Russell-Cooke's real estate team delve into the complexities of riparian ownership, the responsibilities, permissions, and potential exceptions for landowners adjacent to watercourses, shedding light on the essential legal considerations in such circumstances.
What is a Riparian Owner?
If you are looking to purchase a property or own a property which is in the vicinity of a watercourse then it is important to note that there is a common law presumption “ad medium filum aquae”. This effectively means you could own a stretch of watercourse which either runs on or under your land or on the boundary of your land, up to its centre (including its river bed).
Watercourses include non-tidal natural rivers, brooks, becks, ditches, streams, leats, goyles, rhynes and culverts.
Here, the owner may be considered a 'Riparian Owner', and potentially would have the right to fish in the water but we are not going to cover fishing rights in this article. However, your solicitor can advise on this point further, if required.
For tidal rivers—It is important to note that the bed and shore of a tidal river is first initially vested in the Crown and is subject to the public rights of navigation and fishing. The Crown’s rights may extend to the point in the river where the tide ebbs and flows, and then beyond that the 'ad medium filum' rule will apply in favour of adjoining owners.
If you own a stretch of watercourse which falls within a main river then your risk management authority is the Environment Agency and further enquiries ought to be made with them to obtain advice on what you must do such as managing flood risks/defences on your land (if applicable).
What are the responsibilities of Riparian landowners?
The responsibilities of riparian landowners include:
obtaining permission or licences from either the Environmental Agency or the local authority (depending on the status of the river) in order to maintain, repair, build or remove anything in or around a watercourse. This includes changing a weir or bridge;
reporting incidents such as flooding, blockages or damaged banks to the Environment Agency;
letting the water flow naturally;
preventing pollution; and
If you own a watercourse—then you would need to get permission or a licence to do work in or around it which would include (but not limited to):
creating or changing a mooring, mill, fence, dam, weir, bridge or culvert
changing the banks
removing material from the bed
If you fail to do so, you could risk getting a fine or go to prison.
Permission or a licence for such works can either be obtained as an environmental permit from the Environment Agency (depending if it is a main river or any other watercourse) or from a lead local flood authority or internal drainage board. These organisations control work carried out in and around watercourses.
Can the common law presumption be rebutted?
In short, yes:
- where the seller did not own, or is to be taken as not intending to convey, the river or stream to the buyer, or
- where the conveyancing history of the land and the river or stream is known from the time when they were in common ownership.
Further investigations at HM Land Registry together with raising further enquiries with the Seller would be required in order to establish this position.
What happens if there are bridges over the river?
In general, the owner of soil is presumed to own the airspace above and soil underneath it (Mitchell v Moseley 1913 1 CH 438). However, there is no current authority to show that the riparian owner owns the airspace but based on case law this may apply, assuming the bridges are not adopted nor a public highway and the title documents don’t mention rights or obligations with regard to the bridge which benefits this property alone.
Real estate legal news—October 2023
Welcome to the second edition of Russell-Cooke’s real estate legal news. It’s now been six months since we published our inaugural newsletter.
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