Any landowner or developer whose property adjoins or contains a natural watercourse should be aware of the system of rights and obligations along the length of the watercourse known as riparian rights. Developing or using land without giving due consideration to riparian rights can lead to problems.
To start – what are riparian rights?
Riparian rights describe an ancient, non-statutory system of rights relating to any property where there is a natural watercourse within or adjacent to its boundaries. The rights run with the land, passing from landowner to landowner with the grant of a lease or transfer. ‘Riparian owners’ with property abutting a watercourse are presumed to own the land under the water up to the centre line of the watercourse, although the presumption is rebuttable by evidence to the contrary.
The natural rights of a riparian owner in relation to a natural stream are threefold:
- A right of use – riparian owners can use the water for certain purposes connected to the land adjoining the watercourse, such as fishing, mooring and discharge into the watercourse (subject to the rights of other riparian owners);
- A right of flow – a riparian owner is entitled to have the water come to them and go from them without obstruction;
- A right of purity – the water passing through should be unpolluted.
The flow of a natural stream creates interactions between the mutual rights and liabilities of all the riparian owners along the length of its course. By way of example (ignoring for this purpose other regulatory and statutory factors):
- Imaginary Housing Ltd (IHL) has purchased a new site for development, which lies adjacent to a river. They plan to market the property to those interested in sailing – as the riparian owner, IHL and its assignees have the right to moor boats on the river.
- However, the river is prone to silt build-up on its bed, and driftwood frequently builds up on its banks. IHL and its assignees have a responsibility to riparian owners downstream not to allow the silt and driftwood to obstruct the flow of water to their land, and to the upstream owners not to allow the build up to cause flooding of their land. This responsibility extends to maintaining the river banks and any river walls, in order to avoid liability for flood damage on other property.
- IHL is aware of a factory located upriver of their development. If the factory pollutes the water which serves IHL’s land, IHL could pursue an action for private nuisance against the owners of the factory. They will also need to ensure that their own surface water discharge into the river does not become polluted.
In the example given above, an adjoining, land-locked housing development may need to discharge surface water into the river across IHL’s land. They would need to negotiate a right of discharge by way of easement from IHL. The local kayaking society may also want an access easement in order to launch onto the watercourse.
So, how do problems arise?
When drawing up site boundaries prior to purchase or development, ownership of natural watercourses should be considered carefully as they are often not registered at the Land Registry. In particular, owners of land abutting an unregistered watercourse should remember that the riparian owner of land on the other side will own to the centre line; this is particularly important if works are required to the entirety of the watercourse.
Even when the site boundary is drawn along the edge of a natural watercourse, the land underneath up to the centre line will still pass with any lease or transfer of the land, alongside all riparian rights and responsibilities identified above.
This is a complex area of law, and riparian rights are commonly sidestepped by express grants of easements and licences. Fishing rights, for example, can be separated from the land by the creation of a lease or licence, and documentation, such as private agreements between landowners, may rebut the above presumptions as to riparian ownership. If in doubt, there is always the option of taking out insurance against any unknown factors which have the potential to crop up.