Septic tanks, on the face of it, never create much excitement (unless you’re a lawyer) and are rarely a topic of dinner table conversation unless, of course, you happen to own or operate one. And if you do, you need to know that there has been another change to the regulatory regime for these sewage discharge systems in England and Wales*.

A potted history

In 2015, the regulatory regime governing the control of small sewage discharges (SSDs) was simplified by the General Binding Rules (“GBR”).  The GBR were brought in to allow most households and small businesses to continue using septic tanks and sewage treatment plants without the need to obtain an Environment Agency permit (unless based in an environmentally sensitive area), providing that a variety of conditions are met. These conditions include the amount of discharge permitted per day, the specification and standards of the SSD, how the discharge is treated, and maintenance and decommission requirements. The conditions also vary depending on when the septic tank or sewage treatment plant was installed and where the SSD is discharged into.

The government took the view that most septic tanks and sewage treatment plants, providing they had been properly installed, properly maintained, and regularly emptied, were rarely a pollution risk.

What's changing?

There has now been a further update to the GBR and from 1 January 2020 you will no longer be able to discharge effluent (the partially cleaned water from the septic tank) into surface water*. Any septic tank that does discharge directly into surface water needs to be replaced or upgraded by that date. Surface water in this instance includes watercourses such as rivers, streams, ditches as well as ponds and other standing water.

Who will the change affect?

Owners and Operators

With less than 6 months left of 2019, if you own, operate, or are responsible for, a septic tank that discharges into surface water you must review your current system and consider the best way to upgrade or replace it as necessary. There are several options:  

  • connect to a mains sewer, where available;
  • install a drainage field (or infiltration system) so the septic tank can discharge to the ground instead; or
  • replace the septic tank with a small sewage treatment plant.

The Environment Agency has suggested discussing the available options, and their suitability, with them, not least as it remains the EA’s responsibility to investigate and prosecute any pollution incidents and regulatory breaches.

Property Transactions

Purchasers: if you are considering purchasing a property, find out if the property is serviced or affected by a septic tank.

Sellers: if you are selling a property, you should be prepared for an astute potential purchaser to ask about the septic tank and the discharge regime. You should, in any event, inform the purchaser in writing that they will be responsible for a septic tank.

The government is recommending that if a property is sold before 1 January 2020 the responsibility for either upgrading or replacing the system is addressed by the purchaser / seller as a condition of the sale.

Permits

It is noted within the guidance that you can still apply for a permit from the Environment Agency to discharge into surface water but only in “exceptional circumstances”. We would advise consulting the EA on the likelihood of a permit being granted before applying.

There are permits available for septic tank conversion units which can be used to upgrade an existing septic tank that discharges into surface water. The permit will need to be accompanied by evidence to show that such an upgrade will treat the effluent to the equivalent standard as a sewage treatment plant. If you consider that a permit may be required for your septic tank, you should speak to the Environment Agency well in advance of 1 January 2020.

Permits will still be needed if you are responsible for a SSD within a defined area from which drinking water is abstracted (groundwater source protection zone 1s SPZ1) and/or a ‘designated sensitive area’ which includes some obvious contenders such as SSSIs, shellfish protected waters, and nature and wildlife reserves which are largely aquatic in nature. The list has been reduced in length (for instance scheduled monuments have been removed) and can be found on www.gov.uk.  Away from designated sensitive areas, the EA does have authority to require permits if there is concern about potential pollution caused by the cumulative effects of SSDs on a local river or habitat.

All systems, whether replaced or upgraded, must be in good working order, meet the relevant British Standard in force at the time of installation, have sufficient tank capacity to cope with the maximum sewage requirement for your property, and dispose of sludge safely. We would also recommend keeping a maintenance record for your system.

In short

The guidance change means that anyone who has a system that discharges into surface water must consider - and promptly – whether an upgrade or a replacement is required, in order to comply with the change by 1 January 2020. The onus remains on operators to ensure that all systems are in good working order and are not polluting. The EA has said that it will only use enforcement powers as a last resort and would prefer ‘to provide advice and guidance’ to those struggling to comply. As ever, if you have any concerns about permits, compliance, or buying or selling a property with a septic tank, please contact a member of the property team.

*Please note that these regulations only apply in England and Wales. Scotland and Northern Ireland have separate regimes 

About the author

Keri Harwood Solicitor

Keri is a Solicitor in Wright Hassall's Agricultural Sector. Having converted to law, after first completing a Masters in Environmental Sciences she has a particular interest in specialising in Agricultural and Environmental Disputes.