Riparian Rights
In September 2016 the BBC reported ‘Residents who had to evacuate their homes after a river wall collapsed are locked in a dispute over repairs they fear could cost £500,000.
They own the boundary wall along the River Arun at Arundel, West Sussex, which gave way in January after high tides and heavy rainfall.
But their insurers have refused to pay for repairs and the Environment Agency said it is the owners’ responsibility. Local MP Nick Herbert described it as a “deeply unsatisfactory situation”[1].’
River Arun, Arundel. Image source: Best of England Travel Guide
Any situation like this would dampen the idyllic notion of living beside a beautiful river. But it is one that needs to be addressed when buying property that involves a waterway, whether it is a drainage ditch or culvert, a gurgling stream or in this case a full bodied river. With changing weather patterns and constantly changing flood defence investment Riparian Rights and the risks that may require management need to be considered as part of the transaction process.
So what are Riparian rights? The Environment Agency has provided a useful layperson’s guide to Riparian Rights in its ‘Living on the Edge. A guide to your rights and responsibilities of riverside ownership’. In it the Guide describes the benefits of owning part of a water course. For example, it may come with fishing rights, or permitted mooring rights.
However, the larger part of the document focuses on the significant responsibilities that come with an adjoining water course. Some of these are:
- Maintaining the river bed and bank including trees and shrubs growing on the banks;
- Allow water to flow without obstruction, which may mean clearing debris from the river and banks, even if they did not come from your land;
- Keeping bank and any structures clear of obstructions that could increase flood risk either on your land or downstream if it is washed away;
- Allow access for river inspection by the Environment Agency or internal drainage board[2];
- Not impeding fish movement;
- Accept flood flows through your land, even if these are caused by an inadequate capacity downstream; and
- Managing your own flood risk whilst seeking approval for any structural changes.
What is a watercourse? These are channels through which water flows and fall into three categories. Main channels that tend to be larger streams and rivers or occasionally they are smaller watercourses but with strategic drainage importance. Ordinary watercourses are all other water carrying bodies unless they are a roadside ditch. Where ditches are created by a highway authority for highway drainage they become the authority’s responsibility. It is worth noting that riparian rights do not include boundaries with the sea.
How to find out whether there are Riparian responsibilities? One of the issues the home owner in Arundel experienced was ‘there was no mention of the river wall in our deeds’. This is not uncommon. If a property adjoins a watercourse it is likely that the property comes with a responsibility for the watercourse up to the water’s centre line. If a hedge or wall divides the property from the watercourse there it is possible that the hedge or wall does denote the edge of ownership responsibility. However, this is not a definitive decision and should be considered.
It is also worth identifying whether any culvert that lies beneath a property is the owners responsibility. This might result in a need for maintenance inspection or cleaning.
Who regulates riparian ownership? This is complicated by the fact that this is an area governed by Common Law and statute and a number of regulators can be involved. For larger watercourses the Environment Agency may be your first port of call but Internal Drainage Boards also have responsibility for some land drainage water courses. Any work on or near a watercourse will require professional advice as this is a complex area of licensing.
In the case of the River Arun the householders found themselves responsible for the river wall because the potential flooding impact was insufficiently extensive to fall within the Environment Agency remit, whilst the householders themselves did not hold adequate insurance. A degree of resolution has been reached with a Local Authority, rather than the Environment Agency, fulfilling the role of Internal Drainage Board as is more typical for this designation of river, and therefore affording closer link to local flood planning. However, it underlines the importance of understanding what responsibilities come with a property when it is acquired and what measures can be taken to ensure any identified risks are managed.
Groundsure can help in this as our reports highlight the possibility of Riparian Responsibilities in all its commercial and residential reporting.
For further advice contact Groundsure and read Environment Agency publication Living on the Edge (2016) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/454562/LIT_7114.pdf
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Date:
Jul 12, 2017
Author:
Ceri Sansom