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.
