A Welcome change but a new headache for Developers
The 1st October 2011 will witness a major change in the ownership of many private sewers and drains. The change will doubtless be welcomed by many private owners and housing managers alike, particularly on sites with inadequate arrangements for the upkeep of shared private sewers or where the collection of service charges (to fund the necessary upkeep) had been problematic.
The new regime provides for the transfer of foul, combined or surface water sewerswhich before 1stJuly 2011 connected to a public sewer. The sewerage undertaker will then assume responsibility for the maintenance and repair of the sewers transferred. Expressly excluded from the transfer are drains serving a single building or buildings within a single “curtilage.” These will remain with the property owner(s). However, included in the transfer are those parts of a private drain which serve an individual property and connect to a sewer but are situate outside a property owner’s curtilage. Highway drains or sewers are expressly excluded from the new arrangements.
Private pumping stations and pumping mains will not be transferred to the sewerage undertaker until a later date, not being later than 1stOctober 2016.
It is understood that guidance is to be published by DEFRA, among other things to help define the meaning of the troublesome term “curtilage” and in order to clarify the boundaries of responsibility in cases where there are no access chambers.
Some practical concerns emanate from the new regime. Simplest of all, the imposition of further duties upon the sewerage undertaker will probably contribute to the general rise in utility bills. Control over connections into previously private drains or sewers will now be regulated by the sewerage undertaker. Covenants requiring land owners to contribute towards the maintenance and repair of previously unadopted shared drains and sewers will be rendered at least partially obsolete by the transfer of responsibilities.
In future, if private sewers or lateral drains are to connect to the adopted network then the developer will have to enter into an adoption agreement before the connection is made. The new sewers/ drains will also have to be built to minimum national standards. Section 104 Agreements in place prior to 1st July 2011 will be treated as having terminated before the automatic vesting in the sewerage company. Those sewers and drains connected between 1stJuly and 1stOctober 2011 will have to be adopted under the current regime, unless a supplemental scheme is introduced for their adoption later on.
A potential major concern is in the context of redevelopment of sites. The re-development of land with adopted sewers crossing it has always tended to cause difficulties; primarily because of the need to obtain the consent of the sewerage undertaker to any intended diversions required in order to accommodate the redevelopment. This is likely to be a bigger issue if more of the drains/ sewers crossing any particular site are now vested in the sewerage undertaker. Obtaining consent (to divert an adopted sewer) can be a drawn out process, with the sewerage company likely to require the developer/ land owner to enter into a sewer diversion agreement. Previously, a land owner affected by private sewers/ drains crossing his land may have been able to rely on rights contained within a Deed of Easement- to divert those sewers/drains. Those “private rights to divert” will be lost once the sewers /drains have transferred to the sewerage company.
If the site in question is “tight” then it may be necessary to consider building within close distance of a sewer/ drain; even one which has already been diverted with consent of the sewerage company. If the building is question is to be constructed close to or over a sewer/ drain that is now adopted then the sewerage company will also need to agree to this. The sewerage company may also require the relevant parties to enter into a “Build Over/ Close To Sewer Agreement.” Such an agreement may contain very challenging terms, for example giving the sewerage undertaker rights to enter the site, and to carry out any works which are required in order to protect/ maintain/ repair the adopted sewer. This might extend to demolition works. Furthermore the costs incurred by the sewerage company in exercising these rights may often be recouped from the land owner. The draconian nature of these terms would lead many developers to seriously consider the viability of proceeding with a proposed development, unless for example a revised planning layout can be looked at.
The automatic extension of the adopted sewerage network from 1stOctober is only likely to increase the scope for these problems to arise, and in particular on sites which were earmarked for redevelopment prior to the new regime being publicised. Developers and Housing Associations alike should therefore proceed with caution.