Adoption of private sewers

Updated September 2011

A major change in relation to responsibility for the maintenance of sewers came into effect on 1 July 2011 as set out in the Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011. From 1 October 2011, all private sewers and lateral drains in England and Wales which, immediately before 1 July 2011 communicate with a public sewer, will be adopted by the relevant local sewerage undertaking.

Sewers (apparatus which serves more than one property) and drains which serve a single property but which extend beyond the property boundary or curtilage will be adopted. The Regulations apply to sewers and drains draining both residential and commercial properties and, no later than 2016, all pumping stations relating to those sewers and drains.

The transfer will be automatic and will occur regardless of condition. The future cost of works will be covered by an increase in drainage bills.

Property owners will receive a notice from the sewerage undertakers but the notice is in a generic form and will not identify the route of any drains or sewers affected. There is a right to appeal where owners and affected parties want to retain ownership of the sewers and drains and OFWAT has published guidance in relation to the appeal process. Appeals must be made within two months of receipt of notice from the undertaker of its intention to transfer ownership. If no notice is received then an appeal should be lodged by 30 September at the latest as OFWAT will not consider any appeals out of time.

Drains which are within the curtilage of a property will not transfer unless the drain is a lateral drain and used by others. There is currently no guidance as to the definition of 'curtilage'. The provisional non-statutory guidance from the Department for Environment, Food and Rural Affairs states that:

"A single curtilage may contain a number of individual properties under common ownership (such as a shopping mall) or with separate lease or other arrangements (such as some commercial estates) but which have common drainage arrangements by virtue, for example, of the site’s freehold management. Such sites should be regarded as having their own internally managed drainage which would not be regarded as private sewers for transfer since the site itself comprises a single curtilage."

Specifically the guidance provides that large sites such as caravan parks, council-provided traveller sites, airports, ports and railway stations will be regarded as having a single curtilage.

If an owner of a private drainage system to which the Regulations apply has retained the right to move the route of the drains ('lift and shift' provisions), that right will be lost once the drains and sewers are adopted. The loss of this right may be a reason to appeal against adoption. Section 185 of the Water Industry Act 1991 allows a party to apply for the diversion of public sewers but the applicant would have to pay the sewerage undertaker's costs.

Where any sewers or lateral drains are the subject of a Section 104 agreement under the Water Industry Act 1991 which was in effect prior to 1 July 2011, the agreement will be treated as having terminated prior to the vesting of the sewers and lateral drains. The security provisions in any agreement can only be called upon in relation to expenditure incurred on works carried out or contracted to be carried out before the date of vesting.

Where a developer has entered into a Section 104 agreement but has not yet constructed or completed the sewer or lateral drain, it will continue to have effect.

In future, any private sewers or lateral drains which are intended to connect to the public network must be built to a minimum national standard and the developer must enter into an adoption agreement before a connection can be made.

A new build standard for private sewers and drains is not expected to come into effect until 1 October 2011. Sewers built between 1 July and 1 October 2011 will not be automatically transferred and will remain in private ownership unless adopted following an application in the usual way, or unless a supplemental scheme is made under the Regulations.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2011. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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