Under the Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011 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). The new rules will deal with a legacy of unadopted sewers and drains which has accumulated since the Public Health Act 1936 permitted voluntary adoption of sewers. The Government has published draft guidance on appeals about decisions under the Regulations.

Grounds for appeal

Appeals can be made against inclusion of a sewer or lateral drafting in a transfer scheme, and also against a failure to include. The appeal can be made by:

  • an owner of a sewer or lateral drain; and
  • any other person affected by the proposed declaration or failure to make the declaration.

An appeal against inclusion can be made about a proposal to transfer a sewer or lateral drain 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 because it is Crown Land, and the water and sewerage company has received notice that it should be exempt; or
  • the transfer would cause serious detriment to the appellant.

As for appealing against a failure to include a sewer or lateral drain in a transfer scheme, WaSCs have a duty to transfer relevant sewers and drains into their ownership by 1 October 20111. Relevant sewers and drains are those which have been connected to a public sewer before 1 July 2011. See below about how the rules apply in respect of sewers created after that date.

The Appeals process

To effect a transfer a WaSC must serve notice of the proposal to transfer sewers and lateral drains on the owners of those sewers or drains at least 2 months before the date of the transfer.

An appeal against transfer must be made within two months of the WaSC giving notice of the proposed transfer, or of the proposal being published. The right to appeal is lost if the appeal is not made within 2 months of receiving notice.

The appeal goes to Ofwat, and according to Ofwat's guidance should be copied to the relevant WaSC2. Ofwat might seek further information from the appellant, and will issue a draft decision and receive comments before making its final decision, which will be binding.

Ofwat's guidance says an appeal will need to produce verifiable evidence demonstrating why a transfer should not occur. In the case of an appeal alleging that the transfer would cause serious detriment, the appellant will need to explain this with supporting evidence. To establish serious detriment, the appellant will need to show it would be significantly worse off, financially or otherwise.

The draft guidance states that the burden of proof will rest with an appellant seeking to establish serious detriment, and that Ofwat will need to consider:

  • the balance between benefits to the appellant and others from the transfer;
  • the possible losses the proposed transfer causes the appellant;
  • arrangements for future maintenance of the sewer (Ofwat would expect the appellant to "provide assurances" about this); and
  • the potential benefit to new customers who would have the right to connect the sewer concerned if transferred.

The guidance also states that if serious detriment was proven, Ofwat may still allow the transfer to happen because the benefits outweigh the detriment, or because measures to mitigate it have been identified.

On deciding its appeal, Ofwat can make any declaration the WaSC could have made, and can attach conditions to its decision, including as to the payment of compensation by the WaSC.

Timescales are tight

Once an appeal is lodged within the two month time limit, the WaSC must take no further action in respect of the transfer until the appeal is determined. Ofwat's guidance states that they aim to decide straightforward appeals within three months of receiving the appeal form. It also states that meeting this deadline "will depend in part on the number of appeals we receive, which we cannot predict".

Timescales are therefore very tight: it seems likely that some appeals will not be decided until after 1 October 2011, given that the Regulations come into force at the beginning of July, giving just 4 months to prepare and issue notice of transfer schemes, and lodge appeals in response.

The Regulations contemplate this by specifying that the WaSC is not required to specify a vesting date of 1 October 2011 in respect of a sewer or lateral drain which is the subject of an outstanding appeal. During the appeal process the disputed sewers will remain in private ownership.

As expected some issues are dealt with in the final version of the regulations

  • Rules for supplementary schemes for transfer: a timing issue arising from the original version of the regulations is addressed:
    • the previous draft of the regulations acted to transfer private sewers and lateral drains in existence at the date of the regulations;
    • meanwhile new sewers and drains are dealt with by Section 42 of the Floods and Water Management Act. It makes the right to connect a lateral drain or private sewer to a public sewer conditional on the person constructing the sewer or drain having entered into an adoption agreement with the local WaSC. However, this is expected to be in force from 1 October 2011.

The gap this would leave for sewers and drains constructed after the new regulations and before the new Act is overcome by provision for "supplementary schemes". These will transfer private sewers and lateral drains which are connected to a public sewer between 1 July and the commencement of the new Act.

  • Sunset clause: the regulations provide for a once and for all transfer of private sewers, lateral drains and associated private pumping stations. Once the transfer is complete, which can be as late as 2016 for pumping stations, the regulations have no further purpose. There is therefore a provision that they will cease to have effect at the end of 20 June 2018.
  • Treatment of Crown land: in previous drafts Crown land was exempt unless the WaSC received notice to the contrary. This is switched in the final version so that Crown land is included unless the WaSC has received notice that it should be exempt. The definition of Crown land has also been narrowed: it no longer includes the Duchy of Cornwall, the Duchy of Lancaster, or the Crown's private estates.