Key points

  • Private sewers and lateral drains which are connected to the public sewerage system on 1 July 2011 will be automatically transferred to the statutory water and sewerage companies on 1 October 2011
  • It is possible to object to transfer on certain grounds
  • Private sewers and lateral drains which are not connected by 1 July may transfer at a later date
  • In future it will not be possible to connect a new sewer to the public sewerage system without first entering into an agreement with the statutory water and sewerage company. This will ensure the sewer is built in accordance with new mandatory build standards

Overview

Most properties which have mains drainage do not connect directly to a public sewer. Usually there is another drain or sewer which runs from the property to the nearest public sewer (which is usually underneath the highway). This means that the responsibility for maintenance of the sewers and drains serving a property is currently shared between the statutory water and sewerage companies and property owners.

Following a series of consultations going back to 2003, the government decided that there should be a transfer of private sewers to the statutory water and sewerage companies. This will ensure the sewerage system is comprehensively maintained.

Although this sounds relatively simple, it is not. The draft regulations - which are due to come into force in a matter of days - do not address many of the complexities which businesses have identified with the proposals. The key issues are considered below.

What exactly will be transferred on 1 October?

Private sewers and lateral drains which connect to the public sewerage system on 1 July 2011 will be transferred on 1 October 2011.

A sewer is a pipe which serves more than one property. A lateral drain is that part of a drain (as defined below) which runs from the property boundary to the public sewer.

The government's August 2010 consultation paper contains a useful diagram illustrating the differences between sewers, lateral drains and normal drains.

What will not be transferred on 1 October?

In contrast to a sewer, a drain serves a single property, or buildings within the same curtilage. Private drains (not being lateral drains) will not transfer.

It is therefore important to know if a pipe is a drain or a sewer. Where there are multiple properties on one site, whether the pipes serving them are drains or sewers will depend on whether the properties are within the same curtilage. Unfortunately there is no definition of "curtilage" in the relevant legislation.

The August 2010 consultation paper stated that the government considered the following to comprise single curtilages, with the effect that the transfer regulations would not apply:

Caravan parks; council provided travellers sites; airports; ports; railway stations and "some commercial or industrial sites".

In its response to this consultation paper, the government stated that it would seek to provide, in guidance, "as much information as possible on the intention behind the Regulations and of the circumstances considered to comprise a single curtilage". A hint as to what this guidance might contain may be found in the ministerial statement to Parliament during the debate of the regulations. Here, shopping centres and industrial estates were given as examples of "sewerage systems that serve a single, centrally managed site or curtilage".

Owners and occupiers of many commercial properties are, therefore, in the difficult position of not knowing whether their shared drainage pipe serves buildings within the same curtilage (in which case it will not transfer) or separate properties (in which case it will). If drains and sewers to these sorts of properties are excluded from transfer, the aim of the legislation would appear to be somewhat undermined. The guidance is keenly awaited.

Some other types of sewer will also not transfer. Surface water sewers that drain into soakaways or water courses, rather than to the public sewerage system, are excluded from the transfer process. Sewers owned by railway companies will not transfer, because of the difficulties in accessing them. Sewers in or under Crown land will transfer, but there is an option for Crown bodies to "opt-out" certain sewers. Private pumping stations are subject to a separate timetable for transfer.

How will I know if my sewer or drain will be transferred?

Existing water legislation requires the water and sewerage companies to notify the owners of assets which are proposed to be adopted "unless, after diligent enquiry, ... they cannot be traced". One of the difficulties with the legislation is that there are no comprehensive maps indicating the location of all privately owned sewers and lateral drains.

The regulations therefore provide that notification of the proposed transfer must be published in the London Gazette and in local newspapers. When the regulations were debated in Parliament, the ministerial statement suggested that notices would be sent to individual owners. However, for the reasons given above, this is unlikely. It seems more likely that a standard notification will be included with water bills sent to all customers by the statutory water and sewerage companies.

Notification must be given at least two months before the proposed transfer date: so, by 1 August.

Owners and occupiers of properties which may form part of a single "curtilage" are in a particularly uncertain position and may not be able to tell definitively whether or not their sewers and drains will transfer (see above).

Can I prevent the transfer going ahead?

It is possible to appeal against the transfer of a private sewer or lateral drain. Appeals are dealt with under existing legislation, rather than in the draft regulations.

An appeal can be made to OFWAT by either the owner of the sewer or any other person affected by the proposed transfer. The grounds of appeal are either that the sewer/drain does not meet the criteria for transfer, or that the transfer "would be seriously detrimental" to the appellant.

OFWAT has published draft guidance on appeals for consultation. The document sets out proposed guidance on submitting and the handling of appeals. It states that any appeal must be made within two months of the appellant receiving notification from the water and sewerage company that the sewer will be transferred. This may lead to confusion given that notification is unlikely to be addressed to individual owners (see above). Businesses who have appointed facilities management companies or managing agents to deal with their utilities need to be particularly aware of the deadline for appeals.

As mentioned above, the grounds for appeal include where the proposed transfer would cause serious detriment to the appellant. The following scenario illustrates circumstances in which a third party may feel that a sewer transfer would be seriously detrimental to them. A private sewer serving A's land crosses land belonging to B. The terms of the deed of grant permit B to relocate the sewer elsewhere on B's land (commonly known as a "lift and shift" clause). B may suffer detriment if that sewer is adopted, as he would not be able to require the water and sewerage company to relocate it.

The OFWAT draft guidance provides that an appellant would need to show that they would be significantly worse off (financially or otherwise) in order to succeed on this ground. OFWAT will weigh up the benefits of the sewer transferring with the detriment which will be suffered by the appellant. It may require assurances as to the ongoing maintenance of a sewer which the appellant does not want to transfer.

The consultation closes on 13 July. Final form guidance on appeals will be published by 1 August.

What if my sewer is not connected to the public network by 1 July?

There will be a supplementary transfer at a future date for sewers which are not yet constructed and connected to the public network by 1 July (the cut-off date for the October transfer). Statements made to Parliament while the regulations were being debated suggest that sewers constructed before 1 October 2011 will be transferred on 1 April 2012 (or earlier if provided for in a section 104 agreement). However, this is still to be confirmed. It would appear that sewers which are not constructed in time for the second cut-off date will be dealt with in accordance with the paragraph below.

What do I need to know for new developments going forward?

New sewers and lateral drains will be subject to national mandatory standards of construction. This is being implemented by a different piece of legislation: the Flood and Water Management Act 2010 (FWMA). Anyone wanting to connect a newly built sewer to the public network will first have to enter into an adoption agreement under section 104 of the Water Industry Act 1991. Although such agreements are frequently entered into under the current regime, the key difference once the FWMA comes into force is that it will not be possible to connect to a public sewer without one. The new mandatory build standards will be enforced via the section 104 agreement. A consultation on these standards is expected imminently.

In addition, standards for surface water drainage - known as sustainable urban drainage systems (SUDS) - are also expected to be introduced next year.

Further information

The following resources may be useful: