For a growing number of Islanders, the final days before the completion of the Transaction, the point at which removal vans are booked, mortgage funds are drawn down and a chain of buyers and sellers is holding its breath, has become the moment a new and unwelcome letter arrives.

The Infrastructure department has identified that surface water from the property is discharging into the foul sewer, and the sale will not be allowed to proceed cleanly unless separation works are agreed or carried out. The timing, in case after case, has been the same, not weeks out, but a day or two before the contract is due to pass before the Royal Court.

"You are three people deep in a chain, everyone's booked their removals, and then this drops," said one St Helier-based conveyancing lawyer, who asked not to be named while acting for clients in ongoing transactions. "There's no notice period to speak of. It's take it or leave it, days before completion."

A Victorian problem, a modern policy

Jersey's sewer network has always been a patchwork. Much of St Helier and the older parishes were built with combined sewers, a single pipe carrying both foul sewage and rainwater runoff, standard practice across Europe when the network was laid down in Victorian times. Separate systems, with foul and surface water kept in different pipes, only became the expected standard decades later.

The Drainage (Jersey) Law 2005 formalised that shift. Article 13 allows the Minister to reserve a public sewer for foul sewage only or surface water only, and Article 16(3) makes it an offence to discharge surface water into a foul-only sewer without consent, unless the discharge was already happening lawfully before 28 January 2005, in which case the property is protected, provided the volume hasn't increased since.

That grandfather clause is the crux of the problem now emerging. Many of the properties reportedly being stopped at the point of sale are exactly the kind the clause was written to protect: older houses connected to combined sewers that pre-date the 2005 Law by decades, sometimes by a century or more. If a property has always drained that way and nothing has changed, the Law does not appear to require separation at all, still less to make it a condition of sale.

No notice, no appeal

What makes the practice harder to defend is not just its timing but its apparent position outside the Law's own enforcement process.

The 2005 Law does give the Minister real powers to compel drainage works, but it wraps them in procedural protections. A formal requirement under Article 14 or 15 must be served in writing, must allow a minimum of 28 days, and must in any event give a period that is "reasonable in the circumstances" under Article 36. Crucially, anyone served with such a notice has a statutory right of appeal to the Royal Court under Article 42, to be lodged within 21 days.

None of that machinery appears to be in play when the instruction lands via conveyancing lawyers days before a contract passes. It isn't dressed up as a formal Article 14 or 15 notice, which means there is nothing on paper for a seller or buyer to actually appeal against. It functions, in practice, as informal leverage: agree to the works, or risk the sale.

For a government department, using its position in a time-critical, chain-dependent process to extract compliance it may not be able to compel through the Law's own front door is, at minimum, a due-process question. At worst, campaigners might argue, it's exactly the kind of executive overreach that Jersey's post-P.28/2019 accountability debates have repeatedly warned about: administrative power exercised without the transparency or challengeability that the legislature built into the statute.

"It cost me £5,000 for nothing"

One seller, who asked not to be named, described exactly this scenario playing out on their own sale. A price had been agreed with a buyer, dates were set, lawyers were exchanging contracts, and then the Infrastructure department intervened to say surface water from the property was discharging into the foul sewer and would need to be rectified.

The property was one of around 20 in a managed complex, meaning responsibility for any fix didn't rest with the seller alone, it required agreement from the residents' housing association. The issue itself was modest in engineering terms: about six downpipes from guttering had been feeding into the foul system, as they had done for the property for more than 30 years, and in parts of the complex for over a century. Rectifying the downpipes was costed at around £200, split across the 20 properties in the complex.

But the intervention gave the buyer's lawyers an opening. They tried to use the drainage issue to negotiate the sale price down by £10,000, a figure with no obvious relationship to the actual cost of the fix, which the seller refused to accept. What followed was a protracted back-and-forth that ended with a compromise the seller still regards as a bad outcome: £10,000 would be held in escrow for two years. If the housing association agreed to and carried out the works within that time, the cost would come out of the escrowed sum, with any balance going to the buyer. If the seller had had their way, none of this would have been agreed at all, in practice, it reduced the sale price by £10,000 regardless of whether any work happened.

What was ultimately agreed, against the seller's wishes, was that after two years, the escrowed money plus interest would be split 50/50 between buyer and seller if the works still hadn't been done.

They weren't. Two years on, the housing association never carried out the downpipe works. The seller had, in effect, given up £5,000 of their sale proceeds to resolve a drainage question that, on the property's own history of over 30 years' lawful discharge, and parts of the complex well over a century, appears to fall squarely within the Law's own grandfathering protection under Article 16(3)(b). No separation work was legally compelled. None was ultimately carried out. The only concrete outcome was a five-figure sum lost from a private sale.

"The interference into what was a lawful situation under the grandfathering caused huge disruption, and not a small amount of money, for no beneficial outcome," the seller said.

It's a case study that cuts to the heart of the wider pattern: not a Government department successfully forcing environmental improvement, but a last-minute intervention that destabilised a private transaction, handed one side leverage the Law didn't clearly give them, and delivered no drainage benefit at all.

The department's likely case

None of this is to say the department's underlying concern is manufactured. Jersey's ageing combined sewer network is under real strain. Government figures presented to the States Assembly's Environment, Housing and Infrastructure Panel have repeatedly flagged surface water ingress as a driver of pumping station failures, storm overflows and pressure on the new Bellozanne treatment works, which was designed around assumptions about how much rainwater should, and shouldn't, be entering the foul network. Officials would likely argue that every combined connection left unresolved adds to a genuine, worsening infrastructure problem, and that a sale is simply a practical trigger point at which an otherwise low-priority property finally gets attention.

That is a legitimate policy objective. It does not obviously justify enforcing it through last-minute pressure on transactions rather than through the notice-and-appeal process Parliament, in this case, the States Assembly, actually legislated for back in January 2005.

Where this leaves buyers and sellers

The Government of Jersey does not have a published policy document setting out the legal basis, criteria or notice period for pre-completion drainage checks at the time of writing. The newly appointed Minister for Infrastructure, Deputy Jonathan Renouf, has not yet addressed the practice publicly.

For those caught in the middle — chains of buyers and sellers who have already committed to removal dates, mortgage offers with expiry clauses, and in some cases onward purchases of their own, there is currently no clear, quick route to challenge an instruction that may not be legally required at all. A formal Article 42 appeal is only available if the department serves a formal notice; a complaint to a Complaints Board under the Administrative Decisions (Review) (Jersey) Law 1982, or a scrutiny referral to the States Assembly, are the realistic alternatives, neither of which moves fast enough to save a sale that's due to complete in 48 hours.

Until the Infrastructure department publishes a clear, lawful, properly-noticed policy, one that respects both the genuine capacity problems in Jersey's sewer network and the grandfather rights the Law itself grants to older properties, the question buyers, sellers and their lawyers are left asking is a simple one: is this good infrastructure management, or is it a department leaning on a legal grey area because it can? For at least one seller, the answer came at a cost of £5,000, for works that, two years on, still haven't been done.