Consent to discharge over non owned land

eve824

Hi,

In the process of buying a plot with full PP. Private drainage down a covered culvert (drainage ditch) running down the side of the plot, that then connects into a ditch in the adjoining field and drains there. I asked for both the consent to discharge from the council which the vendor sent us, and also the consent from the landowner. He has said he doesn't have consent from the landowner but its been that way for 55 years with no issue. I know that 4 years ago a development company bought the field and tried to get support for a community led development, so my concern is eventually this field is developed on and they challenge our right to private drainage on the field. 

Asked my solicitor who feels it's not an issue due to the historic nature of it, and she doesn't think an indemnity policy for this kind of thing exists. I am still not convinced. Am I over-reacting?

davidmcn

eve824 said:

Asked my solicitor who feels it's not an issue due to the historic nature of it, and she doesn't think an indemnity policy for this kind of thing exists. I am still not convinced. Am I over-reacting?

I think so, yes, in relation to the legal rights. There might be practical issues to think of e.g. what happens if the neighbours do something which affects the drainage.

princeofpounds

The property will have established an easement by prescription to drain, as long as the drainage hasn't been secretive or with permission. Indeed they now have a duty to take your water. But you must get this evidenced, e.g. with a statutory declaration, so that if they ever do try to challenge it you can push back. You don't technically need indemnity insurance - that is more for when you don't have a right to do something on the property, but are doing it. But you may want legal cover on your house insurance.

Just to confirm, is this outflow from a septic tank? There are separate and newly-updated regulations around that.

eve824

Thanks both. I feel like everyone is telling me it isn't a problem but my gut feeling says otherwise. The vendor is being pretty unreasonable about a few other things (withholding essential documents he agreed to send us when our offer was accepted, etc) so I am sure asking him to do a statutory declaration will go down like a lead balloon but if it's what needs to happen then we will need to ask.

The vendor is selling the house and the garden plot seperately. There is an existing septic tank to serve the house - but it does run into the same culvert (and they have the right to discharge there, legally). When we build the house we will be installing our own waste treatment system for which the (treated) outflow will need to drain into this ditch also. So I am focused on making sure we have the right legal access in order to do so.  

I've partially read the new regulations for sewage treatment plants and as I understand it, they have to be a certain distance away from the house and an updated system (we plan to install a decent one - probably a Klargester Biodisc).

frogglet

Are you building a brand new property with a totally separate sewage  system which requires access to the drain, or are you replacing the existing one?

eve824

frogglet said:

Are you building a brand new property with a totally separate sewage  system which requires access to the drain, or are you replacing the existing one?

Building a new property - in the garden of the existing house which is being separated and sold at the moment too. 

frogglet

Surely the rights of the other house won't apply to the new house.
Our house has an easement for drainage into land not owned by us, but says for drainage existing at the time of this conveyance in the 70s. So we can't just start adding land drains etc.
Hopefully someone will know.

greatcrested

Whether or not you have the correct rights over 3rd party land, or consent to discharge, I suspect the key will be the quality of the discharge. Any discharge into a water course (which this appears to be) must now meet the w 2020 Envirommental standards, so you'll need a small sewage treatment plant. If that is part of your plan - fine. If not, research the rules.

https://www.gov.uk/guidance/general-binding-rules-small-sewage-discharge-to-a-surface-water

frogglet

greatcrested said:

Whether or not you have the correct rights over 3rd party land, or consent to discharge, I suspect the key will be the quality of the discharge. Any discharge into a water course (which this appears to be) must now meet the w 2020 Envirommental standards, so you'll need a small sewage treatment plant. If that is part of your plan - fine. If not, research the rules.

https://www.gov.uk/guidance/general-binding-rules-small-sewage-discharge-to-a-surface-water

Hes building a new house and installing a Klargester on a separate piece of land next to the current house which has its own system.

princeofpounds

frogglet said:

Surely the rights of the other house won't apply to the new house.

In my first answer, I wasn't aware that the property was being split for the purpose of building a new house.

The fact that the land is split will not in itself matter - both plots can retain rights to the easement, although I think there may need to be some boilerplate in the title to ensure all rights are preserved. Anyone who sells a building plot also gives an implied easement to connect to utilities as well if no express provision is made (Donovan v Rana)

I don't believe building a second property will be an issue either. An intensification of use of an easement cannot be easily denied (whereas a change in the character of use or the identity of the site can). However, I think that changes if it gets to the point where it could be considered a nuisance e.g. the drain physically overflows. McAdams Homes vs. Robinson established some case law in this respect - the OP may wish to look it up and most importantly discuss with their lawyer.

eve824

Thanks all. So, to be clear, the consent to discharge (from the council) is for the new plot - it says Land adjacent XXX. The vendor sorted that in 2019 as he intended to build the new house but never did (for a very sad reason).

So the only issue that I think is an issue is the lack of formal permission to discharge over the field, which is owned by the 3rd party. Sounds like we either need an easement or potentially an indemnity policy incase anyone was ever to challenge our rights in this regard. Trouble is our solicitor doesn't feel its an issue and I hate to be one of those people who tries to tell her how to do her job.....but I want to protect my interests.