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Rebecca Stanton, Solicitor Planning and Environment Team at Thrings, advises on septic tank legislation.
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Q: We are selling our farm and are concerned that our old septic tank may cause a delay or even deter a buyer as we know there have been some recent changes in regulations and requirements.
How can we verify compliance? If not, what are our options and what will they cost?
A: An important piece of legislation to note here is that owners of properties with septic tanks that flow into watercourses must have plans to undertake modernization work within a reasonable time (typically 12 months) from January 1st, 2020.
This is the result of the then published Environmental Protection Agency (EA) guidance and the Environmental Permitting Regulations 2016, which came into effect on January 1, 2017, and regulate discharges to groundwater and surface water.
The EA no longer considers septic tank wastewater to be clean enough to flow directly into watercourses without causing pollution.
Septic tanks that discharge directly into surface water can therefore now be illegal, and in the event of contamination of the soil, the EA can fine the user, require a mandatory upgrade of the system, or require a replacement tank.
Owners of such tanks discharging into surface water can apply for an EA permit instead, but this is only granted in exceptional cases.
The EA also published so-called general binding rules, which set out conditions that must be met in order to be exempted from the permit requirement.
However, the requirements are extensive and do not apply to domestic septic tanks or small domestic wastewater treatment plants that discharge into groundwater.
Because of these changing regulations, when you sell your property it is inevitable that the buyer’s carriers will ask questions about the regulatory position of the tanks during their due diligence.
Fortunately, the property information form that you should fill out as part of the sales process should allow you to provide details of an off-grid waste system, the date it was installed and the last time it was serviced.
Delays can be avoided by clarifying these matters with your carrier early to give the buyer peace of mind.
It is important to provide the buyer with written information stating if you have a small domestic sewer discharge onto the property, describing the septic tank, and establishing maintenance requirements.
If your septic tank empties directly into a watercourse or otherwise violates applicable regulations, the seller may ask for a discount to reflect the cost of installing a system itself.
Responsibility for any necessary replacement or upgrade should be discussed between the buyer and seller as terms of sale, and these negotiations may cause delays in transfer progress.
It’s worth speaking to your solicitor to get a referral to a specialist engineer or environmental consultant to work out your options and the best way forward in terms of cost implications.
Also expect questions about whether the tank is compliant with building codes and building regulations, whether it is defective and whether there are appropriate access rights if it is not on your property.
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