Summary and implications
Private sewers and lateral drains (see definitions in panel), which are currently the responsibility of their owners, are to be transferred to water and sewage companies in England and Wales automatically from October this year. This transfer will have implications for owners of commercial property and developers (see link to previous publication – January 2011). Notification relating to the proposed transfers will be issued shortly and any appeals will need to be made within a short two month period from receipt of that notification.
The Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011, which relate to the automatic transfer of private sewers and lateral drains, came into force on 1 July 2011.
How will the transfer take place?
Before the relevant water and sewerage undertaker can exercise its power of adoption, it is required to serve two months’ notice of its intention to do so. The two month notice period is to allow affected owners a period in which to appeal against their assets being included in the transfer. In order to meet the 1 October 2011 deadline, these notices will be served by 1 August 2011.
What steps need to be taken now?
Owners of private sewers and lateral drains, and also pumping stations, need to be assessing whether their assets are likely to be included in the automatic transfer. In many cases, the transfer of these assets will not be of concern. However, in multi-let sites or developments (or on development sites) where provisions relating to, for example, lift and shift, repair and maintenance have been put in place, owners (or those affected by the proposals) may wish to appeal against the transfer.
Owners (or other affected parties) will need to act promptly if they wish to appeal. Any appeal must be made within two months of receipt of the notice – this is an absolute time limit and any appeal submitted after this time will not be dealt with.
Owners should also be aware that the notices from the statutory undertakers will only be served on the relevant customer, which may not be the owner.
Grounds for appeal
The primary grounds for appeal are that:
- The adoption would be seriously detrimental to the person affected;
- The adoption does not satisfy the relevant criteria established for the particular adoption scheme (i.e. the land is exempted as it is owned by a railway undertaker or is Crown land and the relevant authority has opted out of the scheme).
Ofwat will be responsible for considering appeals in relation to the anticipated transfer and have prepared draft guidance for the submitting and handling of appeals. A four week consultation which sought views on the guidance concluded on 13 July 2011, following which it is expected that the guidance will be published by 1 August 2011.
The current appeal proposals provide that in order to appeal on the grounds that the transfer would cause serious detriment, a full explanation, with supporting evidence, will need to be given. Even if a serious detriment can be shown, the decision may still be taken to transfer the sewer/lateral drain either as initially proposed or subject to conditions designed to mitigate the detriment. If an appeal is successful, meaning that a sewer is not transferred, it is likely that assurances relating to future maintenance will need to be given by the owner of the assets.
The transfer of pumping stations (and associated rising mains) that serve two or more properties will transfer to public ownership, but at a later date. As the condition of pumping stations needs to be assessed, and some will need to be upgraded or replaced prior to transfer, the automatic adoption for these will not take place until 1 October 2016. However, pumping stations may be transferred individually or in a group at any time before this date. There is no further guidance as to when this will take place.
The notices that will be served in July may also relate to the transfer of pumping stations. If so, any appeals relating to those pumping stations must be made within the relevant two month appeal period, even though the transfer will not happen until much later.
Private sewer – a pipe serving more than one property
Lateral drain – the section of pipe serving one property, but which extends beyond the property boundary
Drain – a pipe serving a single property