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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10919
Experience:  30 years as a practising solicitor.
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I have been asked to co-operate with Scottish Water new

Resolved Question:

I have been asked to co-operate with Scottish Water for a new combined sewerage outfall pipe through my land. I need to understand my rights in terms of compensation (easement payment). I am due to be served with Section 3 notice very soon. Can you help please?
Submitted: 1 year ago.
Category: Scots Law
Expert:  JGM replied 1 year ago.
Section 3 allows Scottish Water to serve a notice of a proposed construction on your land and seeks your consent. If you don't give consent they can apply to the sheriff. Here is the relevant parts of the section: "3. Construction etc. of public sewers and public sewage treatment works.(1) Subject to the provisions of this Act, [ Scottish Water ] 1 may, [&]2 (a) construct a public sewer [ or SUD system ] 3 (i) in, under or over any [ road ] 4 , or under any cellar or vault below any [ road ] 4 ;(ii) in, on or over any land not forming part of a [ road ] 4 ;(b) construct public sewage treatment works in or on any land held by [ it ] 5 or appropriatedfor the purpose.(2) Before commencing construction of a sewer [ or SUD system ] 6 in, on or over any land notforming part of a [ road ] 4 , [ Scottish Water ] 1 shall serve notice of [ its ] 7 intention on the ownerand the occupier of land concerned together with a description of the proposed works and of theright to object thereto, and if within 2 months after the service of the notice the owner or the occupierobjects to the proposed works, and that objection is not withdrawn, [ Scottish Water ] 8 shall notproceed to execute the works without consent aftermentioned but may refer the matter by summaryapplication to the sheriff who may grant consent to the proposed works either unconditionally orsubject to such terms and conditions as he thinks just, or who may withhold his consent, and thedecision of the sheriff on the matter shall be final." Can you tell me what prior correspondence you have had or any discussions and what has been said to you about compensation, if anything, so far. I'll pick this up later tonight.
Customer: replied 1 year ago.
The pipe is 900mm diameter and serves a large part of the surrounding area. The centre of the pipe will be approximately 5m from the front of my house and will be cored 7m below ground.
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  JGM replied 1 year ago.
Section 3 notice gives intimation of the intention to construct sewer over private land and seeks consent. If you don't give consent they can apply to the sheriff for an order. What have they said to you so far about the proposal and specifically about compensation? I'll pick this up later tonight.
Expert:  JGM replied 1 year ago.
3. Construction etc. of public sewers and public sewage treatment works.(1) Subject to the provisions of this Act, [ Scottish Water ] 1 may, [&]2 (a) construct a public sewer [ or SUD system ] 3 (i) in, under or over any [ road ] 4 , or under any cellar or vault below any [ road ] 4 ;(ii) in, on or over any land not forming part of a [ road ] 4 ;(b) construct public sewage treatment works in or on any land held by [ it ] 5 or appropriatedfor the purpose.(2) Before commencing construction of a sewer [ or SUD system ] 6 in, on or over any land notforming part of a [ road ] 4 , [ Scottish Water ] 1 shall serve notice of [ its ] 7 intention on the ownerand the occupier of land concerned together with a description of the proposed works and of theright to object thereto, and if within 2 months after the service of the notice the owner or the occupierobjects to the proposed works, and that objection is not withdrawn, [ Scottish Water ] 8 shall notproceed to execute the works without consent aftermentioned but may refer the matter by summaryapplication to the sheriff who may grant consent to the proposed works either unconditionally orsubject to such terms and conditions as he thinks just, or who may withhold his consent, and thedecision of the sheriff on the matter shall be final.
Customer: replied 1 year ago.
They have said they can either;a) serve the notice and I have two months to approve / appealb) they offer me some easement / compensation should I appeal, or if they think I will appealc) it goes to court and I may get nothing but this would delay the project for some timeThe project is for flood prevention in the area and is of huge priority to the government / Scottish Water. They are under pressure to start the project in May but they require approval to cross underneath my front garden / driveway and also my neighbours. Having outlined my concerns on the phone last night they may offer me something, or they may go to the assessor to establish what easement payment applies here (I think there are tables / guidelines they work to). Not looking to use this as an opportunity but do feel we should get something fairly substantial as they have no way of guaranteeing the pipe will not fail in the future. They have not done any borehole investigation within my property therefore they are making assumptions on the sub-strata below ground. Should the pipe move and need repaired in the future then sheet piling would be required to allow access. Would this affect the structural integrity of my house? What if my circumstances change between now and the end of the project? Selling my house during the project would be difficult and costly as the project would cause so much uncertainty to potential buyers. Even when the project is complete how would my house value be affected? Some buyers may be put off by the new burden placed on the property. I've attached a plan which let's you see what's being proposed. The whole project will take almost one year to complete and the pipe in question only affects nos. 3 & 4. my phone number is ***** - 362 158. I could do with a chat tonight if possible. The whole thing is becoming fairly stressful. My address is 4 Newford Grove, Clarkston G76 8QZ. Many thanks for your help. Graeme Oswald
Customer: replied 1 year ago.
I also need to know what change there will be to my legal title. Hopefully you can advise on this too. Thanks
Expert:  JGM replied 1 year ago.
I don't think this would affect the value of your house. Many houses have pipes and cables running underneath with rights in favour of the utilities. It would be of concern of the pipe was to go under the actual house but that doesn't seem to be the case. You should consider tactics. You should present an air of cooperation with Scottish Water given that flood prevention overall could help you in the future in the event that you want to sell your house. You should say that you want to be represented by a surveyor to negotiate compensation with the local assessor. You want to have his fees covered by Scottish Water. You want the surveyor to be able to instruct a structural engineer to report on the proposed scheme so as to give you comfort that this won't affect your house. As regards ***** ***** title they may ask for a servitude right to carry out maintenance repair and renewal and you would want them to liaise with your solicitor, again at their cost. The norm is that you would retain ownership but they would get a servitude right for maintenance etc: the English law term is easement. Happy to discuss further.
Customer: replied 1 year ago.
Thanks for this excellent advice. I've had further discussions with the Project Manager today and he will be visiting us middle of next week to discuss further. He is fully aware of our concerns and I have said we can hopefully work towards an outcome which is suitable to all parties and that we fully understand the importance of the project. SW would like to come into our property to do a borehole test to look at ground conditions in our property where the pipe is going. I've said we should take one step at a time and that the result of the assessors initial investigation on the effect on the property value should be confirmed first of all before we proceed much further. The PM has asked me not to appoint any consultants yet until we have our meeting. does this sound positive? Out of interest, would you happen to know the estimated costs involved should Scottish Water need to take this to court if we appeal to the Section 3 notice? The notice has been served today and we have two months to respond, however they want to start early May! How long would it take to go to court and for a decision to be made? Thanks again for your help.
Expert:  JGM replied 1 year ago.
The costs of going to court would be several thousand pounds. Say, £6000, on each side if it went to a hearing. The case would take six months to a year, typically. It is positive that they are going to meet with you but ensure you force the point that you have your own team of advisers as I suggested above.
Customer: replied 1 year ago.
Ok thanks again. ***** also need to pay our legal costs to take it through the courts? In other words it could take £12-15k to cover costs of the full process, not to mention the costs of potentially paying my own consultancy fees + the delay to the project. Again not trying to maximise but need to understand all eventualities to help with my negotiation. I currently feel they are trying to bulldoze their way through the process and get away with giving us absolutely nothing. Thank you again.
Expert:  JGM replied 1 year ago.
No, you would have to pay your own legal costs of which you could claim a portion back if you were successful in court. I don't think they should object to you having your own representation and advice and paying for that so as to satisfy yourself as to the safety of your property and a suitable amount of compensation and those are the things you should be seeking at the meeting.
Customer: replied 1 year ago.
Hi again,Further to the meeting I had with Scottish Water's consultants, on Wednesday 9 March 2016, please see text below from Scottish Waters Land and Estates Team on the issue of Deeds of Servitudes.This relates to a new 1m diameter pipe which is being proposed within my front garden.“In Scotland there is no requirement for formal Deeds of Servitudes for new sewers. The process is that Scottish Water serves a Section 3 Notice in terms of the Sewerage (Scotland) Act 1968 on the landowner for a proposed new sewer. Once this Notice has been accepted this Notice is the formal document that records Scottish Water’s right to install and retain the sewer in the subject land, including right to take access to the sewer for maintenance. The Notice brings in the terms in the Sewerage (Scotland) Act 1968 which protect the interests of the landowner in relation to the sewer including Scottish Water’s duty to maintain and repair the sewer, the landowner’s rights to claim compensation when the sewer is installed or when access is taken for maintenance in the future. There is no requirement to register Section 3 Notices on the Land Register, Section 3 Notices and any related correspondence should however be retained by the landowner for future reference, ideally stored with the landowner’s title deed records, the Notice should be passed on to any new owner if a property is sold on. Scottish Water retains copies of all Notices in a central register maintained by its Land and Estates Section.”Can you please confirm if this is your understanding of the legislation? Basically I need to be sure that what I'm being told is correct before I respond further. I have also flagged up a discrepancy between their project plan and the plan issued with the section notice. I have said they should be notifying both neighbours across the shared courtyard due to the fact that any future maintenance work on the pipe would affect the whole shared area.If you could please let me know if what is being quoted is correct.Many thanksGraeme
Expert:  JGM replied 1 year ago.
Yes, it tends to be done that way although I have never taken the view that is a particularly good way to proceed from the point of view of Scottish Water given that what they have written to you is not at all reflects on the wording of section 3 of the Statute, which can see online. I have also seen Deeds of Servitude which are registered in the Land Register. In some ways it can be better that there is no registered burden on the land but you can imagine the future difficulty where section 3 paperwork goes missing or is not passed on, particularly given that the Land Register since December 2015 is all electronic and paper title deeds are no longer issued. However, if that's how they prefer to do it, I don't have any great problem with it from your point of view and that is what is important to me. Your priority is to ensure that you see precisely what is envisaged and what compensation is going to be paid to you. If they haven't done their plans or intimations correctly, you are right to point this out to them.
Customer: replied 1 year ago.
Hi, thanks for your latest reply, and apologies for the delay in coming back to you. I sent a lengthy email to Scottish Water outlining the technical queries I had and my enquiry regarding compensation for the proposed new pipeline running through our private garden ground. I received a holding email saying that I would hear back within 5 working days, however the 5 working days expired last Thursday. I was thinking of sending a chaser, with a date by which I need a response. Would you have any suggestion as to what I can say in terms of my next course of action. I have stated that unless I see progress on the queries and a response to the compensation situation, then I would have no option but to object to the proposals. The deadline for objecting to the Section 3 notice is 27th April. Whilst writing this message to you I have just received a further email from SW saying they are still reviewing the points raised in my letter, and that they will aim to have something over to me by the beginning of next week. Do you have any further thoughts? Graeme
Expert:  JGM replied 1 year ago.
There is still a reasonable amount of time. Tell them you would wish to hear from them by Monday at the latest as you do have to consider your own position here and would prefer not to have to object to their proposals but will do so if they don't keep in touch with you and issue a substitute reply to your last communication.
Customer: replied 1 year ago.
Will do, thanks. I'll keep you posted.
Expert:  JGM replied 1 year ago.
OK. Please don't forget to leave a positive rating on the system so that I am credited for my time.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10919
Experience: 30 years as a practising solicitor.
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