Riparian Rights

A day of considerable rain on Friday 22 June caused flooding throughout Chorley Borough, Charnock Richard and Heskin suffered, though not to the extent of such as Croston. However, my ‘phone that evening was busy; hopefully I managed to help all those who contacted me, however, one such ‘phone call will take a while to resolve and has introduced me to the issues affecting landowners where their property borders a watercourse.

Riparian rights are the rights of a landowner in respect of a natural watercourse on, or adjacent to, their property. Now, this sounds idyllic and conjures up images of a tranquil stream or babbling brook at the end of a garden, attracting a large amount of wildlife for the fortunate residents to enjoy. Unfortunately, not in this case as the watercourse is more of a neglected ditch, or broken pipe through which the natural watercourse is supposed to run freely. Such rights originated in common law, having evolved from disputes in the past to become law.

A “watercourse” can be both open and above ground, such as a stream or river, or enclosed below ground, such as a spring. Notably, a watercourse need not at all times contain water but can be dry at certain times of year and, for the purposes of riparian rights, is deemed to be a natural-flowing channel rather than a man-made channel or still body of water.

The part of these rights that affect the people who have contacted me is that riparian rights affect not just those that have a watercourse flowing across their land, but also those with land where the watercourse forms a boundary with another landowner. In fact, even further than that, the rights apply where a watercourse passes immediately adjacent to a boundary, even if it is outside the landowner’s ownership, as the flow of the watercourse has the potential to affect this land.

So what are these riparian rights? The key points are as follows:

Two points that have relevance to us…

• The landowner has the right to protect his property from flooding and erosion.

• Where a watercourse provides an ownership boundary, it is presumed under riparian rights that the mid-point of the watercourse is the boundary point unless expressly stated to the contrary on a title deed. - It is a right to receive the flow of water in its natural state without undue interference to quantity or quality.

…and two that are not relevant to us…

• A landowner may fish his own river provided it is by legal methods with the appropriate licenses.

• It is a right to abstract water for domestic purposes up to a stated amount. It should be noted that riparian rights provide only a common law basis for landowners, but in recent time further legislation has been drafted in support of these rights to cover more complex cases. Most notably the Environment Agency provides licensing for commercial water extraction, fishing and the carrying out of works to alter a watercourse.

Where riparian rights exist it follows that there will also be responsibilities; in the same way that a right exists to receive a flow of water without interference, there is also a responsibility on land owners to ensure that they preserve this right for other landowners. The watercourse must be maintained and kept free from obstruction including trees and shrubs on the banks and even dead animal carcasses that may contaminate the water. Fish must also be allowed to pass freely.

Earlier, mention was made to riparian rights having originated in common law, evolving from disputes in the past to become law. It would appear these disputes are not only in the past and my role is becoming one of trying to sort out a long standing dispute to the benefit of several residents.

Planning matters related to Chisnall Ward are covered in my blog Chisnall Planning www.chisnallplanning.blogspot.com