Help needed with environmental restriction in title transfer

[Drellingore]

Could any of you lovely folks help me with the below?

 

• How hard is it to get a clause from a title removed or changed?
• How would I go about getting legal advice about precise definitions of terms relating to sewage?

 

Two barns we're converting are on land previously owned by the water board. Our title makes reference to a title transfer document, that has environmental restrictions stipulated therein.

 

I'm trying to work out if we can possibly have something other than a cesspool on-site (there's no public sewer for a quarter of a mile). We're in groundwater source protection zone 1 which would normally preclude anything that discharges, but the Environment Agency have an exemption permit procedure that we can go through. However, that's all for naught if this pesky clause can't be worked around. It'd be super annoying if the EA are like "yep, your proposal is perfectly safe" but because someone wrote a thing in a title that we can't go ahead, no matter how safe, sensible, and sustainable it is.

 

Hence, I'm keen to try and find some help. I've got no idea what sort of solicitor to approach (our conveyancing solicitor hasn't been very forthcoming at helping us with this), and I don't know if it's even possible to change the restrictions if there is no favourable interpretation that can be found.

 

Any suggestions would be most gratefully received. No advice or opinions will be assumed to be legal advice from a qualified professional. It'd be good just to get people's thoughts, to see if the consensus is that I'm trying the impossible.

 

For those who are interested, here's a couple of pertinent clauses:

 

Quote

5. Not to install or use on over or under any part of the Property soakaways septic tanks or any apparatus that allows agricultural commercial or domestic sewage or storm sewage overflows or Hazardous Substances to enter the ground surface watercourses or the Aquifer.

[...]

7. Not to discharge or dispose of agricultural, commercial or domestic waste on over or under any part of the Property except that approved by the Environment Agency in a Permit.

 

Now, the existence of clause 7 gives me some hope. Is what comes out of our barn conversion "domestic sewage", but what comes out of a treatment plant "domestic waste"? Why bother with clause 7 otherwise? At what point does sewage becomes something else (eg treated effluent)? Because if no amount of treatment changes it from sewage into something else, then surely we're all drinking dinosaur sewage?

 

Also, the lack of commas is not helpful. Is clause 5 referring to "the ground surface watercourses", or "the ground, surface watercourses", ie is it referring to one thing or two?

 

 

Edited November 4, 2022 by Drellingore

[ProDave]

How much land comes with these barns?  What adjacent land is there and does any of the adjacent land have similar covenants?

 

If not would you be able to negotiate with an adjoining land owner, to have a treatment plant on your land draining to a soakaway under adjacent land not subject to such a covenant?

 

This is quite common here for individual houses to have a soakaway under adjoining farmland where there is not enough room for such a soakaway on their own land.

[Drellingore]

1 minute ago, ProDave said:

How much land comes with these barns?  What adjacent land is there and does any of the adjacent land have similar covenants?

 

If not would you be able to negotiate with an adjoining land owner, to have a treatment plant on your land draining to a soakaway under adjacent land not subject to such a covenant?

 

Thanks! That's an interesting thought. I was all about to reply saying that all the nearby land is under the same restrictions, but there's on the other side of a main road which might not be. I'll do some (metaphorical) digging. Otherwise though, the answer is that everything is under the same restrictions - it was compulsory purchased by the water board decades ago, and then the whole valley was auctioned off at once by them about 15-20 years ago.

[saveasteading]

What comes out of a digester is not domestic waste any longer. In my opinion you would not get in any trouble.

[ProDave]

Do you know who imposed this covenant, when and more importantly WHY?  Does that person or body still exist?  Does the reason for the restriction still exist?

[Drellingore]

30 minutes ago, ProDave said:

Do you know who imposed this covenant, when and more importantly WHY?  Does that person or body still exist?  Does the reason for the restriction still exist?

 

Veolia, who were the water company at the time. They imposed it as the pumping station of the water supply for the whole area is 200m away - so it's understandable! However, there are cows, sheep and horses in fields right next to it, so it can't be that big of an issue.

[Drellingore]

There's also the issue that any "conductive media" need to be approved by the water company, so they'll get visibility of what's installed ahead of time.

[ProDave]

43 minutes ago, Drellingore said:

Veolia, who were the water company at the time.

So does that company exist?  If not, just who do you expect to come trying to enforce an old covenant?

[Drellingore]

4 minutes ago, ProDave said:

So does that company exist?  If not, just who do you expect to come trying to enforce an old covenant?

 

The contract is pretty well-written. The beneficiary is defined as Veolia or whoever takes on it statutory undertaking, which in this case is Affinity Water.

 

You do raise a good point though in "who is actually going to care?" I've emailed Affinity reception three times to no response, sent a letter via recorded delivery, and today emailed two specific employees. I've had no response yet. I'm sure some (especially the previous owner, who often sails close to the wind) would have just built the thing and ignored the restrictions. With the sewage discharge, there is the matter of them detecting nasties in the water. The locals said that once a car crashed on the junction by the barns, and a local farmer helpfully towed the car onto the barn plot. The next day water company people arrived in a flap, as they'd detected petrol getting into the local water supply! So their equipment must be reasonably sensitive.

[ProDave]

What exactly is this "pumping station"  If it was literally that, it would not matter what was in the ground water.  So I assume it is in fact a borehole extracting water from an aquifer or something?

 

Look up building regs, they have a bit about how close a treatment plant discharge field can be to a borehole.  If you knew exactly where this borehole was you could ensure you met the building regs distances.

 

you could try baiting them and send a recorded delivery letter stating you are intending to install a treatment plant and discharge field and if you don't get a reply by a nominated date, you will take that as them agreeing this does not breach the covenants.

[Drellingore]

15 minutes ago, ProDave said:

So I assume it is in fact a borehole extracting water from an aquifer or something?

 

I think both? The locals have always referred to it as a pumping station, including the chap next door who used to work for the water company. I haven't yet found a canonical answer online, but this industry news article refers to it as a pumping station (although from context it's clear that they're drawing water from there too).

[Joss]

A friend went on an open day to the pumping station, it extracts water from an underground chalk aquifer to supply drinking water to Folkestone, Dover and district. 

 

Have you tried asking a water treatment supplier if they have had had previous job with similar restrictions in place? They may have some idea who to contact / how to show that discharge from a water treatment plant is not hazardous to local water supply.

[Drellingore]

5 hours ago, Joss said:

Have you tried asking a water treatment supplier if they have had had previous job with similar restrictions in place? They may have some idea who to contact / how to show that discharge from a water treatment plant is not hazardous to local water supply.

 

Thanks! Yeah, I've been making phone calls to local drainage/sewerage solution companies. I've got responses varying from "yeah it'll be fine" to "no chance mate," although this is more on the topic of whether the Environment Agency will grant a permit, versus whether I'll be breaking the environmental restrictions. On the latter most folks have said "I'm not a lawyer," and the solicitors I've approached haven't responded yet

Edited November 5, 2022 by Drellingore

[saveasteading]

On 04/11/2022 at 17:21, Drellingore said:

detected petrol getting into the local water supply.

They can even analyse it (petrol) and find who spilled it. A careless client of ours was tracked a few miles upstream from the sample.

[saveasteading]

Clean is clean. Just anticipate some testing once it is running and perhaps do some yourself fif the record.

[Drellingore]

14 minutes ago, saveasteading said:

They can even analyse it (petrol) and find who spilled it. A careless client of ours was tracked a few miles upstream from the sample.

Blimey!

 

3 minutes ago, saveasteading said:

anticipate some testing once it is running and perhaps do some yourself fif the record

Ha, I wonder if that testing is going to involve a hole, a bucket, and a clothes peg over my nose..!

[saveasteading]

15 minutes ago, Drellingore said:

that testing is going to involve a hole, a bucket, and a clothes peg

No because the liquid will be almost clean even before the filter bed  and you will have installed a sampling chamber.

[MDC]

Have tried to get indemnity insurance? 

 

One issue might if the question comes up about who you have told about the restrictive covenant... but it's probably worth a go.

 

I'd have thought your conveyancing solicitor would have flagged this at purchase.

[Ferdinand]

On 04/11/2022 at 16:21, Drellingore said:

 

The contract is pretty well-written. The beneficiary is defined as Veolia or whoever takes on it statutory undertaking, which in this case is Affinity Water.

 

You do raise a good point though in "who is actually going to care?" I've emailed Affinity reception three times to no response, sent a letter via recorded delivery, and today emailed two specific employees. I've had no response yet. I'm sure some (especially the previous owner, who often sails close to the wind) would have just built the thing and ignored the restrictions. With the sewage discharge, there is the matter of them detecting nasties in the water. The locals said that once a car crashed on the junction by the barns, and a local farmer helpfully towed the car onto the barn plot. The next day water company people arrived in a flap, as they'd detected petrol getting into the local water supply! So their equipment must be reasonably sensitive.

I've always found the best way with water / sewerage companies is to start with a phone call, if you take that route.

 

But I think that potentially you are overegging this, and having slightly too many unnecessary kittens. Grab the other end of the stick - by the time whatever process that you have to deal with your .. er .. output gets to the 'property' it is no longer agricultural, commercial or domestic waste. Your treatment system has turned it into stuff that is no longer waste, and therefore OK.

 

In fact Clause 5 specifically (on one reading) allows what you need. The clause does not say you can't install apparatus, it says you can't install apparatus that puts out pollution. Treat the bolded phrase as a compound descripiion:

 

..Not to install or use on over or under any part of the Property soakaways septic tanks or 'any apparatus that allows agricultural commercial or domestic sewage or storm sewage overflows or Hazardous Substances to enter the ground surface watercourses or the Aquifer'..

 

Since your apparatus will not allow it, and will only put out manna smelling of roses, it is therefore permitted for you to install that apparatus, and it is not caught.

 

With one bound you are free, or rather you were never constrained.  *If* you can get that clear and obvious reading confirmed for your worries' sake.

 

And Clause 7 merely bans the act of actually doing what the approved apparatus prevents, which is fair enough.

 

I would suggest talking to a local specialist solicitor (ie one who has done this before) or perhaps an agricultural land agent or MRICS for 45 minutes to establish what the clause means (written down in English), and then to the EA to see how they want it implemented, if you need an exemption, and whether they will give you one. That should include the technical standards you are required to meet, and how it may be regulated.

 

Don't take the EA as gospel at first hearing - they may give you the gold-plated version that you can do otherwise.

 

In principle if someone gets arsy you could install your apparatus in a runoff proof concrete basin, or on a waterproof membrane, to hold back any unacceptable escapes should they ever happen. 

 

HTH

 

F

[Temp]

I would suggest checking the clauses are enforceable. 

 

https://www.fladgate.com/insights/restrictive-covenants-do-they-mean-i-cant-redevelop-my-property

 

Quote

To be enforceable a restrictive covenant must firstly “touch and concern” or somehow benefit other land, and the benefit must also have been intended to run with that benefitting land. The covenant cannot merely be a covenant of personal benefit to the original contracting party. It also cannot be a covenant securing a money payment obligation. Secondly, the beneficiary must actually own the benefitting land. Thirdly, the restrictive covenant must be clear. If it is ambiguous because the wording or benefitting land is unclear, or if future events were not anticipated when the covenant was originally drafted (such as a company being dissolved), then it can be an unenforceable restrictive covenant. Fourthly, if the benefitting land has ever been in common ownership with the burdened land for any period of time since the covenant was imposed then the restrictive covenant will not be enforceable. Fifthly and finally, the benefit of the restrictive covenant must pass to the beneficiary by “annexation”, “assignment” or “scheme of development”.

 

If your Package Treatment Plant meets certain rules I don't think a permit from the EA is needed. This might mean a permit cannot be obtained because the EA doesn't issue them to plants that comply. That in turn might make the 7th clause unenforceable on the grounds that a permit can't be obtained. 

 

I think more investigation required.

 

Google says unenforceable covenants can be removed via the "Upper Tribunal (Lands Chamber)" but this might take time and money. 

Edited November 5, 2022 by Temp

[Jilly]

Bear in mind that self building sends you a little crazy if you have any tendencies towards overthinking... You may find each part of the whole thing sends you into a bit of a sleepless tizzy til you have got you head round the subject and the risk it presents. In the end you'll have to make the best decision you can with the evidence available. Ask me how I know. My builder reminds me each time that onr worry is soon replaced with a new one... 

[Jilly]

Ps I doubt you could get a restriction removed which says don't pollute, as the others have said, just make sure your system works and get insurance if you can. 

[Temp]

Yeah you probably couldn't get it removed on the grounds it's not needed but it should be possible if its not enforceable due to the wording or in some cases because its impossible to comply. For example because the EA no longer issues the type of permit envisioned. 

[Drellingore]

Thanks to the folks who suggested indemnity insurance (@MDC, @Jilly). Looks like I might've shot myself in the foot here by (doing the decent thing and) reaching out to the beneficiary of the restriction to see if it can be sorted out. An insurance broker is looking into it though, to see if I can:

 

1. Put a cesspool in the planning application
2. Apply for an Environment Agency permit for something more sustainable than a cesspool
3. If it's granted, put in a planning amendment
4. If that's granted, install a packaged treatment plant or whatever
5. Take out insurance, and/or try and get the restriction removed

I suppose the insurance companies don't want you to speak to the beneficiary firstly because that increases the chances of them noticing and objecting, and secondly because if you resolve the issue, then you won't need to keep paying your insurance premium any more!

[MDC]

6 minutes ago, Drellingore said:

Thanks to the folks who suggested indemnity insurance (@MDC, @Jilly). Looks like I might've shot myself in the foot here by (doing the decent thing and) reaching out to the beneficiary of the restriction to see if it can be sorted out. An insurance broker is looking into it though, to see if I can:

 

1. Put a cesspool in the planning application
2. Apply for an Environment Agency permit for something more sustainable than a cesspool
3. If it's granted, put in a planning amendment
4. If that's granted, install a packaged treatment plant or whatever
5. Take out insurance, and/or try and get the restriction removed

I suppose the insurance companies don't want you to speak to the beneficiary firstly because that increases the chances of them noticing and objecting, and secondly because if you resolve the issue, then you won't need to keep paying your insurance premium any more!

The indemnity insurance premium is a one-off payment, say around £500 [average guess]. The insurers don't want you telling the potential beneficiaries about the issue, to avoid a pay out. I suppose the insurance relies on the person/company who took out the covenant not being aware of their own covenant. It's only a matter for whoever took out the covenant. So if this goes back donkey's years, it may be no one knows about it and that reduces the risk to the insurer. Also, no one who isn't a beneficiary of the covenant can use it against you for their own benefit - they could of course, make the owner of the covenant aware. Hope that makes sense!