On 1 January 2010 the Private Water Supplies Regulations 2009 (“Regulations”) came into force bringing increased regulation and scrutiny to private water suppliers.
The Regulations have been drafted with the aim of better protecting human health by ensuring that water from private supplies is fit for consumption and meets certain microbiological and chemical criteria.
Private water supplies are water supplies which are not provided by a water company. It is estimated that there are around 42,000 private water supplies in England and Wales providing over 300,000 people with water.
Most water supplies are provided by district water companies and the quality of the water is regulated by the Drinking Water Inspectorate. However, private water supplies have traditionally been subject to much less scrutiny and it is this regulatory gap that the Regulations seek to address.
The Regulations cover situations where water is abstracted from rivers, lakes, streams and boreholes for human consumption. As a result, the Regulations apply to many different situations from owners of a farmhouse supplying farm cottages to supplies to large military bases or festival events.
Interestingly, the Regulations also apply where the water has come from a licensed water supplier but has then been further distributed; such as being bottled and passed on. The Regulations can therefore apply to a plethora of situations and the obligations on suppliers and the potential liabilities should be considered carefully.
The legislative framework
The Regulations have been drafted to meet the UK’s obligations under the EU Drinking Water Directive 98/83/EC. This directive covers both public and private water supplies. The directive was transposed into UK law to meet the public water supplies element by the Water Supply (Water Quality) Regulations 2009 and the new Regulations address the private aspect.
Local authority obligations
Risk assessment and monitoring
Under the Regulations a local authority must carry out a risk assessment of each private water supply (other than a supply to a single dwelling) within five years of the Regulations coming into force and then every five years after that. The risk assessment must consider whether there is a significant risk of supplying water that could potentially danger human health. They must also monitor water supplies to check compliance with the standards relating to, amongst other things, conductivity and E coli.
The exemption of supplies to a single dwelling has received a level of criticism. Water UK, which represents water service providers, warns that the creation of a two-tier system may result in a significant number of private supplies failing to meet the standards set out in the EU directive which in turn would mean that not all consumers will receive the same degree of health protection.
If a local authority considers a supply in its area is a potential danger to human health they must inform those people who are likely to consume the water and advise them of the level of risk and how they can minimise any such danger (such as boiling water before consumption).
Where any private water supply is a potential danger to human health the local authority must serve a notice on the relevant person under Regulation 18. The notice must prohibit or restrict the use of that supply and specify what action is necessary. Breach of a Regulation 18 Notice is an offence giving rise to a potential two year prison sentence and an unlimited fine.
Under the previous Private Water Supplies Regulations 1991 local authorities were able to enforce the regulations by a similar notice but there was no obligation to do so.
Local authorities also have the power to grant an “Authorisation” which permits a supplier to continue to supply water of a lower standard whilst any remedial action is carried out. Such an authorisation cannot be granted if there is a breach of the microbiological standards as breach of these would pose an immediate danger to human health.
The Regulations impose stricter standards of quality upon private water supplies. The discretion of local authorities in whether or not to take formal enforcement action has now been removed. This, coupled with the potentially severe penalties imposed by the Regulations, should assist in ensuring that private supplies satisfy the criteria for wholesome water.
However, concerns have been expressed that people may not be aware that they are caught by the Regulations. Those people with long-established private supplies which are incidental to other arrangements, such as a landlord renting out a farm cottage on a holiday-let, may remain blissfully unaware of the increased standards required and the potential penalties for failing to comply. For this reason it is suggested that if you have any concerns about private water supplies you should seek legal advice.