New legislation will transfer responsibility for most private sewers and drains to water companies. Here’s how the latest developments will affect contractors and developers

Major changes of legislation coming into effect on 1 October 2011 will automatically transfer responsibility for most existing private sewers and lateral drains that connect with the public sewer system to the water companies.

There will be many developments under way or in planning that will not be started until much later in 2011 (so will not automatically transfer in October). The difficulty is how to assess the impact of these changes on the planning, design and construction of sewers where there is every likelihood that these will be adopted by, or transferred to, the various water companies.

All new lateral drains or sewers will be the subject of a mandatory adoption agreement

For new sewers and laterals, mandatory build standards and adoption agreements are being introduced by section 42 of the Flood and Water Management Act 2010. Implementation is expected on 1 October 2011 (but could be delayed until April 2012). Unlike the present system, developers will then have to enter into section 104 adoption agreements covering the sewers and laterals before they can connect to the public sewer system. Many more assets will be caught by adoption and developers will need to liaise with the water firms earlier in the development process to ensure that adoption progresses smoothly and doesn’t delay occupation.

As 1 October approaches, Defra continues to wrestle with drafting the mandatory build standards for sewers and laterals. A consultation on the standards was expected before the parliamentary recess but has not materialised. The standards are likely to draw together the diverse set of existing standards but will have to be expanded to cover the smaller sewers and lateral drains.

So what can contractors and developers do in this state of flux? Understanding the changes will help.

  • Section 42 of the Flood and Water Management Act covers mandatory build standards for all new sewers and drains. The water and building industries are updating their guidelines for developers and Sewers for Adoption seventh edition will be published, along with the standards.
  • All new lateral drains or sewers (other than surface water drains) will be the subject of a mandatory adoption agreement, which will enforce mandatory build standards. Only drains located within the “curtilage” of the property they serve will be exempt. (Curtilage is not defined in the legislation and it is hoped the government guidance will clarify its meaning.)
  • Section 42 also qualifies a landowner’s right to connect into the public sewer system. Connection will only be permitted once a section 104 adoption agreement has been completed and new developments will not be allowed to be occupied until sewers have been adopted. It will be important to start section 104 negotiations with the relevant water company as early as possible to avoid delay and so that costs such as fees for technical approval of drawings and site inspection are factored in.
  • Sewers and lateral drains connected to the public sewer system on 1 July 2011 will transfer on 1 October. This is the case whether or not there is an existing section 104 adoption agreement in place.
  • Sewers and drains that are connected to the public system between 1 July 2011 and the date when section 42 comes into force will not be covered by either the October statutory transfer nor the new build standards and mandatory adoption requirements. They will be included in a second statutory transfer, planned for April 2012. Developers wanting to avoid the mandatory adoption requirements should try to bring themselves within the second statutory transfer. This will mean being connected to the public sewer system six months before the second transfer date (ie based on current plans, before 1 October 2011).
  • Adoption applications submitted but not completed before 1 July 2011 (where the sewers/drains were not connected) will be treated as having been withdrawn and a new application complying with mandatory build standards will be required.

Although some aspects of these changes are currently unclear, developers and contractors need to familiarise themselves with the new drainage and sewerage arrangements. Failure to do so may delay sewerage connection and site occupation.

Stephen law is a partner at Penningtons Solicitors

This article was originally published under the headline ‘Water works’