Clients who are buying or selling a house with a septic tank or small sewage treatment plant need to know about the relevant regulations and their implications – which could include immediate and ongoing costs. William Marriott explains

It is an offence to discharge sewage to ground or surface waters without an environmental permit. However, most discharges of domestic sewage will be exempt, provided certain requirements are met. Clients who are planning to buy or sell a property with a septic tank or small sewage treatment plant should be aware of the relevant regulations and their implications.

The current law is to be found in the Environmental Permitting (England and Wales) Regulations 2016 (EPEWR 2016), which came into force on 1 January 2017 and consolidate earlier regulations. The regulations specifically refer to the ‘general binding rules’ for small sewage discharges.

The general binding rules

The general binding rules were first introduced on 1 January 2015. They consist of the conditions contained in the EPEWR 2016 and the technical requirements specified by the Environment Agency in guidance to operators.

The operator is the person who has control over the operation of the septic tank or sewage plant (which I will refer to as the system). This could be the owner of the system, someone who uses it (such as a neighbouring landowner), or another person who has agreed to be responsible for the maintenance of the system in a written agreement (such as a tenant).

The general binding rules were designed to simplify the regulation of small sewage discharges. Septic tanks and small sewage treatment plants no longer need to be registered, and there is no legal requirement to keep records of maintenance (although this is advisable).

Key points

You can discharge up to two cubic metres per day to the ground (such as a back garden) using either a septic tank or small sewage treatment plant. The Environment Agency has published a calculator for householders to work out the daily discharge.

You can discharge up to five cubic metres per day to surface water (such as a river or stream), but you can only use a small sewage treatment plant, not a septic tank. Historic septic tanks that discharge to surface water must be replaced or upgraded by 1 January 2020. Home owners will need to replace or upgrade the system before this date if they sell the property.

The system must comply with the relevant British Standard that was in force at the time of the installation, and must be operated in accordance with the manufacturer’s specification. Maintenance must be undertaken by someone who is competent, and waste sludge must be safely disposed of by an authorised person.

Discharges starting on or after 1 January 2015:

  • require both planning permission and building regulations approval for the system
  • are not permitted if any part of the building that the system serves is located within 30 metres of a public sewer or if the discharge could reasonably be made to the foul sewer
  • will require a permit if the discharge is in or close to designated sensitive areas.

A cesspit is a sealed tank and owners do not need to comply with the general binding rules or apply for an environmental permit to have one. However, the cesspit must be maintained and emptied regularly by a registered waste carrier.

Conveyancing issues

When a property is sold, the operator must give the purchaser a written notice stating that a small sewage discharge is being carried out, and give a description of the waste water system and its maintenance requirements.

If the seller currently has a septic tank that discharges to surface water, then the sale will trigger the requirement to replace or upgrade the system.

Buyers should satisfy themselves that any system is in good working order and does not cause pollution. There could be costs involved in engaging a surveyor to inspect the system and in ongoing maintenance inspections. There can be further costs if a septic tank needs to be upgraded or replaced or does not qualify for exemption under the EPEWR 2016.

It is important to identify the location of the system and, if the system is located on someone else’s property, to check that the appropriate rights and obligations are in place.

Offences and penalties

If a small sewage discharge is not meeting the general binding rules, then the Environment Agency will usually try to provide advice and guidance to help resolve the issue. If this is not successful, further enforcement action may be taken.

This article only applies to properties located in England, as different requirements apply to properties located in Wales. 

This article was first published on the Charles Russell Speechlys LLP website.