Waterside Properties: Don’t Get Washed Away by Your Obligations
Tue 29 Sep 2015
Anyone who owns property which is adjacent to a watercourse or through which a watercourse runs enjoys rights and is also subject to additional responsibilities in relation to such watercourse. These rights and responsibilities must be taken into consideration in the day to day management and also before developing such land. The nature of these rights and responsibilities depends on the nature of the watercourse.
A “riparian landowner” is someone who owns land which abuts a watercourse (such as a river or a canal) or which has water running over or under it. A riparian landowner does not own the water running through the watercourse but there is a rebuttable presumption that a riparian landowner whose property abuts a non-tidal watercourse owns up to the centre of that watercourse. This presumption can be overridden if, for example, the title to the bed of the watercourse states different ownership to that of the riparian land or maintenance of the watercourse is the responsibility of a particular third party such as the Canal and River Trust, the Port of London Authority or the Environment Agency. Ownership of the foreshore and beds of tidal waterways is vested in the Crown and often transferred to a body such as the Port of London Authority.
Riparian ownership is transferred with the riparian land and no express mention of riparian rights and responsibilities need be included in the transfer of the land for this to be achieved.
Access - if riparian land is in daily contact with the water in the watercourse, riparian landowners are entitled to rights of access to and from the watercourse. Landowners may also moor vessels for loading and unloading but must not interfere with the public right of navigation and must not interfere with the rights of other riparian landowners. Riparian landowners do not enjoy an immediate right to permanently moor vessels.
Continuance of Flow – riparian landowners have the right to the flow of water through the watercourse in its natural state (quantity and quality) whether or not the landowner makes use of such water. As a result of this right, water must also not be removed from the watercourse so as to cause a reduction in flow to riparian properties downstream, Riparian landowners also have the right for water to flow from their land without obstruction.
Protection from Flooding – riparian landowners have a right to protect their land from flooding and erosion however this must not injure other riparian landowners, must not interfere with the public right of navigation and any plans for flood defences must be agreed with the local flood risk management agency.
Riparian Rights can be exercised by tenants and/ or licensees of freehold riparian owners (subject to any contrary intention stated in the lease or licence).
These responsibilities apply to all riparian properties. However, how such responsibilities are divided up will depend on how ownership of the banks/ edge and the bed of the watercourse is divided (see “Riparian Ownership” section above).
Pollution – riparian landowners must not pollute the water in the watercourse, nor do anything to reduce the quality of the water in the watercourse, nor discharge water into the watercourse without a permit from the Environment Agency or other relevant local body; this does not include clean surface water run off (e.g. from roofs or roads). Riparian landowners must also work to control invasive species such a Japanese knotweed.
Prevention and removal of obstructions – riparian landowners have a responsibility to maintain the bed and banks of the watercourse and to keep these clear of all obstructions that could reasonably cause an obstruction, increase the flood risk or interfere with the rights of other riparian landowners or the public right of navigation. This responsibility extends to an obligation to remove blockages from the riparian landowner’s section of the watercourse even if the blockage did not come from the riparian landowner’s property.
Development-free edge –riparian landowners must leave a “development-free” edge on the bank of the watercourse to allow easy access for relevant authorities in case of maintenance or inspection.
Maintain Flood Defences – if a feature on the riparian property is designated as a “flood risk management asset” this cannot be removed, replaced or altered without the consent of the relevant authority. To establish what is a flood risk management asset riparian landowners must enquire of their local flood risk management authority. Before commencing any development of riparian properties, landowners must discuss all plans with the relevant local flood risk management authority and obtain any additional licences or permits that may be required.
This article is intended to be a whistle-stop tour of some of the key rights that riparian landowners enjoy over their watercourses and also some of the responsibilities that must be observed. In practice there are many further considerations to be taken into account in relation to riparian landownership (including third party consents required, local regulations and bye-laws, environmental considerations and flood risks).
The Environment Agency has produced a helpful guide to riverside ownership called “Living on the Edge”