Consents to Discharge – do I need one to sell my property?

Consents to Discharge are required if your property is not connected to the public sewer.

It is an offence under the Water (NI) Order 1999 to discharge sewage effluent into a waterway or soakaway without the consent of the Department of Agriculture, Environment and Rural Affairs (DAERA).  It applies to all active discharges, regardless of when they commenced.  Furthermore, failure to install and maintain a treatment system in accordance with the conditions of the consent is a criminal offence. 

The lack of consent to discharge is commonly identified throughout the conveyancing process, either; i) by the vendor’s solicitor, when preparing the title deeds to send to a purchaser, ii) by the vendor’s responses in the Replies to Pre-Contract Enquiries document to be provided to the purchaser or, iii) by the response of NIEA in the Regional Property Certificate, requisitioned by the vendor as part of the transaction.  By the time the lack of consent is identified in many cases, some four weeks could have elapsed from the property being agreed for sale and frustratingly for all parties concerned, the property may have spent many weeks or months on the market before that! 

If a property does not have the necessary consent, the application process to get it takes approximately four months.  This could lead to a purchaser, or purchasers, as the case may be, walking away and could ultimately jeopardise the sale of the property.  Mortgage lenders will not agree to a purchaser proceeding to completion of the purchase of a property without consent.  However, in certain circumstances the lender may agree to an appropriate retention of the purchase price until the consent is issued, allowing the transaction to complete.  For the purpose of obtaining consent, existing discharges will be assessed and if the system is not functioning correctly, an upgrade to current design standards will be required prior to the consent being issued.  Not only could this prove very costly to a vendor, as it may not have been an expense that was considered when deciding to sell, particularly if a new tank or system is required (which includes the appointment of an agent to deal with the new treatment system selection and installation), it may also have ramifications for the vendor’s future plans, such as an onward purchase.

The consent will have a map attached which will identify the location of the tank or system and any soakaways.  It is important that these are accurately identified.  The soakaways may lie beyond the boundaries of the property.  The consent does not grant any rights of access to third party land to install or maintain the tank or system.  Therefore, it is the consent holder’s responsibility to have any appropriate rights in place from adjoining landowners.  This can be challenging in certain circumstances if relations are difficult with a neighbour for example!

It is prudent for purchasers to review the consent with their solicitor, prior to entering into contract to purchase the property, to confirm that the location of the tank or system on the map attached to the consent, accords with the position on the ground.  Inconsistencies may lead to the consent being voidable.  Purchasers should also be made aware of their responsibilities under the consent as non-compliance can lead to a fine or imprisonment.

It should be noted that the NIEA are currently developing an online application system which should make the process of obtaining consents much quicker.  However, from a vendor’s perspective it is prudent to consider appointing a solicitor as soon as your property is put on the market (or even before this) as issues such as lack of consent to discharge and appropriate rights of way could be addressed prior to the property being agreed for sale.  The earlier the better!

Janeen McKay is a solicitor in the property department of Worthingtons Solicitors.  She can be contacted on 02891811538 or email [email protected]