Section 37 – Common maintenance
64.This section inserts a new Part IIA into the 1968 Act. The new Part applies to private sewage treatment works which are owned in common by two or more persons and the discharge of the contents of which are authorised under the Controlled Activities Regulations. Private sewage treatment works such as septic tanks will usually involve some discharge to the water environment and that discharge will usually require authorisation under the Controlled Activities Regulations.
65.The term “private sewage treatment works” is defined in section 59 of the 1968 Act as meaning any works, apparatus or plant used for the treatment or disposal of sewage that is not vested in Scottish Water. It includes a septic tank, but not a SUD (Sustainable Urban Drainage) system.
66.At common law, where property is owned in common, the consent of all pro indiviso owners is generally required before any alterations, non-essential repairs or other works can be carried out upon it, although the grant of ownership (as recorded in the title to the property) may make different arrangements. The new Part sets out new rules regarding the maintenance of private sewage treatment works owned in common that override any conflicting provision of the common law or any contrary provision that may exist in the title deeds of the properties concerned.
67.The new Part provides that, where works need to be carried out to private sewage treatment works that are owned in common in order to comply with conditions of the works’ authorisation under the Controlled Activities Regulations, any one proprietor may carry out (or instruct) those measures without having to secure the consent of all (or a certain proportion of) the other co-proprietors. Before doing so, the owner(s) wishing to carry out the measures must serve a notice under new section 38D of the 1968 Act upon each of the other owners, who may apply to the sheriff under new section 38E for review of the notice if they are unhappy with the measures proposed.
68.The new Part also makes provision for each of the owners of the works to be liable for a share of the cost of measures taken under new section 38C(2) of the 1968 Act, based on the same proportion that each owner’s pro indiviso share of the property bears to the whole. New section 38F makes provision for an owner to recover the cost of measures taken, subject to the cost having been incurred and to the service of a notice.
69.Provision is made in new section 38G of the 1968 Act for liability for the cost of measures to continue notwithstanding a change in ownership of any property connected to the private sewage treatment works.
70.New section 38H of the 1968 Act provides for a definition for the Controlled Activities Regulations and related matters. The Scottish Ministers may make consequential modifications of that definition by regulations.