between units is regarded as private sewers and does transfer)?
Thankfully, Government guidance published by the Department for Environment, Food and Rural Affairs (Defra) considers various common scenarios involving a single owner but multiple occupiers. It appears that the following will generally be regarded as a ‘single curtilage’, so that their internal drainage systems did not transfer on 1 October and will remain private:
- office buildings
- shopping malls
- industrial estates
- retail parks
- schools and university campuses
- hospitals
- railway stations, airports and ports
- caravan sites, holiday parks and hotels
The position with residential estates is less straightforward. Individual apartment blocks will generally be treated as a single curtilage, so that internal drainage within the block does not transfer. However, a site in single freehold ownership which comprises, say, three separate apartment blocks will be treated as three properties rather than one, so that internal drainage within each block will not transfer but drainage shared between the blocks will transfer.
Furthermore, ‘conventional housing’ will usually be regarded as a number of separate individual properties, even where the freehold of a group of houses is in the common ownership of a local authority or housing association.
Final thoughts
Since half of all residential and commercial properties were served by lateral drains or private sewers immediately prior to 1 October, this change affects a huge number of properties, including local authority estates.
And all of us – even those not directly affected by the transfer – will feel the effect of the new regime when our water and sewerage bills rise inevitably upwards to reflect the additional – and disproportionate - cost to the WaSCs of maintaining a huge number of additional drains and sewers, most of which were never constructed to adoption standards and many of which have not been maintained as well as perhaps they should.
Bill Chandler is a Legal Director at Hill Dickinson LLP. He can be contacted on 0151 600 8725 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..
