Water industry regulator Ofwat has rejected a proposal by Anglian Water to adopt a private sewer following an appeal under section 105b of the Water Industry Act 1991.

Ofwat received an appeal in September 2011 against a proposal by Anglian Water Services Ltd to adopt the surface water drains and the foul water drains owned by an unnamed appellant at a site.

The Water Industry (Scheme for Adoption of Private Sewers) Regulations 2011 came into force on 1 July 2011, together with the Secretary of State’s scheme for the compulsory adoption of all private sewers, lateral drains and pumping stations in “the area of every sewerage undertaker whose area is wholly or mainly in England.”

The appeal was made on the ground that there is no duty for Anglian Water to adopt the drains and that any adoption would result in serious detriment to the appellant – the only two grounds allowed against a company’s compulsory transfer of private sewers and lateral drains.

The appellant is the owner of freehold or long leasehold rights on several sites at which sewerage services are provided by statutory sewerage undertakers, including Anglian Water. The appellant argued that the drainage infrastructure on the site consists of drains and not sewers or lateral drains and that on this basis, the drains were not transferable to Anglian Water under the Regulations and the Scheme. The appellant took the view that Anglian Water was under no obligation to adopt the drains, and that if they were transferred, this would result in serious detriment to them.

Anglian Water responded in August 2012, telling Ofwat that the appellant had provided them with information about the maintenance grounds, buildings, car parks and roads within the boundary of its ownership.  However, the water company expressed concern that the land registry plan provided by the appellant showing the extent of the property appeared to include a roundabout and a road in which an Anglian Water owned foul sewer was located

Anglian Water said it was possible that a Sainsbury's supermarket located on the other side of the road also drained into Anglian Water’s foul sewer, which could then affect the position regarding the applicability of the Regulations and Scheme. This would result in shared drainage of the site and the supermarket, meaning that the drains would be eligible for adoption.

Anglian Water informed Ofwat that it did not have drainage plans for the site to confirm their opinion of “shared drainage” suggested that a CCTV survey of the relevant sections of the network should be conducted to confirm the position. However the water company stated that “someone will need to cover the cost of the survey” and asked Ofwat’s views on the issue.

The appellant subsequently told Ofwat that they were not agreeable to paying Anglian Water’s cost of undertaking a CCTV survey because they saw no reason why they should pay for Anglian Water to undertake a survey to confirm the company’s understanding of either Anglian Water’s or a third party’s infrastructure.

The appellant added that it had separately carried out a site survey and was of the opinion that none of the infrastructure was located on the site or connected to the drains.

At Ofwat’s request, the appellant subsequently agreed to share their site survey results with Anglian Water. Ofwat requested further information from the Appellant in December 2014, which included the land registry plan and a plan showing the location of the Drains which the appellant then provided.

Ofwat then met with the appellant in January 2015 to gain a better understanding of the location of the drains. 

Setting out its final decision Ofwat said:

“Ofwat has provided Anglian Water with multiple opportunities to explain, and to provide evidence, as to why it considers that there could be a connection by a third party. However, Anglian Water maintains that they do not consider that they should be paying for the cost of the CCTV survey to support their view, and no other evidence has been forthcoming.”.......

“Anglian Water considers that the extent of the site appears to include a roundabout and a road in which an Anglian Water’s foul sewer is located. Anglian Water considers that this influences the single curtilage factual position. They also add that it is possible that the site also drains into this foul sewer which would then affect the position in terms of shared drainage. However, Anglian Water have provided no evidence to support their view that the site consists of multiple curtilages or that there is a shared connection with the Sainsbury’ site.”

“We consider that for the purpose of the Act, drains serving a single site, and located within its curtilage, remain the responsibility of the site’s owner. In accordance with Defra guidance, a single curtilage may contain a number of individual properties under common ownership or with separate lease or other agreements but which have common drainage arrangements. Therefore, we consider that because the drains under appeal fall within the curtilage of the site, they are not eligible for adoption under the Regulations and the Scheme.”

Ofwat concluded that the Appellant’s appeal should be upheld and that Anglian Water’s proposal to adopt the Drains should be disallowed with no transfer of the drains to Anglian Water.

Click here to read Ofwat’s Final Decision in full.