General binding rules: GBR small sewage discharge to a surface water

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Paddock
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General binding rules: GBR small sewage discharge to a surface water

Post by Paddock » Fri Jan 04, 2019 9:45 am

https://www.gov.uk/guidance/general-bin ... face-water

I have recently become aware of this (Despite it coming out in 2015!) . There are effects from 1/1/2020. Less than a year away.

My issue is the dreaded septic tank... For historic reasons due to parceling up and splitting off land in the ex old farmyard complex that we have occupied since 2002, We have wound up with a neighbours Septic tank in the far end of our garden. We do not use it. A 'new' small sewage system was installed to serve the 4 redeveloped properties of the farmyard of which we are one.

We have had two neighbours in that time. The present one for about 13 years. Both have regularly emptied the tank. Nothing else has been done and no payments have been received by us. I assume their is some historic right to access and maintain
, even if just by recent activity. As is usual in these cases, we would rather it not be there, but we tolerate it as an obligation.

As we do not use the tank ourselves I only recently became aware of these GBR's. They say that all existing Septic tanks that do not discharge to a drainage field need, Either .. (A) A drainage field installed, (B) Upgraded to a sewage treatment plant, (C) Have a licence to say that its OK to carry on as is, (D) Be put out of use and the user go on main drainage or install a modern system somewhere else. If none of these happen , then it looks like ,we, as the landowner, would have an illegal discharge on our land and be subject to fines by the EA.

In this case (A) It does not have a drainage field and discharges to a pipe that goes in the direction of a wall 2m away on the other side of which is a road. So no way of installing a drainage field. (B) Upgrade as is... This would require new facilities which we would be reluctant to give permission to install. (C) The GBR says existing systems will only be licenced to operate as is, in 'Exceptional Circumstances'. (D) Our preferred option is that the neighbour now installs their own system.

So, my question to the wisdom of the forum is where do you think we stand? Does the neighbours right to access and maintain extend to a right to replace and add functionality? If not then we will have to tell the neighbour that the system will be decommissioned shortly after 1/1/19 to prevent us being liable to fines.

Thanks in anticipation ... Paddock

ukmicky
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by ukmicky » Fri Jan 04, 2019 11:01 pm

I read those new rules a few years back and I believe (could be wrong)as landowner you are not liable for it’s discharge . I believe onlythose who use it are liable should it fall foul of the law.

You actually have no legal right to stop them using it. You can’t condemn it,decommission it or decide by yourself they can no longer use it even if it’s discharge was to fall foul of the new regs. If your worried you will need to speak to either the EA or a court and get them to condemn it as your neighbours will have an easement right which you legally can’t interfere with. If you were to do so and you left their homes unliveable you could find yourself paying out a huge sum in damages if they take you to court.

You also don’t know if the EA will condem it as they can allow its use. If there was no way out for these properties and without it ,it would mean these houses could no longer function as homes the exceptional circumstances clause may very well kick in.

They also can upgrade it but can’t increase any burden on your property so in general can’t use any new areas of land that the old system is not using.

Also when they bring in new laws like this they normal have exemptions for very old existing installations etc so this septic may be exempt from the new regs.

Speak to the environment agency
Any information provided is not legal advice and you are advised to gain a professional opinion

Paddock
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by Paddock » Sat Jan 05, 2019 12:03 pm

Hi Ukmickey,

Thanks for that. I have received a reply from the EA. They say my interpretation is correct. There is no general exemption for old systems. People have had notice since 2015 to put it right by 2020. Or apply for a permit and have it granted in that time period.

They also say that even though I am not an operator, I am still liable for the discharge on my land along with the operator(s).

The system cannot be upgraded to a new sewerage treatment plant without adding extra bits. EG Electricity and new drainage pipework. The old system would need to removed to create space anyway for just a new tank. I think it would need to drain to a watercourse or a smallish (10m long) soakaway. There is no nearby watercourse and the soakaway would then be an extra installation requiring more land.

The way out is for the neighbour to install a one house system in their garden. I believe these systems are quite small. So, not sure the neighbour could argue that was not possible.

Anyway, I have emailed my solicitor who returns from Xmas holiday on Monday. Will see what he advises.

Have also noticed that companies who install small sewage systems have this on the front page of their websites. They obviously see a lot of potential business coming up! One suggested that over 70% of existing septic tank systems will not meet the new rules. There is also a rule about informing a buyer if you try and sell the house. So houses may become unsellable (or severely devalued) if they have not addressed the problem.

I will report back what the solicitor says.

ukmicky
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by ukmicky » Sun Jan 06, 2019 6:53 pm

The legislation only refers to an operator, someone who has control over the system .

As the servient owner of the land you have no control over the system as you are not an operator. You can’t be held liable for something you have no legal right to control.
Any information provided is not legal advice and you are advised to gain a professional opinion

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Re: General binding rules: GBR small sewage discharge to a surface water

Post by Roblewis » Sun Jan 06, 2019 8:20 pm

I find that the problem with environmental law is that much of it incorporates strict liabilities on landowners even if they are not the cause of the "pollution".

Paddock
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by Paddock » Sun Jan 06, 2019 9:44 pm

ukmicky wrote:
Sun Jan 06, 2019 6:53 pm
The legislation only refers to an operator, someone who has control over the system .

As the servient owner of the land you have no control over the system as you are not an operator. You can’t be held liable for something you have no legal right to control.
Well, The initial reply from the EA said this ....

In some instances the septic tank and discharge point is on a piece of land that doesn't belong to any of the properties which make the discharge. In these situations, the owners of the properties and the land owner of where the septic tank is located are all classed as operators and are jointly responsible for compliance with the regulations. We would expect the owners of the properties and the land owner to decide who takes responsibility for complying with the GBRs or apply for a permit as appropriate.

I see a year of S h 1 t coming up!

Paddock

ukmicky
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by ukmicky » Sun Jan 06, 2019 11:35 pm

What a crap response that was and the actual legislation where they've got it from is drafted just as bad as it leaves it open to interpretation as to who is responsible .
http://www.legislation.gov.uk/uksi/2014 ... on/10/made
3) For the purposes of this paragraph, an operator is a person who has control over the operation of the sewage treatment plant by reason of—

(a)being an owner of the land on which the sewage treatment plant is situated or being used; or

(b)having entered into a written agreement with the owner of the land on which the sewage treatment plant is situated or being used to be responsible for the maintenance of the sewage treatment plant.”.


The above legislation dosent tell you who an operator of a septic tank is ,it only tells you who it could be . As legally it cant be left open to interpretation as to who is responsible the government in order to help clarify exactly what the above wording in the legislation means published the
http://www.legislation.gov.uk/uksi/2014 ... 852_en.pdf

Explanatory memorandum to the Environmental permitting (AMENDMENT) (ENGLAND) Regulation 2014


It says

2.8
These Regulations clarify the responsibility of an “operator” for an exempt facility activity, and no longer refer to “occupiers”.

An “operator”is a person who has control over the operation of the septic tank or sewage treatment plant.

An “operator” may be an owner of the system, someone who uses it even though the system itself or part of it may be located on neighbouring land or another person e.g. a tenant or leaseholder who agrees to be responsible for the operation and maintenance of the system, through a written agreement with the owner of the land or part of the land. Any written agreement should explain what maintenance means in practice for the facility.
The first line ending in a full stop is the important part and its says'' An “operator” is a person who has control over the operation of the septic tank or sewage treatment plant''.


You have no control over the operation of the septic tank and therefore cant be an operator.


What I would do now .


I would Inform the E.A it is on my land by the way of an easement right and as its an easement right I legally have no control over its use and legally under the law cant interfere with its operation , so would like them to either contact those who do control its operation (supply details) or condemn it so those who do control its operation are prevented legally from using it unless they take all necessary actions required to comply with the law.

They will probably however get back to you with a standard response like you had previously, so speak to your solicitor
Any information provided is not legal advice and you are advised to gain a professional opinion

Paddock
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by Paddock » Mon Jan 07, 2019 4:55 pm

Thanks again UKmickey,

Will bear all that in mind going forward.

Also, by some continued research , I think I have found a case with some interesting parallels.

in 2006, Tenants in a block of flats had a easement/right of way across an area in order to reach their litter bins. The local council fire people came along and for some particular reason ordered the Landlord to build a wall across this way for fire safety reasons. This went to court and an old law judgement of 1878 was called in that said ...

The principle to be applied was set out by Fry J in Yarmouth Corporation v Simmonds [1878] 10 Ch D 518 where he said:
"when the legislature clearly and distinctly authorise[s] the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone, because the thing cannot be done without abrogating the right".


In this case they found that the tenants rights were not permanently waived as things might change in the remaining 72 year period of the lease that would allow the wall to be removed. However, they did rule that no action could be taken against the landlord as he was obeying a statutory order. The wording was ..

However, in carrying out the works the landlord was acting in compliance with the statute so that no actionable wrong was committed by him that rendered him liable for breach of covenant under the lease. Parker LJ at para 92: "[In the absence of] any finding of negligence (and no such allegation is made), the fact that in erecting the wall [the landlord] was discharging a statutory obligation is a complete defence to any claim in nuisance..".


So, in my case, I need the EA to serve an Enforcement notice saying the discharge is illegal and I must stop the discharge. I stop the discharge by taking the system out of use and I am protected from damages by this precedent...?

Hopefully, it will all be resolved sensibly before we get anywhere near this, but is a sort of backstop.

http://www.propertylawuk.net/easementsextinguish.html

Collaborate
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by Collaborate » Tue Jan 08, 2019 9:21 am

that looks like an entirely sensible analysis of the situation. Is that what your lawyers said?

Paddock
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by Paddock » Wed Jan 09, 2019 10:47 am

No reply from the solicitor yet Collaborate. Probably still sleeping off all the port and mince pies.

In the interim I have found out a few more things.

(1) Another property is also on the tank. Owned by a property company and occupied by a life tenant.
(2) Another property in the village upgraded their system in 2016 when it changed hands
(3) Another property in the village, owned by a different property company than the one that uses mine, is in the process of upgrading their system to meet the 2020 deadline.
(4) One house systems are relatively inexpensive. There was a link someone posted in another thread. About £2k for a starter system. Plus installation of course.

So I think my strategy will now be to write to both neighbours at the same time. Along the lines of 'were all in it together' . 'others are taking it seriously' , 'its not that expensive to sort out' , 'so lets get on with it'.

See how that goes down.

Paddock
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by Paddock » Fri Jan 11, 2019 5:14 pm

Update is I did the above.

The property company has replied agreeing with it all and getting on with it immediately!

Not heard from the private neighbour yet but as the property company agrees I expect they will accept it as well.

Paddock
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by Paddock » Thu Feb 28, 2019 10:08 am

After nearly two months of silence the private neighbour has responded. They say they have talked to some people who they identified as 'engineers from the tank maintenance company' and 'An EA advisor'. These people say the tank is OK! No names or corroborating evidence was given.

My response was that the New GBR's clearly say the tank is not OK and I have confirmation of this from a named source at the EA. I wont rely on anonymous , fake news, denials as a legal defence! The only thing that would change my mind is if I get something in writing from the EA saying their rules dont actually mean what they say and it is OK! Effectively, the neighbour needs to apply for an exemption permit from the EA , obtain it, let me see it, I will take a copy. Provided any conditions or timescales in the permit are complied with then I will accept the tank is legal and do nothing. This needs to happen before 31/12/19.

I see it as the users responsibility to prove to me that the tank is being maintained to a safe and legal standard.

Will see what happens next!

Paddock.

Paddock
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by Paddock » Mon Apr 15, 2019 9:29 pm

What happend next ... after nearly two more months...

The commercial neighbour sent an Architect in. I thought to look at installing new systems for the users. The Architect thought he was inspecting the old tank. He submitted a one page report describing the old tank, saying it was working fine and didn't think anything needed doing. He didn't seem to know anything about the GDPR and the new rules.

I have emailed both the users and the architect explaining the situation again but more succinctly.

I basically said the EA have told us that the Septic tank on our land will be illegal at the end of the year. Therefore, we will be decommissioning the tank at the end of the year to stay compliant with the new legislation. Its up to them what they do, but I suggest they get on with it.

Paddock.

ukmicky
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by ukmicky » Tue Apr 16, 2019 12:23 am

Therefore, we will be decommissioning the tank at the end of the year to stay compliant with the new legislation.

Without a court order ,the easement is what is important here .

You cant decommission it because to do so would cause a substantial interference with their easement right. You do not have the legal right to interfere with their easement. Only a court can grant you that right.

You could end up in a lot of trouble and with a lot less money in your bank account ,when they sue you for substantial interference and costs which include hotel fees as you've made their homes uninhabitable.

You also could be charged in theory with criminal damage


You need a court order first.
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Paddock
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Re: General binding rules: GBR small sewage discharge to a surface water

Post by Paddock » Tue Apr 16, 2019 8:49 am

Thanks for that Ukmickey,

So you don't think the link I posted earlier would be legally sufficient?

It basically says that the thing becoming illegal is sufficient to justify ending the easement to it, if it is done for the reason of compliance by the owner of the thing with a new law ?

http://www.propertylawuk.net/easementsextinguish.html

To obtain a court order I assume I would need to go to court, demonstrate the law, then say 'look, the users have done nothing about this despite me giving them a years notice and the EA giving all of us 5 years notice' ?


Paddock

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