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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12086
Experience:  30 years as a practising solicitor.
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I contacted you some time ago about the buried sewer below

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Hi. I contacted you some time ago about the buried sewer below my new build property in Edinburgh. After 4 years SW have agreed to waive the need for sec 21. Instead they have agreed to a simple Title condition highlighting the fact that the sewer is present. A letter outlining respective obligations together with the Assetts plan is to be registered in the Council Book of Sessions. The only thing I really want to achieve now is for SW to take responsibility for any damage they may cause to the property during routine maintenance or repair of their sewer pipe. I accept that any owner of the property should be responsible for the property repairs in the unlikely event of catastrophic collapse or burst of the sewer.
SW had a report done by Mouchel Consultants. It was concluded that it would not be practical to dig down for repair due to the constraints of the steeply sloping site, poor access and proximity of the two houses on the plot . SW confirmed in writing that the structure is not viewed as an obstruction and they would pay to re-route the sewer should this ever become operationally necessary..also, access for every day maintenance and repair could be archived via a manhole to the South.
CCTV inspections have shown that the pipe is constructed of sectional concrete rings and it has been explained to me that any burst is likely to be localised rather than catastrophic due to this. There are no records to indicate exactly but they feel the pipe was positioned by tunnelling.
I believe that one of the reasons SW moved away from sec 21 is they were legally advised not to enter into a signed agreement to protect them from any legal action in the future should any fatality occur in the future from a sewer collapse.
SW have agreed to carry out CCTV inspections at their own expense at 5 yearly intervals and more frequently should any deterioration in the pipe be found. This should help with insurance but obviously if they continue to refuse to add a line to the letter outlining respective responsibilities as follows.
I want them to agree to:-
SW will use reasonable endeavours to ensure that any work required to the sewer to operate, maintain, cleanse etc is done in a manner which causes least interruption and inconvenience to the House. SW shall repair and/or re-instate any damage caused to the House by their works and at their sole expense.
They will only agree to:-
All of first line but ' inconvenience interruption AND DAMAGE. Removed the 2nd line completely.
During a meeting I had with SW in February it was my understanding that my point that the sewer pipe is buried 7.4 metres at the shallowest point below the foundations and the house is no longer viewed as an obstruction, together with the house being seen as unlikely to interfere with day to day operations due to access from the South, unlikely I accessibility from above and confirmed in the draft responsibilities that, the build is not seen as a threat to the sewer due to insignificant additional loading - why should any owner be responsible for SW Assetts? So they have confirmed that the pipe is Vested in SW but should they be responsible for any damage they may cause for routine operations? I need a valid argument for this point.
The Sewerage Scotland Act 1968 talks about responsibilities where SW act negligently - could this be used to my advantage here?
Also - the same act refers to an exclusion zone of 5 metres - does this or could this be automatically applied as 5 metres from the house as measured along the surface of the land or is there an argument to say that the pipe is actually outside of a 5 metre exclusion zone vertically?
Obviously the house has been built above the sewer but as SW have agreed that the house can remain where it is and this is also confirmed in the draft letter, should they agree that it is now there, it can remain, it is the responsibility of any house owner to get insurance to protect against the cost of any re-instatement if damage caused by sewer collapse but shouldn't they therefore have some responsibility for damage caused during every day maintenance?
Could their concerns revert back to agreeing to some responsibility where technically and however unlikely, loss of life could occur.
Please note - onlyCustomerto reply please.
Many thanks
Thank you for your question.
Is the title condition being considered going to be by way of the grant of a Deed of Servitude by you in favour of Scottish Water?
The reason I ask is that the sewage pipe is on your land and there is no exclusion zone going downwards. You own everything below your land.
The normal servitude would be that Scottish Water have rights of access for repair, renewal and maintenance with provision that they reinstate any damage to your property. So you are right, in my opinion, and should try to negotiate into that position. The 1968 Act is not helpful as arguments could arise as to whether there was negligence.
Happy to discuss further.
Customer: replied 2 years ago.
Hello. Did you just receive my reply to your answer?
No. There's just what's here.
Customer: replied 2 years ago.
Don't know what happened there will try again...
The Title condition simply reads as follows
It is noted that there exists a public sewer (as defined in the sewerage scotland act 1968) which runs through subjects as shown on the plan attached to the letter of consent granted by SW dated (. ) 2015 and registered in the books of council and session on (. ) 2015
So no I don't think this is granted as a deed of servitude but I am not familiar with registration process.
From memory, there is a paragraph in the Title which refers to SW having powers if access which I assumed as standard and was in the title wording already for number 67.
Could you explain in simple terms how I stand
Even though the pipe was buried prior to any land purchase for 67 and then land split to build 65 - do I own the land therefore SW owns the pipe but they have statutory powers of access but should repair any damage caused by routine maintenance or repair regardless of the build over?
As this is a delicate situation and only in draft format at this stage - should I accept the wording they propose in the draft as above but rely on the fact that they would have no choice but to re-instate at their cost in such an event?
Would not having the additional wording in the draft (re-instate at their cost) affect their responsibility to re-instate at their expense if something happened?
Where could I find the correct wording of their responsibility for reference purposes for potential insurance purposes ie: I would submit the draft obligations statement to insurer but add that SW have a standard responsibility to re-instate in such an event?
Why do you believe SW would refuse to add the line they deleted from the draft if they are surely aware they have a responsibility here?
Would the paragraph they propose mitigate any standard responsibility on their part?
I can't work out from what you say what the title position is. What it SHOULD be is that SW have rights of access to carry out maintenance and repair subject to making good any damage to the property. That is the norm and that is the type of wording you should be insisting on. You won't find the wording easily but it is the type of wording that would appear in a Deed of Conditions and would be drafted specifically for you by your solicitor.
For the avoidance of doubt anything that passes through your land is your property but under the legislation SW have access to it.
The reason they are refusing to put in the bit about repair and reinstatement is that presumably they take the view that the house shouldn't have been built over an existing sewer pipe.
However, one wonders what they have to gain by not obliging themselves to reinstate any damage given that they probably have a common law obligation to do so anyway. If they did cause any damage the proprietor could hold them liable in negligence.
Customer: replied 2 years ago.
Thank you
The paragraph in the draft letter referring to the House owners obligations is below. In your view - would this release SW from their common law obligation in any way? In my mind the purpose of the paragraph is in the event of catastrophic collapse of the sewer or burst but do you believe SW intention with this wording is for the house owner to be liable for all and any damage ie: caused by collapse, burst, everyday maintenance and repair of the pipe?
The current owner of the House shall accept full liability for any loss, injury or damage to the house or to persons which loss, injury or damage has been caused by the House being built over the sewer and will not seek compensation from Scottish Water in respect thereof.
You say the proprietor could hold them liable in negligence as they probably have a common law obligation to re-instate any damage caused by ordinary maintenance. Would this common law obligation always stand regardless of what is written in the draft letter?
No, th common law liability in delict would be displaced if you accept that wording. You should not do so or at the very least the phrase "save in the event of negligence on the part of Scottish Water. "
I would also observe that "loss, injury or damage caused by the house being built over the sewer" is quite unspecific. Does that mean damage caused by the mere fact that the house is there or damage caused because of work to the sewer infrastructure?
JGM and other Scots Law Specialists are ready to help you
Customer: replied 2 years ago.
Hello. I have a meeting with SW tomorrow for one last push. I have drafted an email to send to them ahead of the meeting to consider points prior as I have done previously.
I am fighting on the basis of the fact that in my view it was agreed in the last meeting that my point as below was valid. There were no objections raised therefore I assumed I would just need to source insurance for damage to the house in the event of a catastrophic collapse or burst of the sewer pipe
' Within the Sewerage Ecotland Act 1968 SW takes responsibility for any work carried out negligently. It has been confirmed in writing that the structure is not viewed as an obstruction, you are now asking me to agree that SW will have no liability for any loss or damage to the property arising from the existence, operation or maintenance of the sewer. So if you have accepted and confirmed in your report that it would never be practical to dig down on the site, there is no threat from the structure to the pipe and any maintenance or repair would be dealt with via manhole access to the South - how is it practicle to accept that the owner should be liable for any damage SW may cause operating, maintaining or repairing the sewer which is buried 7 metres down'
In the covering email which attached the draft wording for the letter to be registered in the Council and Book of sessions , the SW lawyer said the following
'SW cannot accept liability for damage to the house because of it's proximity to the sewer and the difficulties that causes'
Do you believe I have any argument to present other than:-
1. My understanding that SW would accept liability for maintenance etc after last meeting
2. Their liability obligations to houses outside of the exclusion zone if something major happened/other houses with sewers running below
Ie: should I be asking SW what they think could possibly happen at 7 metres down and wouldn't there be insurance in place for such liabilities on their part?
Anything else you can think of...any case for them taking responsibility as they have agreed for the house to remain for example
I guess they could still try for an order to demolish if I threatened to walk away but I think I would have to make a judgement after finding out how difficult it will be to source insurance for any event and to include personal liability if they continue to refuse this obligation
Thank you
There is perhaps a distinction between potential damage arising from the proximity of the house and the pipe to each other and the potential damage arising from future maintenance and repair. In th former it may be that SW would wish to exclude liability but in the latter they would not seek to do so.
I think also you will find that SW won't necessarily carry insurance. They may be Crown insured rather than privately insured. Or they may not carry insurance for claims below a certain level.
I very much doubt from a PR point of view and having regard to the sequence of events thus far that they would seek an order for demolition.
Customer: replied 2 years ago.
Thank you
In the worst case scenario, if they refuse to move from their position - should I try to get an agreement to submit the wording to insurers and if unsuccessful in being able to obtain cover for any event of damage, revisit with SW on that basis?
Yes, that would be sensible.