BRIEFING NOTE: CON29DW: Understanding adoption agreements

Our fifth webinar, CON29DW: Understanding adoption agreements, is now available on catch up on the DWSN YouTube Channel. This webinar is part of a programme initially developed to celebrate the Drainage and Water Searches Network’s (DWSN) 10th anniversary. 

Knowing if the water and sewerage pipes serving a property have been or will be adopted by the relevant undertaker is of great importance to property buyers and can be complex. This briefing note provides an overview of the key points from the webinar:

1. What is a s104 agreement?

A Section 104 is a legal document under the Water Industry Act that a developer and water and sewerage company enter into. This legal document relates to new sewers only and confirms how the sewers should be laid in the land that is being developed. The Section 104 Agreement must be in place prior to any sewer works taking place. The developer is responsible for ensuring that the sewers are installed and built to the correct standards which is contained within the Code for Adoption. A Section 104 agreement is usually signed at the early stages of a new housing development and can last for several years, until the water and sewerage company are satisfied that the sewer network has been completed as per the terms set out in the Section 104 Agreement. It is the developer’s responsibility to process the Section 104 (s104) through to adoption.

The CON29DW will advise you on the status of a s104 and the agreement entered into with the water and sewerage company for the area concerned; it is not with the local council.

Also worth noting is the private sewer transfer of lateral and shared drains to public ownership in England and Wales on 1st October 2011 as this had an impact on some s104s. If a Section 104 was dated before 1st July 2011 and connected to a public sewer before 1st July 2011, the Section 104 would have been automatically vested by the water and sewerage company.

2. CON29DW: S104 agreements

Typical responses to the s104 question will advise if the sewers in a development are adopted or going to be adopted by the sewer undertaker. This question is key to understand because if there is no s104 in place the homeowners in the development may end up liable for the repair and maintenance of those sewers.

When dealing with new properties it’s quite common that the s104 agreement is not yet completed. However, if the proposed property purchase is more than about 5 years old, as the purchaser’s conveyancer/solicitor you may need to enquire as to why there’s no agreement.

If there’s no agreement in place, the conveyancer/solicitor should check with the sewerage undertaker whether they’re planning to adopt. If not, the purchaser and the lender need to be aware of this as the cost of maintaining and repairing private sewers can be an issue.

If it is an established development and the assets around the property are all public, then this indicates that the sewers have been adopted by the sewerage undertaker.

If a s104 is in place, the conveyancer/solicitor can request a copy of the adoption agreement from the developer or the sewerage undertaker (there is usually a charge to obtain a copy from the sewerage undertaker). The s104 agreement is a standard document, but it states that, once the developer has constructed the sewer to an agreed standard and maintained it for an agreed period, the water company will adopt it and it will become a public sewer. Before this happens, the sewer remains private, owned by the developer.

3. Water mains and adoption agreements

There are two options for laying mains in new housing developments:

• Self lay provider (SLP) or
• The water undertaker.

Water adoption agreements are only required if using self-lay providers (SLP). The SLP needs to be accredited under the Lloyd’s Register Water Industry Registration Scheme (WIRS) and any work undertaken will need to meet the scheme’s Self-Laying of Water Mains and Services requirements.

Water adoptions are a more straightforward process as the new mains cannot be connected to the public network unless they are built to standard. Before the new main is connected to the public network the SLP will need to complete satisfactory pressure and bacteriological testing. Once connected the new water mains are vested and become part of the public network.

The majority of responses to Q3.3 in the CON29DW will be “no” as by the time the property is ready for selling the new water mains have already been connected. If the response is “yes”, you should check with the developer on the status of the adoption.

4. Common queries

By far the most common query is how do I obtain a copy of the agreement?

Answer: If an agreement is in place, the conveyancer/ solicitor can request a copy of the adoption agreement from the developer or the water and sewerage undertaker. There is usually a charge to obtain a copy from the water and sewerage undertaker. A developer may provide a copy of the agreement without charge, but you’ll need to check this direct with them.

Other queries include:

Q: When will the sewers be adopted or what is the delay in adoption?

A: It normally takes at least four years for a s104 to be vested, so if you do come across one that is dated three to four years ago – do not panic. There is no fixed date for adoption, and it can depend on when the development enters its maintenance period and whether remedial work is required etc. It is not unusual for adoption of the sewers to take several years.

Q: Why are the foul sewers adopted but the surface water sewers are still under the agreement?

A: There are a few possible reasons for this. For example, the foul sewers were transferred in 2011 as they drain to the public sewer network and the surface water sewers might drain to a sustainable urban drainage (SuDS) feature and as a result were not eligible to transfer and are still under the agreement. If the agreement has been in place for several years, it would be advisable to contact the developer for their proposed completion dates.

5. Support available

For more information on CON29DW searches and DWSN, head to www.con29dw.co.uk. You can access the postcode look-up tool to help find the CON29DW provider for your client’s address and the contact details for your local DWSN member. If you have any detailed queries about a particular water or drainage issue – do contact your local provider, they have specialist expert teams who will be able to help you.

There are also more videos on the DWSN YouTube Channel, these are great for induction packs and team updates and provide an in-depth look at individual questions within a CON29DW search.