Know your (riparian) rights!

If your land abuts a natural watercourse or natural water runs through or under your land, you are a “riparian owner”. This article sets out what this means and you may be surprised by the extent of rights and duties that affect you. 

First of all, unless the title documents to your land indicate otherwise, riparian owners are likely to benefit from a presumption that you own the land to the centre line of the watercourse.

As a riparian landowner, you have certain rights, which most individuals are not aware of. These include, but are not limited to the following:

• The right to the flow of water without obstruction and free of pollution;
• The right to protect your land against flooding and erosion (subject to obtaining the necessary approvals/consent from the relevant authorities);
• The right to fish on the water (subject to obtaining the necessary license);
• The right to take a maximum of 20 cubic metres of water a day for domestic and agricultural purposes.

Although being a riparian landowner comes with plenty of benefits, there are also some responsibilities you need to be aware of. These include, but are not limited to the following: 

• You must not pollute the water
• You must allow the water to flow naturally
• You must not increase the risk of flooding and erosion for neighbouring landowners;
• You must maintain the bed and banks, and any trees and vegetation on the banks.

What counts as a natural watercourse?

It is important to determine correctly whether the watercourse gives rise to riparian rights. Sometimes it is easy to determine; for instance, if there is a river or stream running through your land or next to it. However, some are not so easy to determine, such as culverted watercourses and pipes. These are watercourses that have been enclosed underground.

The case of Bernel Ltd v Canal and River Trust [2021] EWHC 16 (CH) sheds some light on what amounts to a natural watercourse. The claimant, Bernel Ltd, developer, purchased a parcel of land and needed to drain surface and foul water from the land onto the neighbouring land. Bernel Ltd argued that the pipe running through the development site, which allowed water to flow onto the neighbouring land, was a culverted natural watercourse and therefore, gave rise to riparian rights to discharge water without the consent of the neighbouring land.

However, the court did not agree, finding that there was insufficient flow through the pipe for it to be considered a ‘natural watercourse’ as there were periods where there was no flow of water. The court considered the following points, which landowners should bear in mind:

• Periods of non-flow of water do not automatically suggest that it is not a natural watercourse;
• A dry channel which is only filled during temporary flooding does not give rise to riparian rights; and
• Whether a flow is temporary is a question of fact for the court to decide.

However, the court did suggest that, had the claimant successfully argued that the pipe was a natural watercourse then they would have been able to carry out “reasonable drainage operations” and could rely on their riparian right to drain onto the neighbouring land without consent, as long as they did not increase the flow of water by artificial means. 

Why is the above important?

It is important to be aware of your rights and responsibilities as a riparian landowner, or even your neighbours’ rights and responsibilities to ensure compliance and minimise the risk of litigation.

The impact of climate change is putting more property at risk of flooding. Being aware of your riparian rights may be prudent and may allow you to protect your property before it is too late!

For further information, please contact a member of the Property Litigation Team.