UK: Tales From The River: Watercourses

Last Updated: 12 December 2013
Article by Michaela Mason

Summary and implications

This briefing provides an overview of ownership of, rights and responsibilities in relation to and development works to land adjoining, above or including watercourses.

Watercourses

What is a watercourse?

A watercourse is any surface or subterranean natural or artificial channel through which water flows, e.g. a beck, brook, culvert, ditch, mill stream or river.

What is an "ordinary" watercourse and who manages them?

An ordinary watercourse is every river, stream, ditch, drain, culvert, dyke, sewer (other than a public sewer) and passage, through which water flows, but which does not form part of a main river. Defra makes the decision as to which watercourses are main rivers in England, the Welsh Government doing so in Wales. In an internal drainage district area (about 10 per cent of the country), where the Environment Agency (EA) acts as the internal drainage board, it undertakes ordinary watercourse regulation. Where the EA does not act as the internal drainage board, the local internal drainage board undertakes ordinary watercourse regulation. In the remaining 90 per cent of the country, regulation is the responsibility of the lead local flood authority.

Whose water vole is it anyway? Establishing riparian ownership1

In the first instance, you will want to check (or have a friendly lawyer check), the property deeds to establish whether:

  • any boundary features are specifically stated to mark the extent of the property boundary; and/or
  • responsibility for the watercourse lies with a third party.

If there is nothing specific in the property deeds and unless there is something to establish contrary intention, the following presumptions apply (these may be rebutted):

Land ownership Presumption
Land next to a non-tidal watercourse You own the land up to the centre line of the bed of the watercourse contiguous with the land
Land where the non-tidal watercourse marks the boundary You own the land up to the centre line of the bed of the watercourse contiguous with the land
Land with a non-tidal watercourse running through or underneath it You own the stretch of watercourse that runs through your land
Land abutting tidal waters The boundary of the land lies at the top of the foreshore (being the area between the mean high and low water marks)
UK foreshore and beds of tidal waters These are in the ownership of the Crown

Messing about on the river: riparian owners' rights

Riparian rights are based on common law and have been defined as a result of legal cases over many years. These rights are not absolute and consents may be required from the relevant local council, internal drainage board or the Canal and River Trust.

Some examples and limitations in relation to riparian rights are set out below. Care should be taken if seeking to exercise any rights over tidal waters.

Water abstraction

An EA licence may be required if an owner intends to abstract water from a watercourse and take more than 4,400 gallons a day. In some cases, however, a licence is not required. Current EA guidance lists these exceptions as:

  • abstraction for any purpose of less than 199 gallons a day;
  • some land drainage operations;
  • the filling of vessels (ships or boats), e.g. with drinking or ballast water;
  • with the EA's consent, abstraction exceeding 20 cubic metres a day to test for the presence, quantity or quality of water, in underground strata;
  • water used for fire-fighting;
  • certain emergency abstractions; and
  • those abstractions operating under an exemption order or some other statutory exemption.

Discharge consents

When exercising a riparian right to discharge into any watercourses which are "controlled waters" (coastal waters, inland freshwaters and groundwaters), an owner may either need to apply for an environmental permit or register an exemption. As a general guide, the following general provisions will apply:

Discharge Requirement for permit or exemption
Clean surface run-off, e.g. from roads, pathways or hardstanding areas An environmental permit is not required
Small discharges of domestic effluent from septic tanks and package treatment plants outside groundwater source protection zone 1 (SPZ1) ( the EA have defined 2,000 source protection zones for groundwater sources used for public drinking water supply. SPZ1 is defined by a 50-day travel time from any point below the water table to the source) These may qualify for exemptions, if certain criteria and conditions are met
Discharge of small quantities of substances for scientific purposes These may qualify for exemptions, if certain criteria and conditions are met
Cutting or uprooting substantial amounts of vegetation in any inland fresh water which is not then removed from that water body These may qualify for exemptions, if certain criteria and conditions are met
All other releases or discharge of trade or sewage effluent An environmental permit is required

Fishing

The owner of a watercourse may have the right to fish it (assuming that such rights have not been sold or leased to third parties), using a legal method. The owner must have a rod licence, issued by the EA, if fishing for salmon, trout, freshwater fish or eels in England (except the River Tweed), Wales or the Border Esk and its tributaries in Scotland.

Flooding

A landowner has the right to protect the land through which a watercourse runs from flood and land erosion, but may require:

  • a flood defence consent from the EA and/or (if the watercourse is downstream of a tidal limit) a Marine Management Organisation licence (England) or Marine Consent Unit licence (Wales); and
  • agreement from the local risk management authority as to bank protection work.

Mooring

Ownership of land under a non-tidal river brings with it the right to moor over it. If the owner of the river bank does not own any part of the river bed, there is no right to moor. Care should be taken where the watercourse is subject to a public right of navigation; a boat licence may be required.

But... there are obligations

A riparian owner is subject to the following obligations:

  • an obligation to pass on the flow of water without obstruction, pollution or diversion. This includes an obligation to remove obstructions situated on or adjoining the property through which the watercourse runs, including those which did not originate on that property (e.g. where the obstruction flowed onto the property from upstream). Affected persons can bring an action in nuisance or trespass from which, subject to a de minimis principle, they may be entitled to:

    • a declaration of their rights;
    • an injunction to restrain the activity; and/or
    • damages;
  • an obligation to maintain the bed and banks of the watercourse and also the trees and shrubs growing on the banks. This applies even where the watercourse runs through a culvert. An owner could face an action in nuisance for any failure to maintain and repair the banks which results in a nuisance to neighbouring land (e.g. through flooding from the watercourse);
  • an obligation to keep any structures, e.g. culverts, clear of debris;
  • an obligation to notify the EA and relevant local authority before building or altering any structure that obstructs a watercourse, e.g. culverts;
  • an obligation to permit the free passage of fish. This means not causing any temporary or permanent obstruction in the watercourse which would restrict the free passage of fish; and
  • an obligation to accept flood flow (i.e. stream discharge during flooding) through the property through which the watercourse runs.

There is no common law obligation imposed on a landowner downstream to improve the drainage capacity of a watercourse. Therefore, if the capacity of the watercourse downstream proves inadequate (assuming that there are no obstructions) and a property floods, an owner is unlikely to have any action against the downstream owner. However, a downstream owner must not obstruct the watercourse and an upstream owner must not send water flow in an irregular way so as to cause damage.

Carrying out works at Frog Hall?2

Sections of Silver Birch Brook run through the Frog Hall Estate (FHE). Mr Frog wishes to (a) construct a number of bridges over Silver Birch Brook and (b) carry out works to create a mill dam on Otter River as part of improvements works at FHE. What should Mr Frog do now?

Both Silver Birch Brook and Otter River are ordinary watercourses. Accordingly, before carrying out any works, Mr Frog may need to apply to the relevant risk management authority (being the local authority or internal drainage board), for a consent under section 23 of the Land Drainage Act 1991 at least two months before he intends to start work (depending on the nature of the structures; Appendix 2 to the EA's Advice Note on Ordinary Watercourse Regulation has some diagrams for the types of bridges and dams that require consent). Work must not commence until formal consent has been received. Consent to a section 23 application does not remove the need to obtain any other consents required (e.g. planning permissions).

Frog Hall Estate abuts Fitzpatrick River. Mr Frog wants to build a wedding reception venue on the meadows abutting Fitzpatrick River. The meadows are frequently flooded and, as part of the construction project, Mr Frog needs to carry out riverbank reinforcement works to prevent flooding. What should Mr Frog do now? Fitzpatrick River is a main river. Under the Water Resources Act 1991 (amongst other legislation), Mr Frog would need to contact his local EA office to apply for consent to the works. Again, Mr Frog should not start the works until formal consent has been received and EA consent does not remove the need to obtain any other required consent (e.g. planning permission).

Footnotes

1. You may find it useful to look at Living on the Edge − published by the Environment Agency − which provides a comprehensive guide to the rights and responsibilities of riparian owners. Click here

2. You may find it useful to look at Appendix 2 to the EA's Advice Note on Ordinary Watercourse Regulation. Click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.