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Lawyer Harvey Davies of Thrings Agriculture gives his opinion on the issue of water lines at a potential farm construction site.
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Q: We are planning to build a new farm building, but there is a water pipe running through the site where we are proposing to build. Is this a problem and how should we proceed?
A: A water main close to the site of a new building raises issues that will need to be considered at an early stage, including dialogue with the water company, called the undertaker, responsible for the conduct of ‘water.
First, check the exact route of the water main by asking for a copy of the plans from the funeral home and whether there are any legal agreements regarding the water main when it was originally laid.
Subject to any legal agreement, the landowner will have to consider his responsibilities and the rights of the undertaker, in relation to the principal.
There is no legal procedure for controlling construction above or near water pipes, but undertakers do benefit from various legal easements in relation to the pipes for which they are responsible.
The relevant easements in this case are found in section 159(1) of the Water Industry Act 1991, which gives the contractor powers to:
A. Lay a water pipe (above or below the surface) to the site and hold it there
B Inspect, maintain, adjust, repair or modify water main
VS Carry out all work related to the purposes of all work falling under a) and b) above
Additionally, undertakers publish guidelines for building near a water main, which define the required safe distances between any new structure and the water main.
The longer the pipe, the greater the safety distance required and, although individual contractors’ advice will vary, a typical example would be that no building is permitted within 5m of a water main. a diameter between 180 mm and 400 mm.
If the new building is likely to damage the water pipe or make it more difficult for the contractor to exercise its rights (for example, to carry out repairs), case law has indicated that the contractor may be entitled to an injunction against the owner restraining such interference (including the removal of the building if it is already erected).
Obviously, funeral directors take the issue of building over or near a water main very seriously, and you need to consider your options carefully.
First, look at alternate locations for construction. However, this may not be practical or you may think that the presence of the main water pipe will also prevent other future developments.
In this case, you could ask the undertaker to divert the aqueduct.
Under section 185 of the Water Industry Act 1991 you have the right to issue a notice requesting the contractor to alter or withdraw the main on the grounds that it is necessary to enable you to carry out a proposed improvement to your land.
An improvement would include the construction of a new farm building.
If you issued a notice under section 185, the funeral director is required to comply with the requirement in the notice, unless the requirement is unreasonable.
However, you would be required to pay any fees imposed by the contractor for the work, in accordance with the applicable pricing rules.
In addition, the funeral director may require that you provide security for these costs before proceeding with the work.
Getting legal advice early can ensure you proceed on the right foot, avoid costly mistakes, and reduce the risk of interruptions and delays in your projects.
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