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Rights and responsibilities of living by a watercourse

09 Mar 2016

In the last few years it seems as though the recurring theme every winter is of extreme weather and flooding. Wales, Scotland, Yorkshire and the North West have been some of the hardest hit areas as records for unusual and wet weather have been smashed.

Flood defences that have been in place for years are being tested like never before and, unfortunately, they are often found wanting. Unprecedented rainfall and flash flooding has brought volumes of water that pre-existing water management structures such as culverts may not be capable of managing. Culverts across the country have all made the news for the wrong reasons following instances of severe flooding and property damage.

The Environment Agency now actively discourages the construction of new culverts due to the potential flood risks and resulting damage to the environment. Where pre-existing culverts exist however, landowners, developers, businesses and residents must be aware of their rights and responsibilities.

If you own land adjoining, above or with a watercourse running through it, in legal terms you are the “riparian owner”. As riparian owner you have the responsibility to let water flow through your land without any restriction, pollution or diversion which affects the rights of others. You must keep the banks of the watercourse clear of anything that could cause an obstruction and increase flood risk, either on your land or downstream if it is washed away.

You are also responsible for maintaining the bed and banks of the watercourse and the trees and shrubs growing on the banks. You must keep any structures such as culverts, trash screens, weirs and mill gates clear of debris and you are not permitted to construct any structures or carry out any works on your land which are likely to affect the water flow without prior regulatory consultation.

If a body of water is enclosed in a culvert and, owing either to its inadequacy to cope with the volume of water or to its bad state of repair, the water overflows and damages neighbouring property, the owner of the culvert is liable due to the long-standing legal principle set out in the case of Rylands v Fletcher. Simply put, a person who accumulates or diverts water must ensure that it does not cause damage if it escapes.

In the case of a culvert the responsibility for maintenance lies with the landowner. If there is a culvert on or through your land, you generally own it from the point where it enters to the point where it leaves your land and this is the case whether you are aware of its existence or not.

With flooding costing the UK a reported £2.2 billion a year, can you afford to ignore what may be underfoot?

For further information, please contact Jan Rzedzian, Associate Solicitor at Hay & Kilner
Call: 0191 232 8345
Email: Jan.Rzedzian@hay-kilner.co.uk