Riparian Owners: What are your rights and responsibilities?
River views or a stream running through the garden may present a unique property feature, but homeowners should consider whether they are a riparian owner. This ancient concept brings with it both common law rights and liabilities which will affect any landowner whose property adjoins or contains a natural watercourse.
What does riparian ownership mean?
Riparian means relating to the bank of a watercourse, from ripa meaning a bank. A watercourse is any flow of water in a natural or artificial channel, such as a river, stream, ditch or culvert (an underground covered channel or pipe). Note that a flow of water is generally required for these purposes and so, for example, an enclosed garden pond is not a watercourse. The meaning of the term ‘watercourse’ has been judicially defined in several cases which confirm that periods of non-flow are not necessarily incompatible with there being a natural watercourse but, on the other hand, a dry channel which is only filled during temporary flooding is not a watercourse giving rise to riparian rights.
You will normally own any stretch of watercourse that runs on or underneath your land and own part of any watercourse that runs along the boundary of your land, up to its centre although, perhaps surprisingly, you do not actually own the water. Riparian rights and run with the land, passing from landowner to landowner when the land is transferred.
What are riparian rights?
Riparian owners benefit from a range of common law rights, for example the right of flow, meaning the entitlement to any water that flows naturally onto or under their land from their neighbour’s land. You must let water flow naturally, but you can extract up to 20 cubic metres (20,000 litres) per day for domestic or agricultural use.
Riparian owners can also use the water for certain purposes connected to the land adjoining the watercourse, such as fishing, mooring and discharge into the watercourse (subject to the rights of other riparian owners). You do need to check the position though as these rights can be sold or leased separately, this often happens with fishing rights, and you should check your deeds carefully.
Riparian fishing rights
If you do benefit from fishing rights, you will still need a licence when fishing for salmon, trout, freshwater fish, smelt or eel with a rod and line in England and Wales. You can be fined up to £2,500 if you cannot show a valid rod fishing licence when asked, licences for 1-day, 8-days or 12-month are available to purchase online.
A number of responsibilities come with ownership of a watercourse and you may be subject to penalties if you fail to comply. The water must be allowed to flow naturally and this means that you may have to remove blockages, fallen trees or overhanging branches from your watercourse, or cut back trees and shrubs on the bank. You are responsible for reporting incidents, such as flooding, blockages, pollution, unusual changes in the flow of water and collapsed or badly damaged banks, to the Environment Agency.
You must not pollute the water and you need permission from the Environment Agency before you can use herbicides (weed killers) to control weeds and unwanted vegetation in or close to a watercourse. This is to make sure that the proposed use of the herbicide could not damage or pollute the aquatic environment (including both surface water and groundwater). There are also duties to protect wildlife and so you must not you must not disturb certain species or their habitats, including the bed and the banks.
You have the right to protect your property from flooding and erosion, but you must get permission to do work in or around a watercourse. It is your responsibility to check which permissions and licences you need for any works such as changing the banks or removing material from the bed.
In addition, a structure or feature on your land that helps manage the risk of flooding or coastal erosion, may have been designated as a flood risk management asset. Assets can be any natural or man-made structure or feature, such as walls, buildings, earth embankments or raised areas of land. This should be apparent when you purchase your property as the designated structure or feature will be registered as a ‘local land charge’ and so will appear on the local search result. You may need consent from the responsible authority if you want to alter, remove or replace a designated asset.
You should always leave a development-free edge on the banks next to a watercourse. This allows for easy access to the watercourse in case any maintenance or inspection is required. In some areas local byelaws exist which explain what you can and cannot do within certain distances of a watercourse.
The obligations on a riparian owner can be costly and if you have flood defences on your property, you may be responsible for their maintenance and upkeep. When a stretch of the River Arun’s boundary wall collapsed at Arundel in 2016, certain residents faced eye-watering bill for repair of the river wall (of around £4m) despite not realising that the wall fell within their title. The local MP highlighted the issue to the Environment Secretary and public funding was secured for the necessary repairs together with a contribution from The River Road residents nearly £300,000 of this through insurance payouts and personal contributions, and a donation from Arundel Town Council following fundraising by local residents. This example emphasises the need for buyers to pay particular attention to any waterway included in or adjoining the boundary of their future home and take advice on what that might mean in terms of future costs and liabilities.