Water, Water Everywhere? Riparian Rights In Scotland

Climate change is transforming our weather in many ways. May 2026 saw temperatures nearing 35C in London, and even Charterhall in the Scottish Borders reached 25.5C. The month as a whole was the eighth warmest May on record for mean temperature in Scotland.

Heatwaves often reduce rainfall, and Spring 2026 did indeed see about 65% of average rainfall in England (with significant regional variations). In Scotland, however, this Spring has been wetter than usual. Rainfall in the country was 19% above average, largely driven by a very significant rainfall in the north of Scotland. This is a stark contrast to 2025, when Scotland experiencing the driest start to the year since the 1960s. The last nationwide hosepipe ban was in 1995, but it might not be thirty years until the next one.

In short, Scotland would be unwise to take its water resource for granted. Scottish Water recognises this: its Strategic Plan, issued in 2025, seeks to ensure a sustainable future for Scotland’s water and has a significant focus on conservation and ongoing management. Similarly, the Scottish Environment Protection Agency acknowledges the need to deal with droughts and dry spells quickly and proactively. It now updates its water scarcity report on a weekly basis – regular ongoing monitoring of water levels and abstraction rates in the public water systems – and helps to ensure early intervention when necessary.

Private water rights are a factor in all of this. Known in Scotland as ‘riparian rights’, they form a complex and, at times, confusing area of law that is becoming increasingly important for developers and landowners alike. It is also an area in which there is likely to be possible future reform.

This article gives a brief overview.

What are riparian rights?

Riparian rights are the rights held by the owners of land over which a river flows. They date back to the law of ancient Rome but are just as relevant in Scotland today. With 85% of the UK’s hydroelectric energy resource located in Scotland, and smaller hydro power schemes becoming more cost-effective to run, riparian rights have become a renewed focus of attention for both developers and landowners.

Who owns riparian rights?

Running water is as ownerless as sunlight and air. But the riparian owner is able to make use of the running water as it passes through the land in their ownership. As such, who owns the riparian rights depends on who owns the land over which the river runs.

If the river runs solely through a person’s land, that person will own the rights. If the river then runs through another’s land and on through yet another’s, each owner will have riparian rights in respect of their successive part of the river up to the boundary in their title. There is a legal presumption that where the boundary between two parcels of land is a river, the owner of each parcel will own the alveus (riverbed) up to the mid-point of the river. This presumption is, however, rebuttable, and it may well be that the legal title provides that the whole of the riverbed is within the title.

In nature, the course of the river may alter. The scouring effect of water might erode one side of a riverbank and lead to deposits of silt on other parts of the river. Where a title is bound by a river this can lead to changes in the boundary of the title. In turn, this may affect ownership of the riparian rights. There can therefore be a variety of owners of riparian rights in one river and a variety of interests that may be affected by interference, such as abstraction of water.

What are the basic riparian rights?

The primary concept is that a riparian owner has a right of common interest in the river. This means that the lower or downstream owner is entitled to receive the natural flow of the river.

Case law talks about the riparian owner being entitled to the natural flow of water “undiminished in quantity, unpolluted in quality, and unaffected in force and natural direction and current, except in so far as the primary uses of it may legitimately operate upon it within the lands of the upper heritor”. Primary use has been held to be that generally used for a domestic purpose, but this includes use for animals, including cattle.

Opposite proprietors have the right to oppose any use of the water other than for “domestic” use. There are competing cases on whether a riparian owner can remove water for secondary purposes like agriculture or industry.

Some cases suggest a very extreme position that no consumption for secondary purposes is permitted at all, while other cases suggest that a riparian owner can only object to water being used for secondary purposes if the use causes a material disturbance. It is considered that the requirement for a material disturbance reflects the current law in Scotland. What is material is always going to be a question of fact and degree, depending on the volume of water in the river and how much water is being removed.

Hydro schemes and riparian rights

It is clear from the case law that at common law the abstraction of water on the scale required for a hydro scheme would likely breach the rights of downstream and opposite proprietors. The rights could also be breached if the flow of the stream or river was affected.

The proprietor of a hydro scheme has a common interest obligation not to interfere with the natural flow of the river. It has been held that abstraction for use for power is permissible only if the water is returned to the stream prior to reaching the downstream proprietor.

The appropriate remedy for a breach of riparian rights will most likely be interdict (otherwise known as injunction). That may have serious consequences for the operator. Not only will planning permission and licences from the Scottish Environment Protection Agency be required for hydro schemes, but consent of riparian owners may also be needed.

Possible reform

A number of jurisdictions, including South Africa and Norway, have reformed their rules on private water rights over recent years. There have also been some significant court cases in Australia and the United States regarding private rights over water supply.

In Scotland in 2014, the Land Reform Review Group identified private water rights as an area which should be considered for possible legal reform. Any process of reform in this area will require discussion with landowners and other stakeholders. With the focus on a green recovery and the advent of not only small hydro schemes but “micro” and “pico” schemes, the message at present is very much “watch this space”.

This is Scotland… we have too much water, don’t we?

While many of us joke about the Scottish summer being a one-day event at best, water supply problems can arise between June and August when the weather tends to be warmer and drier. And although Scotland is generally considered to be a “water-rich” nation, we are also a significant water consumer: the average individual in Scotland uses around 40% more water than their counterparts in Yorkshire. Water is a finite resource, even in Scotland, and despite our high rainfall only around 1% of that resource is captured in reservoirs.

Drier spells can cause disputes to arise between landowners competing for limited water resources. How then does the law seek to tackle such issues in Scotland?

The industrial revolution brought a change in water usage and, consequently, introduced pressure on this finite resource. Inevitably, this led to disputes between owners, especially where water-intensive industry was concerned. The majority of the riparian rights Scottish case law that we rely on today dates back to the 19th century.

Scots law implies a right of common interest in the river to riparian owners, which creates reciprocal rights and duties. There is common interest in maintaining the natural flow of the river. Scots law does also appreciate that water by its very nature will be consumed, with a distinction drawn between primary purposes and secondary purposes.

Where water is consumed for primary purposes, the upstream owner has the full use of the water for primary use and there is no limit as to how much water may be consumed for primary purposes, even if that results in less water or indeed no water for the other landowners downstream. There is no obligation on the landowner to restrict their use to ensure supply downstream. Similarly, the owner downstream cannot complain if there is increased use for primary purposes because there are more cattle or more individuals living in a property.

The right to use water for primary purposes is, however, not without restriction. Surplus water must be returned to the river; and water must be consumed on the river or on land immediately adjacent, and cannot be removed for consumption on land elsewhere unless there are other legal rights to do so. The legal onus (or burden of proof) is on the party removing the water to show that they have returned any surplus water that was not consumed.

Use for secondary purposes is more complicated, and might constitute a breach of common interest in the river if the use is material. This may result in a landowner seeking an interdict (injunction) to prevent such use.

The long-term forecast

Looking ahead, climate change will probably continue to make the weather more extreme and unpredictable. We also expect to see increased demand for water, especially due to the rapid growth of AI data centres, which require large amounts of water to cool servers containing high-density chips. It is therefore likely that new disputes around riparian rights will in time create new case law.

If you would like to have a more detailed discussion about any of the issues in this article, please contact the Rural Disputes team.