Riparian Rights and Responsibilities

For many landowners whose properties border a river or stream, the term “Riparian Rights” is not unfamiliar. However, what exactly does this term entail when put into practical context?  In this article, Mike Bracegirdle examines the intricacies of Riparian Rights, shedding light on the rights and responsibilities that come hand-in-hand with owning land adjacent to a watercourse.

What are the types of riparian?

Riparian zones are ecologically diverse areas along water bodies like rivers and streams. Several types of riparian zones can be found:

• Natural Riparian Zones: These are relatively undisturbed areas with native vegetation, crucial for maintaining water quality and supporting local wildlife.
• Urban Riparian Zones: Found in cities and towns, these areas often experience human impacts like pollution and habitat fragmentation. Conservation efforts focus on mitigating these effects.
• Agricultural Riparian Zones: Located near farmland, these areas may face issues like pesticide runoff. Conservation measures aim to balance agriculture with environmental protection.
• Woodland Riparian Zones: Featuring trees and shrubs, these riparian areas provide important habitat for numerous species, contributing to biodiversity conservation.

Each type of riparian zone plays a unique role in supporting the health of waterways and ecosystems.

What are riparian rights?

Riparian rights are the legal privileges and responsibilities associated with owning land that borders a watercourse, such as a river, stream, or lake. In England, these rights have deep historical roots, dating back to the medieval era. The principle underlying riparian rights is that landowners have certain entitlements and obligations concerning the water on or adjacent to their property.

What are the key riparian rights?

At its core, being a riparian landowner means that you automatically inherit certain rights and responsibilities that have been established in common law over time.

• Flow of water: You are entitled to the natural flow of the watercourse, meaning that upstream landowners cannot divert water in a way that unreasonably interferes with the flow downstream.
• Lateral Support: If you have a watercourse on your property, you have the right to receive lateral support from the adjoining lands to prevent the banks from collapsing into the water.
• Protection from Erosion and Flooding: You possess the right to safeguard your property from both erosion caused by the watercourse and flooding, ensuring the security of your land.
• Right of Access: You have the right to access and use the water on your property for domestic and agricultural purposes. This includes the right to fish, boat, and water livestock within reasonable limits. However, note the following:
  • Fishing is subject to possessing the requisite licences.
  • Fishing rights are often reserved when selling land adjoining a river. Such sales typically come with additional rights, such as the right to access the riverbank and the right to trim overhanging branches from nearby trees.
  • If your water extraction exceeds 20m3 per day, you will need to obtain a licence from the Environmental Agency.
• Accretion and Avulsion: In cases where the watercourse’s course naturally changes over time (accretion) or abruptly shifts (avulsion), you may gain or lose land accordingly.

Note that riparian landowners may exist both upstream and downstream of the watercourse, and occasionally on the opposite bank. In many cases, landowners are presumed to own only half of the riverbed.

It is also important to note that when dealing with canals, distinct regulations may apply, as the Canals and River Trust often registers the Trust title to the canal banks.

What is the historical context behind riparian rights?

The historical development of riparian rights can be traced back to the idea of land ownership and the rights of landowners to enjoy and exploit their land as they saw fit. However, this notion had to be balanced with the recognition that water is a shared and vital resource. Hence, a legal framework emerged to regulate the use of water by riparian landowners.

Which riparian responsibilities must be upheld?

Being a riparian landowner is not just about reaping benefits; it also entails a set of responsibilities:

• Facilitating Fish Passage: It is your responsibility to allow fish to pass through the watercourse freely, without any obstructions. This is vital for maintaining the ecological balance of the river or stream.
• Water Quality: You have a duty not to pollute the watercourse on your property, as it may affect downstream landowners and the environment.
• Maintenance: Regularly maintaining the watercourse is incumbent upon you. Keeping it free from obstructions, debris, and any factors that might pose a flood risk to downstream.
• Diversions and Pollutions: You must not divert the water from its natural course or pollute it in any way. This responsibility helps maintain the overall health of the watercourse.

What regulatory and environmental concerns should you consider?

While the core principles of riparian rights remain intact, modern developments have introduced complexities. Environmental protection legislation and changing land use patterns have led to a more balanced approach to water rights.

In recent years, the emphasis has shifted towards safeguarding the environment and promoting sustainable water use. Regulations, such as the Water Resources Act 1991 and the Environmental Permitting (England and Wales) Regulations 2016, set out strict guidelines for activities affecting watercourses. These regulations ensure that riparian landowners exercise their rights responsibly and in harmony with the broader ecosystem.

How close to a river can I build?

Regulations regarding how close you can build to a river vary based on factors like flood risk, environmental protection, and local planning authorities. The Environment Agency and local councils enforce strict guidelines to prevent flooding, safeguard the environment, and protect habitats.

Typically, building close to a river may require special permits, flood risk assessments, and adherence to setback distances specified in local planning policies. It’s essential to consult with your local planning authority and seek professional advice to ensure compliance with specific rules and requirements in your area before undertaking any construction near a river.

Do owners of a riverbank have rights over the river water?

Owners of riverbanks do not typically have exclusive rights over the river water itself. Instead, water rights are governed by complex legal principles. Riparian landowners have certain limited rights and responsibilities related to the river, including the right to access water for domestic purposes and to maintain the banks. However, these rights are subject to restrictions to prevent ecological harm, protect navigation, and manage flood risk. Ownership of the riverbed and the water itself is often vested in public or government entities, emphasising shared stewardship over river resources and public interest in their proper management.

Who owns the bank of a river?

Generally, the owner of the land adjacent to the river (the riparian landowner) owns the bank of the river up to the “ordinary high-water mark,” which is the point up to which the river typically rises during normal conditions. Beyond that point, the riverbed is often considered public property, and ownership may vary depending on historical factors and specific legal arrangements.

It’s essential to consult local authorities and legal experts for precise details, as regulations can vary by region and river.

Who is responsible for keeping rivers clear?

Multiple entities share responsibility for keeping rivers clear and managing their water quality. The Environment Agency (EA) and, in some areas, the Scottish Environment Protection Agency (SEPA) are primary regulators overseeing river health and pollution control.

Local authorities may also play a role in managing smaller watercourses. Riparian landowners have responsibilities for maintaining riverbanks and preventing obstructions.

Additionally, there are community and environmental groups actively involved in river conservation and clean-up efforts. Collaboration between these entities is essential to ensure the protection and preservation of the UK’s rivers, which are vital for both ecosystems and human communities.

What is the riparian owner Land Drainage Act 1991?

The Land Drainage Act 1991 is a piece of legislation that outlines the responsibilities and powers of riparian landowners concerning watercourse maintenance. Under this act, riparian landowners, those who own land adjoining watercourses, have a legal duty to maintain the flow of water within the watercourse and prevent flooding on their land.

They are also responsible for obtaining consent from the relevant authority for any alterations or works on the watercourse. The act aims to ensure proper management of watercourses to prevent flooding and maintain the ecological health of rivers and streams, emphasising the shared responsibility of riparian landowners in this regard.

How can Butcher & Barlow help?

Navigating the realm of Riparian Rights and Responsibilities can be intricate and at times even perplexing. These complexities often lead to confusion among landowners, land agents, and legal professionals, as some of these rights and responsibilities may appear contradictory.

Yet understanding your riparian rights and responsibilities is paramount when you own land adjoining a river or stream. As a starting point it is essential to understand your land boundaries and our Agriculture and Rural affairs team can assist by carrying out a review of the title to your property, and if necessary, consulting historical records and maps to determine the extent of your rights and liabilities.

Disputes over riparian rights can arise, particularly when there are competing interests along a watercourse. Our Dispute Resolution team will be able to guide you to a reasonable solution that balances the rights of all riparian landowners.

For further help and advice, contact the team on 01606 344309.

 

This was first published in the October edition of the Farmart magazine.