Managing a watercourse or flood risk asset on your land
A riparian owner is someone who owns a watercourse that is within or adjacent to their property. Riparian owners have a number of legal responsibilities, including reporting incidents, letting water flow naturally, preventing pollution and protecting wildlife. Depending on the type of watercourse, they must report issues to either the Environment Agency or their Local Authority (Calderdale Council) and get consent from the appropriate body in order to undertake any work.
Main rivers vs. ordinary watercourses
Main rivers are usually larger streams and rivers, but they also include those smaller watercourses that help with drainage. Officially, a main river is defined as a watercourse shown as a ‘main river’ on a main river map. It can also include any structure or equipment used for controlling or regulating the flow of water along its course, either in or out of a main river. The Environment Agency has powers to carry out flood defence works and carry out enforcement action applying to main rivers only.
An ordinary watercourse is every river, stream, ditch, drain, cut, dyke, sluice, sewer (other than a public surface water sewer or highway drain) and passage through which water flows, but which does not form part of a main river. These occur naturally, and they serve to drain the land and help support animal and flower life. Historically, watercourses have taken water run-off from buildings and roads, as well as fields and parks. In the process of development, many have been culverted or changed in other ways.
In normal conditions the watercourse may be a dry channel in the ground, but in storm conditions it may become a raging torrent.
If you live by – or you own property that is next to – any watercourse, or you have a watercourse that flows through your property, you are a 'riparian landowner'. This means you have 'riparian' rights and responsibilities which have been established in common law for many years.
If the land on the other side of the watercourse is owned by a third party then it is likely that this person is the ‘joint riparian owner’ for the length of watercourse adjacent to the boundary. Unless the landowners’ deeds show otherwise, it is always assumed that each person owns the area up to the centre line of the watercourse.
A riparian owner is responsible for accepting water from their upstream neighbour and transferring it – along with any existing drainage from their own property – freely, to their neighbour downstream. More responsibilities of the riparian landowner are detailed as follows:
- Pass flow onwards without obstruction, pollution or diversion that affects the rights of others.
- Accept flood flows through their land, even if these are caused by inadequate capacity downstream. You have the right to protect your property from flooding but you must agree your plans with the appropriate authority beforehand.
- Maintain the bed and banks of the watercourse (including trees and shrubs growing on the banks) and clear any debris, natural or man-made, including litter and animal carcasses, even if it didn’t originate from their land.
- Not cause any obstructions – either temporary or permanent – that would prevent the free passage of fish.
- Keep the bed and banks clear of any matter that could cause an obstruction either on their own land or at a structure downstream by being washed away by high flow. Rivers and their banks should not be used for the disposal of any form of garden or other waste.
- Keep any structures clear of debris. These structures include culverts, trash screens, weirs and mill gates.
- Protect property from seepage through natural or man-made banks. Where such seepage threatens the structural integrity of a flood defence it may become the concern of the Environment Agency.
If you wish to change the watercourse
Plans for any works on ordinary watercourses other than general cleaning and routine maintenance (such as the removal of weeds or debris) must be approved by Calderdale Council as Lead Local Flood Authority. Consents must be secured before starting any work. This applies to any modifications which might affect the flow characteristics or capacity, and includes the installation of dams, weirs, mills, channel diversions and, in particular, culverting or piping. To undertake work on an ordinary watercourse you should apply for Ordinary Watercourse Consent by emailing email@example.com or calling 01422 288002.
If the watercourse is classed as a main watercourse (usually larger rivers or streams) the Environment Agency is responsible for authorising consent to works and carrying out enforcement action. In order to carry out work on a main watercourse you need to apply for Flood Defence consent by emailing firstname.lastname@example.org or calling 03708 506 506.
The Environment Agency has a page explaining your rights and responsibilities as a riparian owner in more detail. You can view this here.
What happens if ordinary watercourses are not maintained?
The riparian owner must not cause or perpetuate a nuisance, such as creating obstruction to the flow of water in a stream by causing the channel to become blocked. Calderdale Council has no responsibilities (except where it is a landowner) for land drainage. However, it has permissive powers and can (but is not obliged to) serve notice on individuals and carry out works in default if watercourses have become blocked resulting in a flood risk or a health hazard. These powers are contained in the Land Drainage Acts 1991 and 1994, and sections 259 – 265 of the Public Health Act 1936.
Calderdale Council as Lead Local Flood Authority (LLFA) has a responsibility to investigate flood incidents under Section 19 of the Flood and Water Management Act 2010.
The LLFA also has powers under Sections 23, 24 and 25 of the Land Drainage Act 1991 with regard to issuing of consents, enforcement against un-consented works and general enforcement of riparian landowner duties.
The following is a summary of the most relevant sections of the Land Drainage Act 1991 to the Local Authority:
- Section 14: Power for a local authority to perform works for the prevention or mitigation of flooding risk other than in connection with a main river or the banks or within an internal drainage board area.
- Section 25: The power to serve notice on persons requiring them to carry out necessary works to maintain the flow of any water course, and the power to carry out works in default and recover its reasonable expenses should the riparian owner fail to carry out their responsibility.
- Section 15: Disposal of or deposit matter removed from a water course on land adjoining the watercourse.