Advice for the unwary dealing with septic tanks in conveyancing transactions

This is not intended to be a homily on the law of servitudes (no one would expect that from this writer), but rather some practical advice for the unwary.

Location location location

Most clients will know whether or not their house is on mains drainage.  The most obvious point then is where is the tank?  Too obvious, you might think, but I have heard of a situation where the sellers tried in vain to locate the tank throughout the course of the conveyancing, eventually conceding defeat when it transpired that there was no tank and the house was draining into a field ditch some distance away.

The Titles should give some clues but beware of relying on the accuracy of  plans.  A learned member of our committee copied a plan to his client, which showed a dotted line terminating in a cross.  This later turned out to be not the septic tank but the grave of a previous owner’s family pet. When it comes to details about the septic tank, the water authorities hold information which may assist with locating it, or provide details of when it was last serviced etc.

Servitudes are obviously required where the tank, pipe work, soakaway, etc. are outwith the boundaries of the property. Bear in mind that the local water authority may need access to empty the tank on occasions and they find it troublesome, to say the least, when the householder does not know where the tank is and/or does not have necessary rights of access.  Even if the access etc is satisfactory, it is a good idea if the seller has an arrangement for looking after the septic tank, for that to be at least suspended at the date of entry. The water authorities find it very annoying to have their invoices returned because a householder has moved out and failed to advise either them or the new owner about the arrangements for looking after the tank. The cost has to be passed on as increased charges to those householders who play by the book.

All tanked up and nowhere to go

Of course there are regulations governing private drainage systems and the Scottish Environment Protection Agency “SEPA” is the supervising body which enforces these.  The Regulations are fairly complex and were amended in 1996 by the Environment Act 1985 which came into force on 1st April 1996. The date of installation of the system is no longer relevant in determining whether or not a discharge consent is required.

In my experience members of the public are not aware of these Regulations.  Here is a summary of the main points which you and your client should be aware of:

  • Any private drainage system which discharges to “controlled waters”, for example, the sea and inland water courses such as burns or ditches, requires a discharge consent from SEPA. At present this consent can cost up to £552.
  • It is an offence under Section 30F of the Control of Pollution Act 1974 to cause or knowingly permit sewage effluent to be discharged into controlled waters, whether or not such discharge is causing any pollution.
  • SEPA can serve two types of prohibition notice to control such discharges, which have no consent, or if there is risk of pollution.
  • It is also an offence to discharge to controlled waters in breach of such prohibition notices.
  • If the drainage system discharges only to land, perhaps via a soakaway, then you do not require to apply to SEPA for a discharge consent unless SEPA serves a prohibition notice upon you prohibiting you from making a discharge without a consent.
  • SEPA recommends that any septic tank and soakaway area should be sited not less than 10 metres from any ditch, drain or water course and preferably not closer than 15 metres to any dwelling.  There requires to be vehicular access to allow the tank to be emptied. Septic tanks require regular emptying to operate effectively.
  • If the system is shared the septic tank requires to be of sufficient capacity to cope with this.  SEPA may require a discharge consent to be obtained where the system serves a population equivalent exceeding fifteen persons and this population equivalent is calculated by SEPA according to the number of properties and bedrooms.  

Missives for purchase of a house with a private drainage system should take account of these points. The legislation may change again and to ensure that you have up to date information you should contact your local SEPA office. Certain private drainage systems may be eligible for adoption by your local water authority. Guidance can be obtained directly from them. The information in their leaflets etc has been prepared in conjunction with SEPA. They can also provide advice for those new to septic tanks on how best to look after them either by calling or accessing their websites.

Mary Macrae (Council member and member of the Society’s Conveyancing Committee)
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