When you are purchasing a residential property that has a septic tank the conveyancer/solicitor acting for you needs to raise sufficient enquires of the seller.

A septic tank is a key component of a septic system, a small-scale sewage treatment system common in areas that lack connection to main public sewers. After the sewage enters the septic tank, the wastewater passes through an infiltration system or soakaway and into the ground, or into surface water. This is known as small sewage discharge.

When you are purchasing a residential property that has a septic tank the conveyancer/solicitor acting for you needs to raise sufficient enquires of the seller. In England and Wales it may be that the owner of the property may require an environmental permit to make a discharge to the groundwater or to surface waters. An environmental permit contains detailed rules and conditions strictly regulating a discharge.

Most small sewage discharges from residential properties do not cause environmental issues provided that the tank is well maintained and does not discharge near a sensitive area for protection of the environment or a groundwater source. Discharges to groundwater and surface waters (such as rivers) are regulated under the Environmental Permitting (England and Wales) Regulations 2016 and came into force on 1st January 2017 which means that most discharges to groundwater or to surface waters require an environmental permit.

So how do you know if the system is exempt from requiring a permit? The following criteria needs to be met which are set out in the General binding rules. In summary:

  1. General condition that it does not cause pollution of groundwater or surface water.
  2. Volume threshold conditions- to groundwater maximum of 2 cubic metres per day and to surface water a maximum of 5 cubic metres per day.
  3. Location conditions in relation to sensitive and protected sites and groundwater aquifers.
  4. The sewage must only be domestic.
  5. The discharge must not be within 50 metres from any well, spring or borehole that is used to supply water for domestic or food production purposes.
  6. All works and equipment must be maintained in accordance with the manufacturer’s specification.
  7. The system must be installed and operated in accordance with the manufacturer’s specification.
  8. Maintenance must be undertaken by someone who is competent.
  9. Waste sludge must be disposed by an authorised person.
  10. If the property is sold, the operator must give the new operator a written notice stating that a small sewage discharge is being carried out, and giving a description of the waste water system and its maintenance requirements.

For a new discharge which is one which started on or after the 1st January 2015 the following additional rules apply:

  1. New discharges must not be within 30 metres of a public foul sewer.
  2. For new discharges, the operator must ensure necessary planning and building consents for the treatment system is in place.
  3. New discharges to surface water must not be within 500 metres (to groundwater 50 metres) of a special area of conservation, Ramsar site, biological site of Special Scientific Interest, freshwater pearl mussel population, designated bathing water or protected shellfish water, 200 metres of an aquatic local nature reserve; 50 metres of a chalk river or aquatic local wildlife site.
  4.  Discharges to surface water must not be made to an enclosed lake or pond.

Considerations when buying or selling a residential property in England and Wales

If you are buying or selling a property in England and Wales should consider whether the small sewage discharge qualifies for an exemption under the EP regime.

Registration for an exempt small sewage discharge is no longer required in England and regulatory burdens have been reduced. Effectively, the exemption registration scheme has been replaced by the two sets of general binding rules as mentioned above. (Registration is still required for an exempt small sewage discharge in Wales.)

The Law Society Property Information Form (third edition) contains queries in relation to septic tanks and the seller will need to disclose and provide written information stating that a small domestic sewage discharge is being carried out on the land and setting out its maintenance requirements.

You should also satisfy yourself that the septic tank:

  • Is in good working order.
  • Has sufficient capacity to serve the number of intended occupants of the property.
  • Does not cause pollution
  • Complies with any relevant planning or building regulations.
  • Has an easement where the soakaway is on adjoining land.
  • Has a written maintenance agreement where the sewage package plant is on adjoining land and managed jointly with another landowner or by a third party.

A prudent buyer/seller should also take into account any costs for replacing a tank that does not meet the standards under the EP regulations 2016.

You should also think about instructing a surveyor to inspect the tank to confirm it meets the requirement and satisfies the criteria for the exemption.

You should also identify the location of the septic tank. This is particularly important where the tank is located on someone elses’s property. The conveyancer/solicitor can investigate whether there are appropriate rights and obligations in place.

The importance of these enquires should not be forgotten.  If the septic tank is defective it could cause contamination problems at the property. You could also find yourself being on the other end of a bill from a neighbouring property for contaminating their land.

If this happens you may liable to carry out remediation under the contaminated land regime under Part 2A of the Environmental Protection Act 1990, Water Resources Act 1991 or the Environmental Liability Directive 2004.

Further reading

Property Conveyancing
Commercial Property and Conveyancing
Brexit and the property market – is Gazundering back?
The Reynolds Report – The Race to the Bottom (And why you should avoid it)
Old Restrictive Covenants Over Land – Do You Need To Be Bothered?

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