While this was undoubtedly good news for homeowners, the construction of these sewers by their former owners created a legal grey area. Each company in the water sector has its own construction policy above or near public sewers. For Severn Trent Water, if a homeowner wants to build in the immediate vicinity of an existing public sewer, they will have gone through one of two processes. Until the late 1990s, they reportedly entered into a construction agreement with Severn Trent Water defining both their rights and those of the water company. This becomes more of a problem if you are acting for a commercial lender. How can you satisfy a commercial lender where a search for water and drainage shows that a property has been built on top of a public sewer and that there is no evidence of superstructure authorization, that there is no risk of a legal bogeyman entering the land, digging up the ground to access public sewers and not repairing the damage? A Build Over agreement gives the water company the assurance that the work to be done will not negatively impact the underlying sewers and also ensures that the water company retains sufficient access to the sewers so that it can be repaired and maintained. If you plan to build near or above a public sewer, you should contact the water company before the work done to identify the needs. In accordance with Part H4 of Regulation 1 of the 2010 Construction Code, SI 2010/2214, construction work over a public sewer requires authorization for the operation of sewers. These include siding channels and surface water. If a public sewer passes underground, the owner may not build on or within three metres of the centre line of the sewage drainage canal without the agreement of the sewer superintendent. This consent is the “build-over agreement”. The agreement is necessary before the start of the work and may be refused.
If the winter garden was built more recently without a build-over agreement, the same sanctions and solutions are available. Interestingly, if the winter garden required a building permit, the construction inspector may need to consult a construction agreement before cancelling the work. The back-to-case position in relation to residential property and a lack of consent to construction appears to be liability insurance. However, as commercial real estate lawyers know, taking out liability insurance for commercial real estate is much more expensive. The answer is not clear. The study of the sewer history under the property must entail costs to be convinced of the position, or there must be costs of obtaining a compensation policy. One way or another, this is an unpleasant situation that is not provided for in the regulation on the transport of private sewers and will probably only be more frequent, given that real estate that would have been above private exits before 2011 is now public. This potential risk is problematic if the winter garden was built before July 1, 2011. . .
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