Legal consequences can flow from works to watercourses

Do you own a watercourse or have riparian rights? Do you manage land that borders a watercourse? Do you know what consents you need for works if you do? If you do not, you could be at risk of breaching a surprising number and variety of environmental laws.

Dare we mention it again… the River Lugg in Herefordshire hit the headlines in December 2020 when  works were undertaken by a landowner to a stretch of its banks to prevent flooding. Whether those works were lawful or not remains to be decided. However, the case does highlight the question of what rights and responsibilities those who own or manage land with a watercourse have. Whilst not all works relate to flooding, with the EA reporting that 1 in 6 properties across England are at risk, there is likely to be rising pressure on landowners to do what they can to minimise it – but beware, good intentions do not always have a good outcome unless the rules are followed:

What is a riparian owner?

Those who own land where a watercourse runs alongside, under or over it, such as a river, stream, brook or culvert are likely to have ‘riparian’ rights and responsibilities.

What works can the riparian owner undertake?

Works that can be carried out without a permit or consent are quite restricted.

For example, a riparian owner has be right to remove blockages, fallen trees or overhanging branches from a watercourse, but only if their presence will reduce the water flow or cause flooding to other landowners’ property. Works that are undertaken should not go beyond what is required to allow the water to run freely as conversely, trees and bushes can provide important flood protection. It is important to check that there are not tree preservation orders in place before undertaking works to trees and remember the hedgerow regulations before working on hedgerows.

In addition to the above, maintenance, repairs, building or removal of anything in or around a watercourse may require permissions or licences. This includes changing the banks or removing material from the bed. Whilst riparian owners are entitled to protect their property from flooding and erosion by undertaking such work, it is important to check whether it requires a licence, an environmental permit or, if it falls within an exemption, that the exemption is properly registered and fully applicable and complied with. Some substantial works may need planning permission as well as a permit.

It is also worth considering in advance what effect your works may have on landowners upstream and downstream and consulting with them, as if you interfere with the flow in a way which affects them they may well also threaten legal action if any damage results.

Some may have a flood defence asset on their land; these are natural or manmade structures which provide some flood prevention. These may, from time to time, require works. If you own such an asset, in addition to considering what impact any works might have on the ecology of the site and whether the work needs environmental consent, you may also require planning permission.

Your responsibilities?

Prevention of pollution of watercourses is a key responsibility; agricultural land in particular creates various pollutants; silage, manure, herbicides and livestock are all potential offenders. You are required to prevent pollution from these and many other potential sources. You should take account of watercourses when preparing Farm Waste Management plans and spreading manure or applying chemicals. Unexpected and broken land drains are a common source of pollution of watercourses.

Can I discharge into a watercourse on my land?

Intentionally discharging into a watercourse may well be lawful depending of what it is being discharged, the quantity and the circumstances. Any potentially polluting discharge will require a permit. If you intend to discharge into a watercourse, you may need to get a consent or register an exemption. An unlawful discharge would be a criminal offence.

Are the risks just from permitting?

No. Protection of wildlife is another responsibility. Before undertaking any work to or in a watercourse, you should consider undertaking an ecological survey of it and/or surrounding area.

Nesting birds, protected species and their habitats, and spawning fish are all to be considered. If they are disturbed or harm caused, there is a risk of prosecution, resulting in a fine or worse. Whilst ecological surveys can be costly, they may be useful for obtaining consents, such as permit applications, and in case there are any allegations of harm made when the work is done.

What should I do next?

• If there is a watercourse on or near your land; check who owns it.
• What type of watercourse is it – this will impact who you seek permission from.
• Assess what work need to be done; does this fall within an exemption? If not, is a standard or bespoke permit is required? Is it work that might require a licence from the lead local flood authority?
• Plan before contacting the EA or local authority; what do you need to do, have you obtained a survey, who are you contracting to do the work, when do you plan to carry out the works, etc.
• If in any doubt, seek advice before contacting the correct authority.
• Unless it is an emergency, do not act until you have considered the points above.

What if I have already undertaken work or caused pollution?

Don’t panic, ask for advice at an early stage to discuss your options as there are opportunities to take steps which will minimise the legal consequences and may prevent a prosecution.

If you would like any advice on watercourses or riparian rights, please do not hesitate to contact a member of the Planning and Environmental Team.