Whose drain is this anyway?

This article was included in the Winter 2011 issue of Informer - the real estate newsletter

As of 1 October 2011, the boundaries as to where private drains end and public drains start have moved.  This affects all land, whether residential or commercial.  In essence, the drainage authorities now have additional responsibilities to maintain connections further up the drainage network towards the landowner’s property. 

This changeover has probably come to your attention over the last few of months as the drainage authorities have bombarded their customers with colourful leaflets showing the differences between pre and post 1 October ownership.  Whilst this greater degree of public adoption is generally seen as a good thing, particularly in the residential context, it may cause difficulties in the future unless you bear the change of ownerships in mind.

Key points to note

• Save in direst emergency, a landowner cannot conduct works to a public drain.  Conducting non-authorised works could result in a fine.
• If a landowner has drains that are prone to blocking and which need to be cleared on a regular basis, now may be the time to take remedial action to try and resolve the problem (e.g. by installing fat traps).  Needing to call in the drainage company for a matter which a landowner may have previously resolved themselves is likely to take longer.  Furthermore, the landowner may still be charged for the works if the drainage company thinks the landowner has abused the drainage system.
• Carrying out construction over public drains is a more onerous process than simply complying with Building Regulations.  The landowner will need to obtain specific “building over consent” from the drainage authority which, whilst not necessarily being an expensive process, can be long and tedious.
• Where a drainage system is more complicated than a simple pipe run, for example involving a pumping station, you should expect the public drainage to stop short of the pumping station.  These are not due to be publicly adopted until 2016.

The changeover in drainage system ownership remains a "work in progress" despite the statutory transfer date having passed with DEFRA issuing various guidance on the subject on an ongoing basis, e.g. they are currently deciding if they will require a residential owner to obtain "building over consent" for all works.

Article by Gary Pickard, Director in the Real Estate Practice at Fieldfisher.