Riparian rights for residential developers 

When acting for residential developers on land acquisition, it is important to establish that there are sufficient legal rights for the passage of services to and from the proposed site. Surface water rights in particular, have not proved easy, especially where surface water drains to a nearby river or other natural watercourse.   

There is a common law right for the natural flow of surface water from high land onto lower neighbouring land, however if there is any interference with that natural flow, such as diverting it via pipes or attenuation tanks this common law right cannot be claimed. 

Local Authorities will often dictate how surface water must be dealt with on-site via the Building Regulation Process, leaving many unable to rely on the common law right as the flow is no longer “natural”.  

The recent case of Bernel Ltd v Canal and River Trust [2021] EWHC 16 (CH) has assisted several clients recently in establishing a legal right for surface water drainage by relying on riparian rights.   

The claimant in this case, Bernel Ltd (“Bernel”), a developer, owned a plot of land on which it was constructing nine properties. On Bernel’s land was a pipe which ran across the land, discharging onto adjacent land (Canal and River Trust’s land) and into a canal. Bernel wanted to use this pipe to accumulate surface water and effluent on its land and then discharge onto the defendant’s land. As Bernel did not have a specific right to do so, it tried to argue that the pipe was a cultivated stream or natural watercourse and that it therefore benefited from riparian rights as a riparian landowner. Whereas the defendant disagreed, arguing that the pipe did not amount to a natural watercourse and was a sewer or a drain.  

Although the developer was unsuccessful in this instance in establishing riparian rights, (because there was insufficient flow through the pipe for it to be considered a ‘natural watercourse’), the court noted that landowners should consider the following points:  

• 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 is not considered a watercourse and does not give rise to riparian rights.  

• Whether a flow is temporary is a question of fact for the court to decide.  

In addition, the court clarified that, if the pipe was a natural watercourse, and the flow of water was not increased artificially, then the claimant would have been entitled to enjoy rights as a riparian landowner, and those rights would have extended to the accumulation of surface water, and discharge of it and effluent into the pipeline. 

Whether riparian rights can be claimed will depend on the circumstances of each individual case. However, as a starting point to be a beneficiary of riparian rights you must meet the following criteria:  

1. You need a naturally formed ditch on your land. 

2. The ditch must be within the boundaries of the title of the land.  

3. There must be a natural watercourse or natural water that runs through or under your land.  

If you require bespoke advice applicable to the site you are looking to acquire or already own, please get in touch and we will be happy to assist in conjunction with our colleagues in our Real Estate Litigation Team.