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Surveys and septics

Solicitors are becoming concerned about what is covered by certificates of compliance in relation to houses served by septic tanks. Rory O’Donnell lays the groundwork

In June 2023, the Environmental Protection Agency (EPA) released a report indicating that 49% of treatment systems (septic tanks) that were inspected failed because they were not built or maintained properly – 20% of those were considered a risk to human health or the environment.

When a person applies for planning permission for a house for which there are no public mains available, information about the onsite sewage treatment system proposed and evidence as to the suitability of the site for the system of foul and surface water drainage proposed must accompany the planning application (article 22(2)(c) of the Planning and Development Regulations 2006) so that the planning authority can assess the suitability of the site for the systems proposed. 

The information typically involves evidence of a percolation test to assess the permeability of the soil. 

However, other factors – like the height of the water table, proximity to a river or stream, the contour of the ground, whether the house to be built will be relying for its water supply on a well to be located on the site – may also be relevant. 

Adherence to the EPA Code of Practice is required by local authorities as part of their development plan policies. 

As such, the drainage arrangements for a domestic waste-water treatment plant (or septic tank) and surface water (usually run-off from a roof, yard, paths, driveway or such like) are part of the planning process and should be covered by the certificate of compliance with planning.

Solicitors just need to ensure that there are no exclusions in the certificate of compliance. 

Need for inquiry 

It has been the practice for many years for solicitors for purchasers to advise clients to have a survey carried out on any property they are purchasing. 

I believe that solicitors for purchasers of a property drained by a septic tank or equivalent should inquire before contract as to whether the septic tank has been registered and whether it has been inspected by the local authority, and whether any advisory notice was issued as a result.

The need for such enquiries is because any necessary remedial work to deal with a problem drainage system may be expensive, and a purchaser needs to know about it before committing to a purchase. 

I believe that a purchaser should ask their surveyor to advise if:

• The septic tank and the percolation area is the required distance from the house, roadway, and boundary as laid down in the EPA Code of Practice.
• The septic tank and the percolation area are wholly contained within the site. In the event that any part of the septic tank or percolation area is outside the site, the purchaser’s solicitor needs to know, so as to ensure that all necessary easements in connection with such arrangements are in place. The position needs to be confirmed by a declaration of identity from a suitably qualified person (usually an architect, chartered surveyor or engineer).
• Effluent from a percolation area or surface water sump is discharged outside the site in such a way as to require a discharge licence. 

The EPA code provides that: 

• Discharges from a domestic waste-water treatment plant or septic tank to a watercourse require a discharge licence. Discharge licences for such situations can be difficult to obtain.
• Discharges into the soil on the site are exempt (subject to certain limits).

If there are issues over the drainage arrangements for a property, a possible fall back for purchasers is to consider getting advice from their surveyor on whether a new septic tank and any necessary percolation areas could be installed within the confines of the site – and, of course, approximately what this would cost. 

At least then, a purchaser will know that, if the existing waste-water system is faulty, the problem is one that can be sorted, even if that is at a price. 

Updated memorandum 

I have revised and updated paragraph 10 of the specimen client memorandum in relation to surveys, which I drafted and which is on the Law Society website for use by colleagues.

Solicitors need to consider qualifying their certificates of title if a purchaser wishes to proceed with a purchase where the regulations regarding the septic tank have not been complied with. 

If the purchaser wishes to proceed without a survey that includes the septic tank, then their solicitor should assess whether they have the necessary information confirming that the septic tank is compliant. If they do not, then, again, they will need to consider qualifying their certificate of title. 

This article has been published with the support of the Conveyancing Committee of the Law Society of Ireland. The insights and information presented are intended for general guidance and informational purposes only. 

The Law Society of Ireland, its Conveyancing Committee, and the author(s) do not accept any responsibility for losses that may arise from reliance upon the information contained in this article. It is not intended to be a substitute for specific legal advice. 

Readers are strongly advised to seek independent legal counsel to obtain advice tailored to their particular circumstances. 

Rory O’Donnell is consultant to the Law Society’s Conveyancing Committee.