Most private sewers and drains will automatically be transferred on 1 October 2011 to the ownership of water and sewerage companies, which will take over responsibility for their maintenance.

Which Pipes Are Affected?

The scheme applies to pipes on both residential and commercial premises in England and Wales. It affects private sewers and lateral drains that were connected to the public sewerage system on 1 July 2011. Private sewers are pipes which serve more than one property; lateral drains are pipes which serve only one property but lie outside the boundary of that property. Pumping stations will also be transferred but not until 1 October 2016.

The scheme does not apply to pipes which serve only one property and lie within the boundary of that property. The legislation refers to the “curtilage” of the property but does not define that term, so there is some uncertainty as to exactly which pipes will be transferred.

Sewers and drains owned by railway companies are excluded from the scheme. Those on land owned by the Crown or a government department are covered unless the Crown Estate Commissioners or the relevant government department has given notice to exclude them.  

A further scheme is being developed which will apply to new sewers and lateral drains connecting to the public sewerage network after 1 July and will require them to be constructed to a specified standard.

Is There Any Downside?

In most cases this change will be beneficial to property owners and occupiers as it will clarify the responsibility for maintenance of the pipes and remove the burden from the property owners. Another advantage is that there will be a right to connect to the adopted sewers and drains subject to certain conditions. Water and sewerage bills, of course, will go up to cover the increased costs to the water and sewerage companies, but they estimate the increase will average less than ten pounds a year.

However, the operation of the scheme may be unwelcome if it interferes with existing arrangements for shared drainage on multi-let developments which are working well or if it prevents the use of “lift and shift” provisions which allow for pipes to be diverted to enable future redevelopment to take place. The transfer will also give the water and sewerage companies legal rights to enter private property for access to the pipes.

Can Property Owners Opt Out?

There is no right to opt out, but the owner, or anyone else affected, can appeal to OFWAT if the proposed adoption would be “seriously detrimental” to them, or it does not satisfy the relevant criteria (for example the relevant pipe is not a private sewer or lateral drain). OFWAT has issued draft guidance on how the appeal process will work and the issues it will have regard to in determining an appeal. The draft guidance is available at http://www.ofwat.gov. uk/consultations/pap_con110615privatesewers.pdf.  

The water and sewerage companies must serve two months’ notice on the owners of pipes affected by the scheme and must also place notices in newspapers. That means the notices must go out before August. Appeals must be lodged within that two month notice period. Because of the difficulty of identifying all the pipes affected and their owners, the companies will probably just serve a general notice on all their customers without identifying particular pipes. That would make it impossible to appeal on the ground that a particular pipe does not satisfy the criteria for transfer. It also means that notices going to customers might not come to the attention of the freeholder.

An appeal can also be made against a failure to transfer a sewer or drain and in that case there is no time limit.

Source: The Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011.