Riparian Ownership – What Does It Mean?

What is riparian ownership?

If you own land next to a watercourse then you are a riparian landowner.

According to Environment Agency guidance, a watercourse can be any stream of water flowing in a defined channel or through an underground pipe or culvert. The watercourse can be wide or narrow, natural or artificial, and includes channels which may be dry for long periods of time. Larger streams and rivers but also smaller streams of significance in a particular river basin are designated as ‘main rivers’ by the government, with the rest being ‘ordinary watercourses’.

In the case of ditches, streams and rivers, it is the landowners on each side of the watercourse who are responsible for the maintenance of the watercourse itself and the flow within it.  It is not just landowners who have a watercourse flowing across their land who are affected, but also those with land where the watercourse forms a boundary with another landowner. Their rights and responsibilities also apply where a watercourse passes immediately adjacent to a boundary, even if it is outside the landowners’ ownership, as the flow of the watercourse has the potential to affect this land.

If an ‘ordinary watercourse’ or a ‘main river’ runs through land or along the boundary of a property, the landowner is likely to be the riparian owner or joint riparian owner, unless the watercourse is known to be owned by someone else. If the land is leased the landlord and tenant should agree who will manage these rights and responsibilities.

If the land on the other side of the watercourse is not owned by the same landowner, they are presumed to be the joint riparian owner together with the landowner on the other side. In the case of joint riparian ownership, each party is presumed to own up to the centre line of the watercourse and therefore is responsible up to this point.

Who regulates riparian owners?

Riparian owners may need permission for some activities from a regulator such as a local authority (LA), internal drainage board (IDB) or the Environment Agency (EA). These are known collectively as risk management authorities.

The Association of Drainage Authorities (ADA)  – Homepage – Association of Drainage Authorities – provides guidance on watercourses and their management for riparian owners in England.

The EA in England protects the river environment and manages flood risk as part of its role. It promotes the conservation of the river networks, wetlands and the wildlife that lives there. This means some of its duties and powers affect riparian owners. The riparian owner will be responsible for the physical maintenance of any watercourse classified as a ‘main river’. For these ‘main rivers’, the EA has additional responsibilities to maintain water flow and carry out flood defence works. In some instances, the EA will also assess the environmental impacts of proposals for any works/activities in or adjacent to main rivers, leading to the requirement of a flood risk permit.  The EA has the power to make byelaws and serve notice if a watercourse has not been maintained and is causing problems, such as increasing flood risk.

The EA has produced national strategies for flood and coastal erosion risk management. This includes the development of local flood risk management strategies by lead local flood authorities such as county and unitary councils. They have powers to manage flood risk from ordinary watercourses, whereas in areas known as internal drainage districts, the risk management authority is the local drainage board for the area and they have powers over ordinary watercourses instead of the local authority. Local authorities and internal drainage boards may also have made additional regulations and byelaws that can affect what can and cannot be done on an ordinary watercourse. The local authority or internal drainage board need to approve any works that are likely to have an impact on an ‘ordinary watercourse’.

Guidance produced by the EA explains the riparian owners’ rights and responsibilities and the roles of the risk management authorities and other organisations – Owning a watercourse – GOV.UK.

Riparian owners’ rights

Under the common law, the owner of land forming the bank of a natural watercourse has the benefit of the following:

• the presumption that a landowner owns the land up to the centre of the watercourse, unless owned by someone else. (Property Deeds may show whether the boundaries of the property are marked by the watercourse or a wall/hedge/fence, although often this is not clear)
• the presumption that a landowner owns any stretch of natural watercourse that runs through or underneath their land. (Any artificial watercourse may be the responsibility of a third party)
• water flow—water should be allowed to flow onto or under land in its natural quantity and quality. Water should not be abstracted without required permission or polluted
• 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—landowners have the right to fish in their section of the watercourse using a legal method with a valid EA rod licence. Fishing rights can be sold or leased

Riparian owners’ responsibilities

Riparian landowners have common law duties to other riparian landowners, the community and the environment. Their responsibilities include:

• reporting any incident to the EA including:
  • flooding from main rivers
  • blockages that could cause flooding
  • pollution
  • unusual changes in the flow of water
  • collapsed or badly damaged banks
  • any work or activity on or near a watercourse that may not have permission
• letting water flow through their land naturally without any obstruction or diversion which affects the rights of others
• prevent pollution
• protect wildlife which includes not disturbing certain species or their habitats, birds or their nests, and the spawning or eggs of certain fish
• accepting flood flow through their land, even if these are caused by inadequate capacity downstream. There is no duty to improve the drainage capacity of a watercourse
• keeping the banks clear of anything that could cause an obstruction and increase flood risk, either on their land or downstream if it is washed away
• maintaining watercourse beds and banks as well as any trees and shrubs growing and clearing any litter and animal carcasses from the channel and banks. Certain aspects of these works may require previous approval from the risk management authority
• protecting their property from water that seeps through natural or artificial banks and paying for repairs to any damaged flood defences if required by the risk management authority
• leaving a development-free edge on the banks next to the watercourse
• 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 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 causing obstructions, temporary or permanent, that would stop fish passing through

In addition to these common law duties there are additional statutory duties which can include:

• a legal obligation to notify the regulators and the relevant risk management authority, if the riparian owner would like to build or alter a structure that acts as an obstruction to a watercourse
• helping to protect water quality
• controlling invasive alien species, such as Japanese knotweed, along the river bank
• requesting consent from the regulators to alter, remove or replace a designated structure or feature
• ensuring any work does not either damage wildlife or improves the habitat.

How do these responsibilities affect landowners?

Riparian responsibilities can require an owner to undertake certain works or maintenance in the upkeep of the watercourse in order to avoid potential common law liabilities and in respect of potential statutory liabilities. Such requirements could include:

• constructing and managing flood defences where appropriate
• maintaining watercourses and flood defences where appropriate
• the risk management authority can designate a feature on land as a flood risk management asset, providing at least 28 days’ notice. They will give details of the feature and explanation of the designation. Such assets cannot be altered, removed or replaced without prior consent. Landowners do however have the right to challenge the designation
• flood risk permits/ordinary watercourse consents: any plans to work on or near a watercourse must be submitted to and discussed with the relevant risk management authority. Works cannot be carried out until plans are approved and consent is given
• a riparian owner is responsible for protecting the watercourse banks from erosion, if possible using soft engineering techniques. Any work must be agreed by the risk management authority
• a riparian owner (especially farmers) should also consider land management and use best practice techniques; preventing the run-off of topsoil into a watercourse which could cause a potential pollution incident and increase the risk of flooding.
• ensuring the chemical or biological quality of a watercourse is not harmed
• a riparian owner must make an application to use herbicides within one metre from the top of the bank of a watercourse

Other things to consider:

• Planning – any proposed works on a watercourse may require planning permission to be submitted to the local planning authority
• Abstraction licences – are required from the regulator if a landowner wishes to abstract water from or impound water on a watercourse
• Discharge consents – an environmental permit or exemption may be required from the EA to release or discharge any water, trade or sewage effluent to controlled waters
• Insurance – landowners should seek advice on obtaining insurance to cover instances of flood defence breach or culvert damage, otherwise they may be liable as a riparian owner for the costs of repair. A standard insurer may not pay out for a claim if the flooding to a property is a result of the landowner not maintaining the defences or culvert on their land
• Nature and biodiversity protection – 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 site protected by law, or an area that supports a protected species. For this, landowners would need to contact Natural England
• Tidal rivers – tidal reaches of rivers (where the sea flows in and out of the mouth of the river) have public rights for navigation. Harbour authorities may have some control in these reaches. If the watercourse running through or adjacent to your land is affected by the tide, a marine licence from the marine management organisation