Power for drainlayer to enter property to fix blocked sewer 

We have a situation where a shared lateral sewer line is blocked casing problems for the two properties above, but the owner of the property below will not let the drainler onto their property to fix it! It has been videoed, so there is no doubt where the problem lies! If there are no easements in place, what gives a drainlayer the power to enter the property to fix the problem? (Possibly Sect 30, 34  of the Health Act ?)

Answers:

A: Have a look at LGA'74, Private Drains, and in particular sections 459 through to 462.  Section 461 may apply.

A: The Act gives no power to the drainlayer, unless he is a person authorised in writing under s128, which is the authority you need.  If the drainlayer is not an authorised person either make him/her one, or send one along with him or her.  

A:  Sections 459 to 461 of the Local Government Act 1974 are still in force.  See below. I believe that a drainlayer is an agent of the  occupier and certainly this would be implicit to give full effect to the statutory provisions. Ultimately you will see that in Section 461(3) the District Court has jurisdiction.

I am assuming that the "sewer" you mention is a private drain and not a sewer vested in the local authority. The term "sewer" was defined in the now revoked Drainage and Plumbing Regulations 1978 as meaning a sewer or drain that is vested in the local authority or is under the control of or maintained by the local authority whilst a "drain" has the meaning set out in the Plumbers, Gasfitters and Drainlayers Act 2006.

If as a result of the blockage a nuisance situation has arisen say in terms of section 29(a) or (d) of the Health Act 1956 and you as EHO or the Engineer believe that this has given rise to a situation which would bring the matter within the scope of section 34 then you and/or the Engineer "with such assistants, and without notice to the occupier of the property where the blockage is occurring may enter and abate the nuisance.

This section is not a carte blanc but requires you or the Engineer to be satisfied that IMMEDIATE action is required to abate the nuisance because it is giving rise to offensiveness or is likely to be injurious to health.  The word "likely" means more than just a possibility.

I guess that you have spoken with the recalcitrant party and perhaps another talk might go well when you can point out that if the matter goes to Court or you invoke section 34 that he/she will likely end up paying for the matter including Court costs and the costs of abating the nuisance.

You seem to be in a quandary regarding easements. Has anybody had a look at the titles to see what if anything is recorded there? Could be that rights of access are  to be found there.

I have not had a look at any provisions of the Building Act as time is passing and you may want to get something done today before the parties at the top of the drain suffer further from constipation or a distended vesica urinaria. You may have to institute a night soil service and since that falls within the provisions of the Third Schedule of the Health Act 1956 there may be further delay in terms  of section 54 et seq

The works are authorised under or pursuant to the Act by virtue of ss23(b) and 23(c). (and the nuisance identified by s29(a))