As with most aspects of law*«*it depends*»
Basically the position is as follows;
The owner of land abutting a natural watercourse, be it a river, stream or ditch (a riparian owner), has the benefit of a number of additional rights which have been established over time at common law. Such rights may not appear on the Land Registry title to the land and will automatically pass on a conveyance of the land in question meaning that future owners will take the benefit of them without any need for express assignment of the right. In addition to obtaining the benefit of these riparian rights, a riparian owner also assumes certain responsibilities; including an obligation not to interfere with the riparian rights of other upstream and downstream land owners, who will have a right of action should their rights be interfered with. This article will therefore consider the nature of riparian rights and how these should be taken into account in relation to leases of such land.
What are riparian rights? And what responsibilities do riparian owners have?
Case law has confirmed that riparian owners not only have the right to use the water within a river or other watercourse for ordinary purposes, which include domestic use and use for livestock, but also the right to use that water for less usual purposes. The right to use water for ordinary purposes applies without the land owner having to take into account the effect of that use on other riparian owners; [1] however, use of the water for less ordinary purposes can only occur to the extent that the rights of other owners are not interfered with. As such, a watercourse may, for example, be dammed or diverted by a riparian owner so long the regular flow of the water is not interrupted and the lawful use of the water by other owners disrupted.
A riparian owner has a right to have a stream “flow in its natural state without diminution or alteration” [2]. As a consequence a riparian owner has the right to receive a natural flow of water in its usual quantity and quality. As a result of this right, water should not be taken out of the watercourse if it would lead to a shortage of water for those who need it downstream. Should a riparian owner’s right to the natural flow of the water be disrupted causing actual damage, the riparian owner is entitled to the intervention of the courts [3]. Furthermore, whilst the rights of riparian owners extend to an ability to build on the bed of the river provided that the flow of the water is not altered, a riparian owner should not undertake any activity on its land which could pollute the water and lead to a reduction in the water quality within the watercourse.
In terms of responsibilities, in addition to the obligation to let water flow through land without any obstruction, diversion or pollution which would impact on the rights of other owners, riparian owners must also accept flooding on their land even if this is caused by inadequate downstream capacity. A landowner is under no obligation to improve drainage capacity in a watercourse that he or she owns. Banks must be kept free of anything that could obstruct the watercourse or lead to an increased flood risk and local byelaws, which can impact on what activities can be carried out within a certain distance of a watercourse, must be taken into consideration when planning any development within the vicinity of a river.
Whilst detailed consideration of flood risk is beyond the scope of this article, riparian owners do have a responsibility to manage flood risk, and risk management agencies, which include the Environment Agency and local authorities, can designate certain features and structures on land abutting a watercourse as flood risk management assets. Such designation prevents those features and structures being altered, replaced or removed without consent. The consent of such risk management agencies may also be required for development of land abutting a watercourse and such agencies will take into consideration various environmental factors, which include flood risk, wildlife conservation and effects on the river and landscape when determining whether to grant consent.
It ought to be borne in mind though that the permission of third parties may be required to undertake other activities in relation to a watercourse. For example, to abstract water from a river, the consent of the Environment Agency may be required who, when determining whether to grant consent, will consider the effect on the environment of the proposal to abstract, the protection of existing abstraction rights and that water resources are managed in the best interests of the environment.
A number of presumptions also exist relating to watercourses, which include a general rebuttable presumption similar to that which exist for roads, that the owner of land abutting a river is entitled to the soil of the bed of the river so far as the mid point. It should be noted though that this presumption does not apply to tidal rivers the beds of which are owned by the Crown. Furthermore, subject to the expression of a contrary intention, a conveyance of land abutting a river is presumed to include half of the river bed even if it is not expressly referred to as part of the demised property, as long as the conveyance is made by a person who himself is so entitled [4].
Points to consider in a lease of land abutting a watercourse
When granting a lease of a land abutting a watercourse, a landlord should ensure that the tenant’s indemnity in the lease is extended to cover damage caused by the tenant to the watercourse which results in a claim from a neighbouring owner for interference with their rights. A landlord should also consider if rights have been granted to any third parties, for example in the form of fishing licences, which could require the use of the water by the tenant to be limited to prevent disruption of water flow of interference with fish stock.
A tenant, when taking a lease of land next to a river, will need to consider whether they require the lease to grant to them rights equivalent to those which their landlord enjoys by virtue of common law, to the extent that such rights do not automatically extend to them. Riparian owners have rights of access to and egress from the water and such rights also benefit tenants of the land unless they have been expressly excluded in their lease
Finally, a well advised tenant should also ensure that they have the ability to require a landlord to enforce their rights against neighbouring owners in the event of interference or, in the alternative consent from the landlord for the tenant to enforce directly.
It isn’t straightforward and I rarely had occasion to look into the matter. One of my clubs h1s now given up their leased rights to an overgrown polluted stream devoid of fish. The respective rights of landowners and anglers has to be determined on their facts.
_____________________
