Who owns a stream or ditch? Can I make changes to it?
Owning a watercourse (e.g. stream or ditch) and what that means is not something many people think about, and we often find that ownership comes as a surprise to homeowners and landowners alike.
These responsibilities are not included within the deeds to a property and are not routinely flagged up during the conveyancing process.
This page aims to address the questions we are often asked about watercourse ownership and the responsibilities that brings.
What is a watercourse?
A watercourse is a route water flows through that’s contained within a defined channel or through an in-ground pipe (known as a culvert). The route can be natural or manmade, narrow or wide and even dry over long periods of time, they all still count as “watercourses”.
Watercourses can be called many things but commonly they are known as rivers, streams, ditches, brooks and culverts. Some are even known as drains, especially in the countryside where farmers can refer to them as land drains or drainage ditches.
How to tell if I own a watercourse?
You will usually own a stretch of watercourse that:
- That runs through your land at the surface.
- Is culverted (piped) under your land.
- Forms the boundary of your land (up to the centre of the channel or pipe).
It is important to remember that fences, walls or hedges are often not on boundaries. It is very common for garden fences to separate homes from watercourses but that does not necessarily mean you don’t own that stretch of watercourse.
For example, the photo below shows a wire mesh fence inside the watercourse’s channel. This does not define the landowner’s ownership boundary.
Who is responsible for a watercourse?
A common misunderstanding is that the Environment Agency or Council are responsible for looking after watercourses. This is incorrect. Riparian landowners have responsibility for watercourses.
You can be classified as a riparian landowner if:
- You own a watercourse (see How to tell if I own a watercourse?).
- Your land abuts a stretch of of land containing a watercourse where the owner is legally unknown.
As a riparian landowner you have certain rights and responsibilities towards the watercourse. This is knows as 'Riparian Rights and Responsibilities'. The four responsibilities are:
- Let water flow naturally by:
- removing blockages if they obstruct navigation, reduce the flow of water or cause flooding to other landowner's property.
- Keeping any trash screen, weir, mill, gate or other structure clear.
- Prevent pollution by:
- Not throwing waste water, chemicals, or anything else that can cause pollution onto the banks or into the water.
- Removing litter from the watercourse and its banks.
- Remove any animal carcasses you find.
- Not putting garden waste, including grass cuttings, onto the banks or into the water.
- Protect wildlife by:
- Not disturbing the watercourse bed or banks, birds and their nests, or spawning fish and their eggs.
- Preventing invasive species such as Japanese Knotweed from spreading into the wild or neighbouring land.
- Report an incident to the relevant authority when you become aware of:
- Flooding.
- Blockages that could cause flooding.
- Pollution.
- Unusual changes to the flow of water.
- Collapsed or badly damaged banks.
- Any work or activity on or near a watercourse that may not have permission.
What are the roles of the Environment Agency and Council?
The Environment Agency, East Sussex County Council and Inernal Drainage Boards are ‘risk management authorities’. Their role includes controlling work carried out in and around watercourses (via a consenting process) and investigating potential causes of concern within watercourses.
They can serve enforcement on riparian landowners if unpermitted works have been undertaken. They can also require remedial action to be taken if all relevant consents and conditions are not followed when works are undertaken in or next to a watercourse.
Do I need consent to undertake work and who do I get it from?
Anyone proposing to undertake work on or next to a watercourse that could impact the flow of water may require consent from the relevant risk management authority. This consent is separate to any other permissions granted, and must be obtained in addition to any planning permission granted etc.
It is also important to note that these permissions cannot be granted retrospectively and failure to obtain consent prior to undertaking work may place the riparian landowner in breach of the Land Drainage Act 1991.
Who you need consent from is based on both the classification of the watercourse and the location of the works.
Main Rivers
For Main Rivers you may need consent from the Environment Agency.
You can check if a watercourse is a Main River using the Statutory Main River Map.
Details on when consent from the Environment Agency is required, the types of permits available, and the application process are available online at: Flood risk activities: environmental permits - GOV.UK.
Ordinary Watercourses
If a watercourse is not Main River, it is considered an Ordinary Watercourse, and you may require consent from the Lead Local Flood Authority (ESCC) or an Internal Drainage Board.
You can check if the works are located within an Internal Drainage Board area using the Internal Drainage Boards Map - Association of Drainage Authorities.
If the works are on an ordinary watercourse and are not located within an Internal Drainage Board area, then consent will need to be obtained from the Lead Local Flood Authority. In East Sussex this is East Sussex County Council.
Consequences of blocking a watercourse or not getting consent for works
Blockages of any kind, or restrictions to the flow of water via work within a watercourse or a lack of maintenance, can increase flood risk to not only the landowner immediately next to the blockage but also to landowners up or downstream.
Failure to obtain consent for works before they start or allowing a watercourse to remain blocked could place the riparian landowner in breach of the Land Drainage Act 1991. Landowners in breach of the Act are at risk of enforcement action being taken against them by either the Internal Drainage Board or East Sussex County Council as the Lead Local Flood Authority. As set out in Sections 23 – 27 of the Land Drainage Act 1991, riparian landowners that fail to address breaches of the Act may be subject to a summary conviction and liable to fines. The Internal Drainage Board and ESCC may also take actions to remedy the effect of the breach and recover expenses incurred by doing so. Further details into the Land Drainage Act 1991 can be found at Land Drainage Act 1991.
In addition, identified breaches of the Act will be recorded and may be reported to third parties via the CON29 enquiries process. Details of this process can be found here: CON29 Search | East Sussex County Council.
