In Focus: Riparian Rights

As Britain’s rivers and streams have been so integral to the country’s economic development, the laws that have developed around them – called riparian rights – are complicated and can be difficult to understand. To help clear those muddied waters, we give an overview of the rights and responsibilities of landowners who have flowing water on or adjoining their properties.

Riparian rights refers to the collection of legal interests enjoyed by the owner of land on the bank of a natural watercourse. The rights of a riparian owner do not necessarily depend on ownership of the soil under a watercourse but may arise simply though ownership of land abutting the watercourse.

The Water Resources Act 1991 states that ‘watercourse’ includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows.

Generally, a dry ditch which only occasionally carries water will not be a watercourse. Equally, an artificial watercourse such as a canal needs to be distinguished from a natural watercourse such as a stream or river, and the normal riparian principles will not apply.

Normally, a landowner owns any stretch of a watercourse that runs on or alongside their land. If it constitutes the boundary of their land, the landowner will normally own up to the centre of the watercourse, with the adjacent landowner owning from the centre towards their land.

However, this doesn’t mean you can do what you please with a stretch of water you own. Riparian owners need permission for certain activities from regulators such as a local authority (LA), internal drainage board (IDB) or the Environment Agency (EA) and Natural Resources Wales (NRW), which are the lead agencies in England and Wales. Collectively, these bodies are called risk management authorities and they work together to manage flood risks, promote the conservation of the river networks, wetlands, and the wildlife that lives there.

Riparian owners have common law rights, which will include:

• The presumption that a landowner owns the bed of a watercourse up to the centre of it, unless the bed is owned by someone else. If there is any doubt about this, check the property deeds as these may detail whether the boundaries of the property are marked by the centre of the watercourse or a wall/hedge/fence adjoining it. In the case of a registered title, it is almost invariably the Land Registry’s practice to show the boundary (and therefore the red line) running along the bank of the watercourse rather than the mid-point of the stream. The riparian owner then relies on the ‘ad medium filum’ presumption as the basis of their owning to the mid-point of the stream. But, care needs to be taken because often the bed of the stream may have been expressly reserved to a previous owner (whose title may not be registered) or the bed having been sold off to a fishing club.
• The presumption that a landowner owns any stretch of natural (non-tidal) watercourse that runs through or underneath their land (any artificial watercourse may be the responsibility of a third party).
• Water flow—the entitlement to any water that flows onto or under their land from their neighbour’s land in its natural quantity and quality. Water should not be abstracted or polluted without required permission.
• Flood protection—landowners have the right to protect their property from flooding, and from erosion; providing such plans/measures are approved by the risk management authority prior to installation.

Fishing—riparian owners have the right to fish in their section of the watercourse to the mid-point of the stream using a legal method with a valid EA or NRW rod licence. However, fishing rights can often be reserved to a previous owner or have been sold or leased.

Alongside these rights come a significant number of responsibilities. These include:

• Reporting an incident. This includes flooding, blockages that could cause flooding to main rivers, pollution, unusual changes in the flow of water or collapsing or badly damaged banks.
• Letting water flow through their land without any obstruction, pollution or diversion which affects the rights of others. This may involve removing fallen trees or overhanging branches from the watercourse, or cutting back trees or shrubs on the bank, if they interfere with public navigation or reduce the flow or cause flooding to another landowner’s property.
• Accepting flood flow through your land, even if this is caused by inadequate capacity downstream. However, there is no duty to improve the drainage capacity of a watercourse.
• Leaving a development-free edge on the banks next to the watercourse. It will be necessary to liaise with the relevant authority as to the extent of this.
• Allowing easy access to the watercourse for maintenance and inspection as required. Byelaws may exist in local areas—they will specify what you can and cannot do within particular distances of the watercourse.
• Keeping any privately-owned structures such as culverts, trash screens, weirs and mill gates clear of debris. Maintenance of flood defences, such as walls and embankments, which may be vital for flood protection, should be discussed with the risk management authority.
• Not using riverbanks to dispose of garden or other waste.
• Not to pollute, include wastewater or chemical disposal or anything that will pollute the riverbank or water.
• Not causing obstructions, temporary or permanent, in the watercourse that would stop fish passing through.

A watercourse may run into a culvert (a watercourse enclosed in a structure such as a drain or a pipe), and these can attract the same responsibilities as an open watercourse. In many cases, a riparian owner can own a culvert from the point where it enters their land to the point where it leaves, in which case they will be responsible for its maintenance as well as keeping it clear. But, in certain cases, the culvert may be owned by an internal drainage board or a highway authority or Network Rail or they may even assume responsibility for its upkeep, so, if a culvert runs through your property, it is a good idea to consult the relevant authority to discuss the extent of your responsibilities.

Depending on the particular circumstances, riparian responsibilities can potentially require an owner to undertake the upkeep of the bank of a watercourse in order to avoid possible legal action. Everything will turn on the specific circumstances of any given situation and the risk of flooding to third-party owned property and professional advice will need to be taken about this. Any works must be agreed by the risk management authority prior to work beginning.

The risk management authority has the right to designate a feature on land as a flood risk management asset and will give a landowner 28 days’ notice of this designation. Once this period has elapsed, the assets cannot be altered, removed, or replaced without prior consent. Landowners do however have the right to challenge this designation if they feel it has been applied unfairly.

Riparian owners, especially farmers, also need to consider land management and use best practice techniques to prevent the run-off of topsoil into a watercourse which could cause a potential pollution incident and increase the risk of flooding.

Not doing this could mean farmers breach cross-compliance statutory management requirements, and that could threaten their Single Farm Payments or payments under the Rural Development Scheme. Therefore, it is essential farmers utilise best land management practice at all times across all of their land including watercourses.

It is essential to check whether or not any proposed development to a watercourse, such as flood defences or drainage systems, requires planning permission. To do this, the landowner must submit their plans to both the EA and the relevant council. Together, they will consider the impact of the development in terms of environmental issues, enhanced flood risk, wildlife conservation, fisheries and any reshaping of the watercourse or surrounding landscape and make a decision in regard to these points.

If a scheme has particular environmental impacts, an environmental statement will need to be submitted along with a planning application. Although the final decision rests with the local planning authority, the risk management bodies will be consulted as part of the decision-making process.

As well as planning applications, there are a number of activities riparian owners need to obtain consents or licences for before they can be carried out. The most common of these are water abstraction and discharge.

Riparian owners can abstract a maximum of 20 cubic metres per day of water for their domestic purposes or for agricultural use, excluding spray irrigation, from a watercourse without a licence. Other types of abstraction, or abstraction of more than 20 cubic metres per day, will require a licence from the EA.

Discharging wastewater, trade or sewage effluent into controlled water requires an exemption or an environmental permit from the EA in England and from NRW in Wales.

Landowners may need permission for works in or near a watercourse from a conservation body, as well as the risk management authority, if the proposed works affect a protected site such as Site of Special Scientific Interest or an area that supports a legally protected species. These can be obtained through Natural England or NRW.

Tidal rivers are treated differently in that the bed of the river will generally be owned by the Crown and tidal rivers have public rights of navigation and fishing.

Riparian rights are a complex area and making any changes or carrying out any development on or near a watercourse that runs through your land needs careful checking before you proceed.

Riparian rights arise naturally by virtue of a landowner owning land abutting on to the bank of a watercourse. This explains why it is likely nothing will be recorded in the title deeds about them. They are not easements, to be granted or reserved, but are simply part of the fee simple of the land. Having said that, the title to the riverbed should always be investigated to see whether it has at some time in the past been conveyed into separate ownership.

You need to think in terms of who owns the bed of the river rather than the water running over it which has no owner. The title deeds should be investigated, particularly any pre-registration title deeds if these have been retained (which is always a sensible thing to do). If no evidence of ownership is revealed then the owners on each side of the river are likely to be presumed to own to the mid-point of it by virtue of the ad medium filum aquae presumption. Obviously, if the same owner owns the land on both banks, the person will be presumed to own the whole of the riverbed.

Generally, not in that the ownership of the bed of a lake is determined in accordance with normal rules of title. A lake entirely within the boundaries of one piece of land will pass with it without express reference, and if the lake is in different ownership, then the boundary will be the normal edge of the lake unless the relevant conveyance sets precise boundaries. Where there is a lake bounded by a number of separate proprietors on its edge, the titles may be such as to show that one has the exclusive title to the lake or the lake is sub-divided between various owners.

If you’re a CLA member and would like to speak to one of our experts, get in touch with your regional office or call the national team on 0207 235 0511.