Our septic tank is located in our cousin’s field — do we have a right to access it or do we need to move it?

We always assumed we had a right of way to the septic tank but now it’s been fenced off and our cousin is suggesting we move it on to our site

Dear Mary Frances, we inherited a house in the country a few years ago, which we use as a holiday home, with various family members spending time there. Our late aunt left it to us — it was given to her late husband by his parents, with his brother inheriting the rest of the farm. The farm is now farmed by a nephew.

The house site is part of our cousins’ land and we never had any issues with them. As I said, we visit a few times a year, mainly to keep the house lived in.

We’ve updated it a bit in recent years, putting in new windows and insulation. But we never really paid any heed to the septic tank. It’s about 150 yards from the house in a field and we always assumed that we had a right of way to it.

But a few months ago, we spotted that new fencing had been put up — we don’t know when — but it blocks us getting to the septic tank.

I asked our cousin about it when I was last down and he made out that he didn’t know what I was talking about, that there was always a fence dividing the area.

But we think the fence was at the other side of the septic tank area and has been moved to include the strip of land that has the septic tank in it.

When I asked him about getting access to the septic tank, he said there isn’t a right of way and we should look at moving the septic tank on to the site of the house, which isn’t large, so I don’t even know if that’s possible.

I don’t know how to go about dealing with this — do we have an automatic right to access the septic tank? I’ve looked on Land Direct to try see the maps, but it’s not clear whether the septic tank is included.

Dear reader, this is a complex situation and the first thing you need to do is equip yourself with more information about where exactly the septic tank is located.

Your first step is to engage the services of a local civil engineer to attend at the property and identify the exact location of the septic tank, and clarify if it is indeed on the other side of the newly erected fence.

He should also check if there is a percolation area with the septic tank. The engineer will also be able to check the maps to see if there is a right of way registered for the septic tank over the lands now being farmed by your cousin.

I suspect that there is not and that your cousin has already investigated this and, based on his enquiries, has erected a new fence.

I also doubt very much that he would grant you a wayleave to the septic tank, as he as good as said no when he suggested that you move the tank.

Due to new legislation which came into effect on December 1, 2021, rights of way/wayleaves no longer have to be registered, and registration of them is optional rather than compulsory.

Since December 1, 2021, if you and your predecessors in title have enjoyed and exercised a right of way/wayleave for many years and without dispute or interruption, that is sufficient evidence that there is a right of way/easement in place.

The right of way/wayleave has to be used continuously or it may be lost if it is not. Did your aunt live in the house that you inherited until she died?

If she did and always used the septic tank, and it would appear that you are continuing to use it, then I do not believe that your cousin can stop you from accessing it to do reasonable things such as emptying and servicing the septic tank, repairing pipes, etc.

However, his idea of moving the septic tank is something that perhaps you should consider. Some day, you or your children or grandchildren may want to sell the property.

You also do not want to find yourself in a situation where you have to send solicitors’ letters or get involved in litigation with your cousin.

Although you have no plans to sell the house now, no one knows what the future holds.

Houses with septic tanks located outside the boundaries of the property, particularly where there is no registered right of way, are less attractive to potential buyers than those where the septic tank is located inside the boundaries of the property.

In addition, even if there was no issue with access to the septic tank, an engineer’s survey commissioned by a potential purchaser might reveal that the area where the septic tank is located is too small and may need to be extended to incorporate a percolation area, and it would not be possible to do that where the septic tank is located outside the boundary of the property.

If you want to relocate the septic tank, you will need to make a planning application to the local County Council and engage an engineer to do that.

If planning permission is granted, it is likely that the County Council will make it a condition of that planning permission that you install a Proprietary Effluent Treatment System, which could cost in the region of €20,000 or more to install.

I do not know whether you would get planning permission but I believe that County Councils lean towards granting it in situations where a septic tank is being upgraded to a system that is more environmentally friendly.

However, you need to consult a civil engineer to seek advice on your chances of getting planning permission if you are thinking of going down that route.

Relocating the septic tank would be expensive but would add value to your property and might be worth doing in the long term. I suggest that you arrange a consultation with an engineer as soon as possible and explore your options.

Mary Frances Fahy is a solicitor and tax consultant and the principal of Fahy Neilan Solicitors, Ballaghaderreen, Co Roscommon

If you have a legal query for Mary Frances, please email it to farming@independent.ie or post it to Farming Independent, Independent House, Talbot St, Dublin 1. All queries will be treated with the utmost discretion