Changes to the rules on the adoption of sewers mean that the automatic entitlement to connect new drains to a public sewer have been lost in some areas, with the remainder of areas to follow.
Most developing bodies are aware of the changes a few years ago to the arrangements for the adoption of newly constructed private sewers and lateral drains (“Sewers”). We know from experience that some developing bodies benefitted from the automatic adoption of Sewers on sites that had recently been developed.
Finalisation of the new approach has been staggered across England and Wales and there is a potential trap for the unwary, or for those continuing with the traditional approach and not taking heed of the new rules.
The new rules are already affecting a number of sites in England and Wales, with the remainder to follow. Some sites have suffered from substantial programme delay as a result of these changes with consequential cost increases and missed grant funding milestones. There is also the potential for an adverse effect on mortgageability.
The old rules
Upon giving notice to the relevant sewerage authority, the owner had an entitlement to connect new Sewers to the public sewer. There was also an opportunity to enter into a Section 104 Agreement (“Adoption Agreement”) for the adoption of the Sewers on completion of works which placed ownership of the Sewers and responsibility for maintenance with the sewerage authority, although this was not mandatory.
The effect was twofold, either there was an entitlement to connect to the public sewer whilst the new Sewers could be left private and un-adopted, or the more usual, of an Adoption Agreement being finalised and entered into. It was not unusual for the Adoption Agreement to be entered into after the Sewers had been connected with the public drainage network or when works had completed.
The new rules
The new rules put a much tighter control on the construction of new Sewers that connect to the public network with two major benefits; 1) clarity of ownership and responsibility for all Sewers connecting to the public sewer; and 2) the standardisation of the design and construction of new Sewers.
Since the new regime started for many areas, an owner’s entitlement to connect new Sewers to the public sewer was replaced with an entitlement to connect and communicate with a public sewer conditional upon:
1. an Adoption Agreement having been entered into; and
2. the Adoption Agreement including provisions in respect of construction standards
The relevant standards to which the new Sewers are to be built depends upon the area in which the development is located. The practical issue being that technical approval will no longer be given so as to follow construction.
Once the Adoption Agreement is in place and complied with, the sewage undertaker must ensure that the Sewers are adopted. This is an onerous obligation to police and the reciprocal position to help the sewage undertaker is the conditional entitlement. In other words, failing to have an Adoption Agreement in place before commencing any works means there is a risk that the right to connect to the public sewer could be lost or delayed.
To prevent circumvention of project delay, it is a criminal offence for any person (which could catch owners, developers and contractors) to cause the communication of a Sewer with the public sewer without an Adoption Agreement being in place.
The new rules have not yet been implemented in some parts of England and Wales. This means that for the time being in these areas Adoption Agreements remain optional (insofar as there is no restriction on connecting to the public sewer).
How to protect yourself
Whether your developments are based in areas where the new rules or the old rules apply, or your developments cover both geographical areas, taking steps now will save you time, resources and the risk of criminal sanctions down the line. Some basic steps include:
• establish which rules apply;
• establish what the applicable standards will be;
• programme for the applicable rules and the potential for delay;
• allocate time and monetary risk in the build contract and consultant appointments
For more information on this article please contact Nicki Winstanley at nwinstanley@hylandlegal.uk or on 0161 312 3400 or Paul Hyland at phyland@hylandlegal.uk or on 0161 312 2700.
This article has been provided for your general interest and information only. It is not legal advice and should not be acted on or relied upon in any way. It does not create a solicitor client relationship between Hyland Legal and any other person. Appropriate legal advice should be taken before applying any information in this document to any facts and circumstances, before taking or refraining from legal action or before taking a decision on any issue.