It would appear that the water industry has come up with that most rare of beasts, some fairly sensible legislation. It relates to the adoption of drains and sewers and which is due to take effect on 1 October this year. Although all householders should already have received a leaflet through their letterbox from their local water or sewage company, explaining the changes, enquiring (perhaps that should read ‘cynical’) minds will wonder what the actual consequences of the adoption will be, especially for larger, rural properties. For such properties, the (often antiquated) drainage systems are unlikely to conform to the neat diagrams on the water companies’ literature. In writing this article, I shall try to fill in some of the gaps.

With apologies if you already know this; a ‘drain’ is a single drain, taking wastewater from one building, whereas a ‘sewer’ is a pipe taking wastewater from more than one building. A ‘lateral drain’ is that part of the pipe running from the curtilage of the building to the sewer into which it drains. Surface water comes from roof down pipes, driveway and patio drains; foul water comes from toilets, sinks, baths and the like, and ‘wastewater’ is used to refer to them collectively. Finally, ‘curtilage’ is one of those commonly used, but ill-defined words. Certainly it is not defined in the adoption legislation, which is arguably its major flaw. Typically, ‘curtilage’ means the land immediately surrounding a building (or house), including associated buildings and structures, but excluding associated open fields beyond. In smaller, urban properties, the curtilage usually corresponds to the boundaries, however in larger properties it is often a matter of some debate as to where the curtilage ends and the open fields begin.  

The current situation is that you are responsible for all drains, sewers and associated pipes, between the building they serve and the public sewer (if any) into which they drain. Depending on the nature of your property, this can be more or less complicated: unusually, terraced houses often suffer worst under this rule, as although their drains tend to ‘link up’ before then running out to the mains sewer in the road, there is rarely anything documenting how the cost of and responsibility for repairs is split – preventing the un-neighbourly disputes arising from such situations is one of the main aims of the new legislation. Detached houses are simple; if there is a problem between your house and the mains sewer, you pay for it. Unfortunately although clear, this is often very expensive and a small industry has sprung up offering insurance against such costs. If your sewers and drains connect to a septic tank, cesspit or simply run out onto land you are responsible for the whole lot. Needless to say, if such a system is shared with other property, there ought to be a formal agreement in place regulating how pays for what and who carries out the repairs (see articles passim).   

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The new regulations (the ‘Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011′) provide that on 1 October 2011, the ownership of all private drains, lateral drains and sewers, in existence on 1 April 2011 and which drain into the public sewerage system will be transferred to the relevant water or sewage company. Only the pipes running directly from your house or building and located within its curtilage will remain your property and responsibility. There is no distinction between residential and commercial buildings. The only exceptions to the mass-adoption are private drains and sewers not draining to the public sewerage system i.e. those draining to septic tanks or similar, and drains and sewers situated on Crown or railway land. Privately owned pumping stations will be the subject of a second adoption to take effect by 1 October 2016. Other points to note are that: drains and sewers installed after 1 July 2011 will have to conform to new, higher national standards and be separately adopted, before they can be connected to the mains and that existing adoption agreements will effectively be superseded by the new legislation. The question of new developments is, however, complicated and should be carefully investigated if it affects you.

The primary advantages of the adoption are increased certainty and decreased responsibility (i.e. cost) for private owners.  

But what of the disadvantages? Inevitably, perhaps, sewage bills will increase (between “0.25p and £1.17 per month” say the Government) although this is at least probably cheaper than paying for repairs yourself. Although those with existing repairs insurance policies may be tempted to junk them, I suggest you first check with your insurers; and for those with buildings with larger curtilages (and therefore more metres of pipes to the public system) you could still be liable for expensive repairs. The other major disadvantages are the lack of definition as to what constitutes the curtilage of a house or building and where, therefore, private responsibility ends and public responsibility begins. If there is drainage to various buildings on an estate, the problem will be amplified. For particularly large estates it may be worth trying to get a direct agreement with your local water company setting out who is responsible for what; in other cases, maintaining suitable insurance may be the best option.

The second problem is that those with existing private agreements regarding drains which are subsequently adopted, will lose the benefit of any rights in those agreements including any ‘lift and shift’ provisions i.e. rights to re-route drains on your land at no cost. The Water Industry Act 1991 does provide that landowners can request that sewers are relocated, but undertakers have discretionary powers to charge landowners for such diversions (and you can bet they will). Short of appealing to your water company’s better nature, there may be some scope for altering the private arrangement such that the other party has to pay the company’s costs.

Although I have just highlighted some of the disadvantages, I think that on balance (and on a utilitarian analysis) the new legislation will be an improvement for most home and landowners. For those with less standard properties, however, now may be a good time to review your drainage system and ensure that it – and related agreements and insurance – is fit for purpose and will not leave you stuck in the proverbial.

About Elizabeth

Despite being one who feels the cold,

Elizabeth braved a move to Northumberland and has worked there as a

solicitor with the firm of Dickinson Dees LLP, in the Agriculture, Farms

and Estates Team, where she started life as a trainee in 2003. As part

of this specialist and nationally renowned team, she works both for a

number of larger estates and trusts on an ongoing basis and also on

one-off matters, covering the range of rural property law, including;

sales and purchases, sporting rights,rights of way, easements and

tenancies, to name a few. Outside the office, she nearly managed to get

sent to the North Pole, loves the occasional hunt with the CVNNH and

continues to try and break the 4-hour mark for a marathon. She lives

with her husband, a terrier and a very silly basset.

She can be contacted through Dickinson Dees at 0191 279 9000