From 1 January 2012, it was intended that the Environmental Permitting (England and Wales) Regulations 2010 (“the Regulations”) would impose obligations on property occupiers whose properties require small sewage treatment plants to process waste. Gemma James, a Partner in the Property Department of Mundays LLP Solicitors, examines the effect on the occupation and sale of such properties.
The Regulations were introduced as part of the Environment Agency’s continuing drive to control and prevent pollution so as to protect the environment and public health. Many properties do not connect to the public sewer which means that their sewage has to be dealt with in another way such as by a septic tank or package sewage treatment plant. These typically treat sewage to an extent and then discharge to surface water (in the case of package sewage treatment plants) or to ground water (in the case of either package sewage treatment plants or septic tanks) although they will also need periodic emptying of the remaining sludge.
THE DUTY OF REGISTRATION
(a) What Must Be Registered
The Regulations aim to result in the Environment Agency (“EA”) having a complete Register of all small sewage treatment plants. There are three basic categories which will affect the Register:-
(i) Environmental Permits: if a septic tank or package sewage treatment plant is not “exempt” (as mentioned in (iii) below) then it will need an Environmental Permit from the EA. However, there is no need to apply to enter it on the Register because the EA will automatically note all those for which an Environmental Permit has been issued.
(ii) Consent to Discharge: these are specific consents to treated sewage discharges which were given out historically under the Water Resources Act 1991. Again, there is no need to apply to register if such a consent is in existence because the EA will already have placed its details on the Register;
(iii) Duty to register under the Regulations: if a septic tank or package sewage treatment plant falls within Part 3 of Schedule 3 to the Regulations, then it is exempt from requiring an Environmental Permit, but the Regulations will require the property occupier to ensure it is noted on the Register by completing the registration process online. This is a new requirement brought in by the Regulations and so affects all properties using septic tanks or package sewage treatment plants. In order to be exempt from requiring an Environmental Permit, a septic tank or package sewage treatment plant needs to discharge domestic waste only and:-
• If it discharges to ground water, then it must discharge 2m3 waste or less per day; or
• If it discharges to surface water (i.e. package sewage treatment plants rather than septic tanks) then it must discharge 5m3 of waste or less per day.
The EA estimates that 5m3 per day is roughly equivalent to 31 occupants in a property, whereas 2m3 equates to approximately 9 occupants. The term “domestic waste” largely covers all sewage and waste even from residential homes and restaurants. By contrast, examples of trade waste are chemical toilet waste, waste from commercial cooking for sale offsite (as with food production factories) and washing of clothes or linen received at commercial premises. Swimming pools, vets, schools and universities may be classed as trade depending on the nature and management of the discharge. In general, if there is any doubt whether waste will be classified as exempt, appropriate enquiries should be made of the EA.
In summary, any exempt form of discharge will only need registration, whereas all others will require Environmental Permits. Tanks or plants serving standard household properties will therefore generally only need registration, but it will not be possible to register discharges of ground water located within a Source Protection Zone 1 or within fifty metres from a well or borehole used to supply water regardless of the size of the tank or plant. Instead, these sites are environmentally sensitive and an Environmental Permit will have to be applied for.
(b) Who and How to Register
The duty to register the existence of a septic tank or package sewage treatment plant falls upon the occupier of the property served by it (even if it is located on neighbouring land) rather than on the landlord or registered proprietor of the property. The occupier can complete the registration process online by providing information as to its location and will also need to:-
• Confirm that it meets the criteria to be exempt from the need for an Environmental Permit; and
• Agree to comply with the requirements set out in the Regulations for the upkeep, maintenance and correct usage of the tank or plant.
The duty to register will pass on to occupiers of the property, but once registration has occurred, there is no need to repeat the process when new occupiers move in. If a septic tank or package sewage treatment plant serves several properties, it only has to be registered by the occupier of one of those properties, so the users may wish to co-ordinate registration in this respect. The EA has suggested that if it is located on the land of one of those occupiers, it would seem most appropriate for that person to apply to register. The EA issued a Guidance Document about the registration of small sewage effluent discharges in July 2011, but more up to date advice can be found on its website.
(c) When to Register
The Regulations cover England and Wales and when they were made, the deadline for compulsory registration was to be 31 December 2011. This meant it would be an offence to operate any septic tank or package sewage treatment plant that had not been registered (i.e. either by the occupier in the case of exempt tanks/plants or automatically by the EA in the case of those having an Environmental Permit or Consent to Discharge). However, in August 2011, it was announced that the registration requirement for England would be reviewed during 2012. This means that registration by 1 January 2012 is compulsory only in Wales at the moment, whilst it is currently just voluntary in England. Sections 36-44 of the Regulations provide that the EA can impose sanctions on occupiers for failure to comply with the Regulations.
Other Duties Under the Regulations
The Regulations impose strict duties on occupiers of properties which use septic tanks or package sewage treatment plants. These include complying with siting, design and maintenance requirements and emptying them at regular intervals. In addition, the discharge must only be of domestic waste and must not exceed the thresholds outlined above so that they remain exempt from the need for an Environmental Permit. Occupiers must keep records of maintenance, repair and de-sludging for at least five years after each such work has been carried out and only competent persons may carry out such work. A maintenance plan for the tank or plant must be in place.
Additional requirements apply for “new discharges” which is where the use of a particular point of discharge (even if the main system itself is old) was started on or after 6 April 2010. As well as the above duties, the occupier must also satisfy the Local Authority that connection to the public sewer is not possible and that it is not located within a sensitive site.
If a septic tank or treatment plant ceases to be used, the occupier will have to notify the EA so that it can be removed from the Register.
