Agenda item

(1)          Max Tant gave a presentation. The slides are contained with the electronic agenda papers on the KCC website.

(2)       Mr Tant explained that the summary he was going to give about riparian rights and ownership needed to be treated as general information as there were many aspects of Law and common law which came into play in certain situations, on occasion overriding the general principles which he was going to explain.

(3)       Mr Tant began his presentation by setting out definitions. He said that a “watercourse” was defined in law as any channel through which water flowed (whether natural or man-made).   A “main river” was a watercourse which had been so designated by the EA. An “ordinary watercourse” was any watercourse which was not a main river.  “Ponds and lakes” were not watercourses unless they were on a watercourse. “Culverts” were pipes that watercourses flowed through.  Watercourse Regulations applied as much to culverts as to any other watercourse.

(4)       Mr Tant then explained that a riparian owner was anyone who owned land adjoining a watercourse.  It was generally assumed that if land ownership stopped on either side of a watercourse, each landowner was responsible up to the middle of the watercourse.  It was generally assumed that a landowner was solely responsible for any ordinary watercourse between their land and a highway.  It was rare for the highways authority to have this responsibility, although they might be responsible for any highway drains if the road was built on land that they had purchased. Most drains next to the highway in Kent were not highways drains and therefore not the responsibility of KCC to maintain.

(5)       Mr Tant went on to set out riparian rights. These were to receive the flow of water in its natural state; to protect their property from flooding and erosion; to fish in their watercourses; and to abstract a maximum of 20m³ per day of water for domestic purposes and some agricultural uses.  Some of these rights conflicted with guidance from other processes; for example, the presumption against increasing flood risk in planning.  

(6)       Mr Tant said that there were more responsibilities than rights associated with riparian ownership.  The passage of water had to flow without obstruction, pollution or diversion.  It was also a responsibility to accept flood flows through the land, even when it was caused by inadequate capacity downstream as there was no common law duty to improve a watercourse, and in consequence no obligation to enlarge a watercourse to protect anyone else’s property from flooding. Other riparian responsibilities were to maintain the bed and banks of the watercourse; to not dispose of waste in the watercourse; to keep the bed and banks clear of any matter that could cause an obstruction; to keep any structures such as culverts, trash screens or weirs that they owned; to protect their property from seepage; and to maintain any culvert on their land.  

(7)       Mr Tant then said that land drainage authorities had some powers over the watercourses in their jurisdiction.  Various authorities had different powers in various forms over ordinary watercourses.  The EA had authority for main rivers.  Their consent was required for a wide range of activities on or near a main river.   Internal Drainage Boards exercised powers on ordinary watercourses in defined districts.  They could adopt bye laws, which could give them some further powers over some watercourses in their districts. Lead Local Flood Authorities such as KCC had powers to consent works in watercourses outside the districts in the jurisdiction of IDBs.   They did not, however, have powers to adopt bye laws or to carry out works on ordinary watercourses without the permission of one of the other authorities.  District Authorities had powers to undertake works on ordinary watercourses and were able to adopt bye laws, although this rarely occurred.

(8)       Mr Tant continued by saying that some activities in a watercourse required consent from the appropriate land drainage authority if it was intended to carry out works that might affect the flow of an ordinary watercourse.  The EA and the IDBs were also able to consent works near a watercourse in order to ensure that the works did not obstruct their own ability to access it for maintenance purposes.   Land drainage consent was separate from planning permission, and the one did not confer the other. This was the case when a planning permission was granted for a development across a watercourse.  An inexperienced developer might not realise that land drainage consent would be required for the construction of a culvert as part of the permitted development.

(9)       Mr Tant concluded his presentation by saying that enforcement on ordinary watercourses was very difficult.  Lead Local Flood Authorities did have such powers, but they were very limited in scope.  The EA had slightly stronger powers over main rivers whilst the LLFAs and IDBs had powers of enforcement for maintenance and unconsented works in ordinary watercourses.  This was limited to carrying out the work themselves (and recharging for it, or paying compensation for any damage).  Landowners could not be compelled to improve their watercourse, even if it was causing flooding.

(10)     Mr Hills said that the EA was trying to pressure IDBs to take over main rivers, even though they did not have the same legal powers.  This included some of the very old pumping stations along the rivers. This proposal seemed to be shifting the burden onto local rate payers.

(11)     Mr Tant replied that he was aware of the “de-maining” proposal and he considered that it would present an opportunity for the IDBs to carry out works that they considered necessary, but which the EA had given a lower priority to.  It needed to be very carefully developed as it represented risk as well as opportunity. 

(12)     Mr Bowles said that he had been a riparian owner. He had also served on IDBs for 23 years, both as a Local Authority and as an elected landowner representative.   He believed that the discussions on the future role of the EA would have great implications. He was concerned that the likely end result would be that the local tax payers would end up with financial responsibility in many areas which were currently the responsibility of others.   

(13)     Mr Henshaw asked if there was a legal difference between a pond and a lake.  Mr Tant replied that he was unaware of any legal definitions.  The two categorisations were probably historical, following convention rather than specific definitions.

(14)     Mr Terry asked who was responsible for keeping all the records up to date.  He pointed out that watercourses did not always follow the same line. Mr Tant replied that nobody was responsible for mapping any watercourse except for main rivers.  According to the law of ad medium filum, the land boundary of a watercourse followed its exact location at any given time.  There were exceptions to this law, such as if the boundary of a watercourse changed very rapidly due to erosion or a man-made obstruction.   Further details could be found on the Land Registry’s website.

(15)     Mr Tant replied to a question from Mrs Stewart by saying that there would probably be some benefit if LLFAs were able to make their own bye laws.  An example would be if they were entitled to set their own maintenance distances for planning purposes.  The reason that the ability to make bye laws had not been given to them under the Flood and Water Management Act was that a number of Districts wished to continue to carry out their own maintenance work.   The power to do such works was the reason for having the entitlement to make bye laws.

(16)       RESOLVED that the report be noted and that Max tant be thanked for his presentation.