Septic tanks: new general binding rules

The new rules on septic tanks have been little publicised, but could impact on the sale price of rural property, suggests Alice Jenkins.

Rural homeowners face potentially expensive obligations to make their septic tank compliant with the new general binding rules. These rules prevent the discharge from septic tanks in watercourses or drainage ditches, with a requirement to replace any non compliant tanks by January 2020 or on the sale of the property.

The role of the septic tank

A septic tank is a chamber used to deal with domestic sewage from rural properties which cannot connect to mains sewage. They are heavily regulated to avoid contamination to watercourses and other environmental issues.

Many domestic septic tanks drain into watercourses or drainage ditches, as opposed to draining into the ground. Under the new rules, all septic tanks will require an environmental permit. However, the Environment Agency will not issue permits to owners of domestic septic tanks which drain to watercourses or drainage ditches.

Therefore, if a domestic septic tank drains to a watercourse or drainage ditch, it will need to be replaced or upgraded to comply with the new general binding rules. Options to make the drainage system compliant are:

• installing a drainage field (also known as an infiltration system) so the septic tank can discharge to the ground instead;
• replacing the septic tank with a small sewage treatment plant (which may be exempt from the new regulations);
• connecting the property to the mains sewage system; or
• upgrading an existing septic tank which discharges to surface water by installing a septic tank conversion unit (although the owner will need to obtain a permit and provide evidence the tank will treat sewage to a standard equivalent to a sewage treatment plant).

Only in exceptional circumstances can an owner apply for a permit for the septic tank to discharge to surface water.

Effect of the new rules

All of the above options could result in major works needing planning permission and building regulations approval and it is very likely at least one will not be an option at the property. Property owners will need to commission a professional report advising how to make the drainage system compliant with new regulations. Any works may well be costly (potentially running into the tens of thousands of pounds) and if the works weren’t carried out by January 2020, it will be an issue on the sale and purchase of the property. The buyer and seller need to agree before contracts are exchanged who will be responsible for the works, which must be carried out within a reasonable timeframe of the sale, usually within 12 months.

We are finding that most septic tanks were not upgraded or replaced before the January 2020 deadline and the extent of the works needed is only being picked up during the sale and purchase process. This often becomes a point for negotiation on the sale and purchase price.

Even if there is no imminent sale, it can be an issue for rural homeowners. as the Environment Agency can demand a septic tank is upgraded or replaced if it discovers evidence of pollution to the watercourse caused by the discharge.

Some drainage systems are eligible for an exemption from the requirement for an environmental permit. These do not apply to septic tanks, but may apply to small domestic sewage discharges in or near designated sensitive areas, provided volume threshold conditions are not exceeded. There are a number of requirements to qualify for an exemption but it is clear from the general binding rules that they will not apply to septic tanks.

If the septic tank does not comply with new regulations, it could contaminate neighbouring land and the operator of the system will be liable to remediate any damage caused and/or face a hefty fine from the Environment Agency.

Points to keep in mind

It is important to be aware that the term “operator” is wider than just the owner of the land. It can be either the owner of the land on which the septic tank is situated, the user (even if the septic tank is on neighbouring land) or the tenant if their tenancy agreement includes obligations on them to maintain the septic tank. Any of these operators could be held liable by the Environment Agency to remediate any damage caused, at their own cost.

The new general binding rules only affect properties in England. Septic tanks in Wales can continue to drain into watercourses, at least for the time being. However, all Welsh septic tanks need to be registered with Natural Resources Wales and a certificate of registration should be provided to the buyer during any conveyancing process.

More generally, we recommend that all tanks and treatment systems, whether in England or Wales, should be checked to ensure they have sufficient capacity, are maintained at least once a year and are repaired if not in good working order. In addition, any septic tanks in a tidal area need to release below the “mean low water spring mark”.

If you are looking to buy a property served by a septic tank, you need to be aware of the location of the septic tank. They are often situated on neighbouring land and may be shared with other properties. If so, buyers and their conveyancers need to be sure that there are adequate access rights and maintenance obligations to ensure issues do not arise.

The new regulations affecting septic tanks have been little publicised and we are seeing that most septic tank operators are not aware of them. If no works have been done to replace or upgrade a septic tank discharging to a watercourse or drainage ditch, it is very likely they will not be compliant with the new rules. To avoid delays and a possible price chip on the sale of the property, it is strongly recommended that owners seek professional advice on making their septic tank compliant.

This article was first published in Estates Gazette in August 2020.