Latest blog from our Commercial Property department.
Land by a river or stream (riparian land) can be a popular development site due to its attractive ambiance.
A landowner who owns land next to a watercourse however has additional rights and responsibilities (known as ‘riparian rights’). An owner can delegate these rights and obligations to a tenant through a lease, but does not have to do so.
A prospective purchaser/tenant needs to understand the implications of owning riparian land. Riparian rights and duties are unlikely to be apparent on the title to the land so it is up to the buyer or tenant to work out the implications. It is important to know:
- What financial liability might arise from riparian rights and responsibilities;
- Whether they will constrain the use of the land; and
- Who has to give consent to works on the riparian land.
A riparian owner may use the water from a natural watercourse for “ordinary use”. This right derives from common law, not from statute or the grant of easements, so is unlikely to appear on the Land Registry title. The common law regime only applies to natural watercourses and not man-made ones. You may however need a licence from the Environment Agency to abstract water from or impound water on a watercourse, and you will almost certainly need an abstraction licence if you intend to:
- Remove or abstract water from a surface source such as a river or canal; and
- Take more than 20 cubic metres (4,400 gallons) a day.
This is a complex area but generally a riparian owner must avoid action that prejudices the quantity or quality of the natural flow of water. The riparian owner must act reasonably, not prejudicing the quantity or quality of the water’s natural flow. If they fail to do so, other riparian owners can take action even if they have not yet suffered actual damage as a result of the interference.
If a riparian owner is carrying out works on the land, he may require statutory consent for certain types of work.
Who owns the watercourse?
It is often necessary to determine who owns the watercourse and where the boundary lies when riparian land is sold. Where a landowner owns land on both sides of the watercourse, the presumption is that he owns all the soil below and airspace above its bed. Where an owner owns only land on one side of the watercourse, the presumption is that he owns the bed of the watercourse up to the midline and all the airspace above that. In neither case will the riparian owner own the water. Either presumption can be refuted by contrary evidence, for example express references in past conveyances or practice over many years. Neither presumption applies to a tidal river because here the Crown owns the riverbed.
Of course, river banks will change position over time. The boundaries of the riparian land will move with those changes, but this will not appear on the Land Registry title plan.
For further information please contact a member of our Commercial Property department.
Myerson are the premier commercial property solicitors in Cheshire and South Manchester. Our expert solicitors can advise on all aspects of commercial property law.