Under the Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011 (the Regulations), which came into force on 1 July 2011, the ownership of and responsibility for private sewers and lateral drains in England and Wales will transfer from private individuals to water and sewerage companies (WaSCs). However, private sewers and lateral drains owned by railway undertakers are exempt from the transfer.
An appeal can be made about a decision to include or exclude a particular private sewer or lateral drain in a transfer, but the deadlines for making appeals are strict.
How the Transfer Arrangements Work
A "lateral drain" is that part of a drain that serves a single property and is outside the property's "curtilage" (see below). A "private sewer", on the other hand, is a drain that serves more than one property and connects to a public sewer. Subject to certain exemptions, any private sewer or lateral drain that was privately owned on 1 July 2011 should be included in a transfer scheme under the Regulations so that ownership and responsibility will pass to a WaSC on 1 October 2011. Pumping stations need to be transferred over the next five years up to 1 October 2016.
For new private sewers or lateral drains created after 1 July 2011, the long-term solution is that, under Section 42 of the Flood and Water Management Act 2010, the right to connect a lateral drain or private sewer to a public sewer will be conditional on the person constructing the sewer or drain having entered into an adoption agreement with the local WaSC. Such connection will not be allowed unless the design and construction meet required standards. As for private sewers or lateral drains created after 1 July 2011, and before Section 42 comes into effect (it is not certain when this will be), the Regulations provide for these to be transferred by a supplementary transfer scheme when the new Act commences.
Some Issues for Railway Companies
Lateral drains and private sewers owned by railway undertakers are exempt from the transfer requirements. The definition of "railway undertaker"1 under the Water Industry Act, although not crystal clear, most likely includes franchised train operating companies (TOCs) and other TOCs licensed under the Railways Act 1993.2 However, the transfer provisions may still apply to sewers and drains serving a railway undertaking's leasehold properties, unless (as will be the case with many railway facilities) the owner of the property concerned is also a railway undertaking. TOCs therefore need to verify which of their properties are affected by a transfer scheme and which are not.
A key determinant of whether a drain is a "lateral drain" and therefore subject to transfer, even though it only serves a single property, is that it is outside the curtilage of the property (see above). The Regulations do not define "curtilage", and the Government's guidance on the issue states that while the legal boundary of a property will often define its curtilage, that will not always be the case. "What is attributable to the curtilage of a property…" the guidance states "…may not necessarily reflect ownership". The guidance says that when "…doubt arises it will be necessary to establish the extent of the curtilage in individual cases".
The issue will not always be clear-cut. There may be complex questions for railway undertakings that frequently hold large property portfolios, sometimes involving multiple occupancy within a single legal boundary.
The Government's guidance provides some help. It confirms that for sites in common ownership the lateral drains up to the curtilage of the site will be transferred, but the drains within the curtilage of the site will continue to be the responsibility of the site owner. It cites the example of a development that includes a number of residential flats, and says each block should be regarded as having its own curtilage. Railway stations are given as an example of what will normally be a singly-owned and managed property deemed to be within a single curtilage.
Grounds for appeal
Appeals can be made against the inclusion of a sewer or lateral drain in a transfer scheme, and also against a failure to include.
An appeal does not have to be lodged by the owner of a sewer or lateral drain. An appeal can also be made by any other person affected by the proposed declaration or failure to make the declaration. A railway undertaking whose property lease makes it responsible for maintaining drains and sewers under the terms of a lease would therefore have the standing to make an appeal for or against transfer in appropriate circumstances.
An appeal against inclusion of a sewer or lateral drain in a transfer scheme can be made if:
- the sewerage company does not have a duty to transfer the sewer or lateral drain concerned. This might, for example, be because the sewer or lateral drain was exempted because it is owned by a railway undertaker; or
- the transfer would cause serious detriment to the appellant.
As for appealing against a failure to include, WaSCs have a duty to transfer relevant sewers and drains into their ownership by 1 October 2011. An appeal against a failure to include must therefore be on the basis that the relevant WaSC should have included the sewer or drain concerned in a transfer scheme.
The Appeals Process: Timescales are Very Tight
To effect a transfer, a WaSC must serve notice of the proposal to transfer sewers and/or lateral drains on the owners of those sewers or drains at least two months before the date of the transfer.
There are strict time limits on appeals:
- An appeal against a failure of a WaSC to include a drain or sewer in a transfer scheme must be made within the period specified in the scheme, which must be at least two months. The Government guidance says that this period is three months in the case of transfer schemes made on 1 July 2011 (expiring on 30 September 2011), but this should be checked in individual cases.
- An appeal against inclusion in a transfer scheme must be made within two months of a WaSC giving notice of the proposed transfer, or of the proposal being published. This is likely to mean the deadline for transfer schemes made on 1 July 2011 has now passed, depending on when notice of the transfer scheme was given.
In both cases, the right to appeal is lost if the appeal is not made within the deadline.
Timescales are therefore very tight. It seems likely that some appeals will not be decided until after 1 October 2011, given that the Regulations came into force at the beginning of July.