If only things were like they are in the movies!
This article borrows its title from the 1992 Brad Pitt/Robert Redford movie based upon the earlier 1976 MacLean novel. It is a story of life and brotherhood on the river, framed in wonderfully positive sentiment as “… the Maclean brothers, Paul and Norman, live a relatively idyllic life in rural Montana, spending much of their time fly fishing…”.
What the MacLean Brothers failed to tell us was that living next to a river also brings a need for caution and awareness.
Riparian ownership and obligations
A river may make for a beautiful boundary line or an enchanting vista. As wonderful as it may be, for many landowners, it also brings legal duties. In England, an owner whose land adjoins a natural watercourse is usually a “riparian owner”. This confers the legal privilege of certain rights over the watercourse, but also the responsibilities for its upkeep.
Responsibilities of this kind are not trivial matters to be ignored. Government guidance and the Land Drainage Act 1991 make clear that a riparian owner is generally expected to keep the bed and banks clear, maintain the free flow of water and manage vegetation or obstructions that may increase flood risk. They may also need consent before carrying out certain works in or near an ordinary watercourse. Of course, all cases will vary depending on the subjective circumstances.
Rights and benefits
While it might start to sound like riparian ownership is burdensome, there are some recognised rights attached to the role. Subject to the rights of others, specific circumstances and regulatory control, a riparian owner will ordinarily be entitled to receive the natural flow of water to the property, in its natural quantity and quality, without unlawful interference upstream. A riparian owner may also have rights of reasonable access to the watercourse, rights to protect the bank from erosion and rights to fish, moor or abstract limited quantities of water in some circumstances, depending on the nature of the watercourse and any private rights, licences or statutory restrictions that apply. By way of example, an adjoining owner may lawfully remove debris from their section of a stream to preserve flow, or install bank protection works, but consent will usually be required from the relevant authority before carrying out works that affect an ordinary watercourse or main river.
Liability, risk and exposure
If neglect causes damage, you will likely feel the legal sting. Liability may arise not only under statute, but also in private nuisance or negligence. Where neglect of a watercourse causes damage to neighbouring or third-party property, the legal consequences can be significant. A riparian owner who fails to maintain the bed, banks, ditch, culvert or other watercourse features may face claims in private nuisance, negligence and, in some cases, liability arising from breach of statutory duty or enforcement action by the relevant drainage or environmental authority. The key question is often whether the owner knew, or ought reasonably to have known, of the relevant risk and failed to take reasonable steps to prevent foreseeable harm. If, for example, a landowner allows a ditch to become blocked by silt, vegetation or fallen timber and that obstruction contributes to flooding of a neighbouring house, farmland or highway, the owner may be exposed to a claim for property damage, remediation costs, loss of use and other consequential losses. In practice, what is “reasonable” will depend on the scale of the risk, the cost and practicality of remedial works and the resources available to the owner, but inaction in the face of an obvious drainage problem is rarely a comfortable position.
Examples and context
Cases such as Sedleigh-Denfield v O’Callaghan [1940] AC 880, Leakey v National Trust [1980] QB 485 and Holbeck Hall Hotel Ltd v Scarborough BC [2000] QB 836 underline a recurring principle. They set the legal precedent that an occupier who knows, or ought reasonably to know, of a hazard on their land may be required to take reasonable steps to prevent foreseeable damage to neighbours. Where a blocked ditch, collapsed bank or unmanaged culvert contributes to flooding, claims for consequential losses may follow.
The recent mainstream media coverage concerning Graham Ottaway is interesting. To the extent that the reported articles accurately reflect a dispute over watercourse maintenance and resulting loss, it is a reminder that riparian ownership is not just a picturesque concept worthy of a passing nod to the MacLean Brothers. You need to view it as a practical legal status. The water flowing in the stream behind the garden fence carries responsibility, regulatory scrutiny and potentially substantial civil exposure.
At Dyne Solicitors we are specialists in Regulatory Disputes and Environmental Litigation. If you have any queries or wish to discuss your legal issues, please contact as@dynesolicitors.co.uk or call the office on 01829773100. A member of the Team is always willing to make time for a preliminary and no-obligation chat.