When private sewers were transferred in 2011, the majority of private sewers and sewers in England and Wales were transferred to the public. Thousands of kilometres of pipes – the repair and maintenance of which are responsible for by the owners (often without their knowledge) – were the responsibility of the water companies. While this was undoubtedly good news for homeowners, the construction of these sewers by their former owners created a legal grey area. Each company in the water sector has its own construction policy above or near public sewers. For Severn Trent Water, if a homeowner wants to build in the immediate vicinity of an existing public sewer, they will have gone through one of two processes. Until the late 1990s, they reportedly entered into a construction agreement with Severn Trent Water defining both their rights and those of the water company. It is almost impossible to obtain information from the water authority to confirm whether there should have been a building permit or whether the sewer channel was previously private and transferred as a result of the Transfer of Private Sewer Regulations 2011. This makes it difficult to satisfy a commercial lender that goes beyond approval. A commercial lender must be satisfied that, in a situation where a croque-mort needs access to a sewer under a plot of land, the work does not affect the value of the property and the security of the bank and that there must be some certainty as to the responsibility of a legal croque-mort, in order to compensate for the damage caused in the absence of a formal construction agreement.
There is another problem in trying to determine if there should have been a build-over agreement. In cases where a public sewer has been built without the required permission under the 2010 Building Code, the usual sanctions and enforcement measures apply. This will be a difficult and time-consuming exercise to determine whether the sewers in question were originally a private sewer subject to the Transfer of Private Sewers Regulations 2011 and therefore it would never have been necessary to enter into a “building over” agreement, or whether the sewers in question were always public and should have been in place. For more detailed information on public sewer construction, please visit this page on the Severn Trent Water website The falling position when it comes to residential property and a lack of building permits appears to be liability insurance….