Business Clinic: Can we build if water main on proposed site?
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Solicitor Harvey Davies of Thrings Agriculture advises on the issue of water mains on a potential farm building site.
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Q: We are planning to put up a new agricultural building but there is a water main crossing the site where we are proposing to build. Is this a problem and how should we proceed?
A: A water main near the site of a new building raises issues that will need to be considered at an early stage, including dialogue with the water company, known as an undertaker, responsible for the water main.
First, check the exact route of the water main by requesting a copy of the undertaker’s plans, and whether any legal agreements exist in relation to the main when it was originally laid.
Subject to any legal agreement, the landowner will need to consider their responsibilities and the rights of the undertaker, in relation to the main.
There is no statutory procedure controlling building over or near water mains, but undertakers benefit from various statutory easements in relation to the mains for which they are responsible.
The relevant easements in this case can be found in s159(1) of the Water Industry Act 1991, which gives the undertaker the power to:
A. Lay a water main (above or below the surface) across the site and to keep it there
B. Inspect, maintain, adjust, repair or alter the water main
C. Carry out any works related to the purposes of any works falling within a) and b) above
In addition, undertakers issue guidance relating to building near a water main, which sets out the required stand-off distances between any new structure and the main.
The larger the main, the greater the stand-off distance required and, while the guidance of each undertaker will vary, a typical example would be that no building is allowed within 5m of a water main with a diameter measuring between 180mm and 400mm.
If the new building is likely to damage the water main, or render it more difficult for the undertaker to exercise its rights (for example, carrying out repairs), case law has indicated that the undertaker may be entitled to an injunction against the landowner to restrain such interference (including the removal of the building if already erected).
Landowner options
Clearly, undertakers take the matter of building over or near a water main very seriously, and you should consider your options carefully.
First, look at alternative locations for building. However, that may not be practical or you may think that the presence of the water main will also inhibit other future developments.
In this case, you could make a request to the undertaker to divert the water main.
Under s185 of the Water Industry Act 1991, you are entitled to issue a notice requiring the undertaker to alter or remove the main on the ground that this is necessary to enable you to carry out a proposed improvement of your land.
An improvement would include the construction of a new agricultural building.
If you did issue a notice under s185, then the undertaker is obliged to comply with the requirement contained in the notice, unless the requirement is unreasonable.
However, you would be liable to pay the costs imposed by the undertaker for the works, in accordance with the relevant charging rules.
Furthermore, the undertaker may require you to provide security for those costs before proceeding with the works.
Taking early legal advice can ensure that you proceed on the right footing, avoid costly mistakes and reduce the risk of interruptions and delays to your plans.
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