Keen to avoid a repeat of the widespread flooding of the summers of 2007 and 2008, the Environment Agency are now taking proactive steps to mitigate and, where possible, to prevent such an event occurring again.
Temporary barriers, such as those at Worcester and Upton on Severn, and the demountable barriers at Bewdley (all on the River Severn), are amongst the more visible face of the proactive steps taken by the Environment Agency to alleviate the impact of flooding. However, prevention is also key. The Environment Agency is therefore keen to emphasise that the legal responsibility for drainage of most land lies with landowner.
The duties of owners of land adjacent to a watercourse (known as ‘riparian duties’) are based upon the legal presumption that in most cases the landowner (the ‘riparian owner’) owns the adjacent watercourse up to its mid-point. If the landowner owns land on both sides of a watercourse (such as with a drainage ditch), their riparian duties will extend to the whole width of the watercourse, so far as it passes through their land.
The riparian owner is required to maintain the bed of the watercourse and to keep it free from obstruction. There is however no duty to ‘improve’ the watercourse, for example, by widening it, or excavating the bed of the watercourse beyond its usual, natural, unobstructed state.
In the event that a watercourse should become obstructed, notice to remedy that obstruction may be served by the relevant authority (such as the Environment Agency or a local authority) upon:-
The person or persons having control of the land/watercourse at the point of the blockage;
- The person or persons who own the land adjoining the obstructed area of the watercourse; or
- The person whose act or default has caused the obstruction to the watercourse.
Amongst other things, the notice should identify the works considered necessary to remedy the obstruction and provide a reasonable period within which those works must be carried out.
The recipient of an enforcement notice has a right to appeal the notice to the magistrates’ court within 21 days of its receipt. Other than the usual right to appeal any deficiencies in the notice, the grounds upon which such an appeal might succeed include:-
Unless the specified works are completed within the time specified in the notice, or the recipient of the notice successfully appeals it, the relevant authority may carry out the works and recover the cost of doing so from the defaulting recipient. In addition, a recipient in default of an enforcement notice may be liable to prosecution in the magistrates’ court and to a substantial fine on conviction.
Less commonly used, a ‘private’ procedure allows a landowner to apply to the Agricultural Land Tribunal (ALT) for an order permitting the applicant to carry out works to a watercourse on a nearby landowner’s property. Such an order will however only be granted where the works are necessary to prevent damage to, or to improve drainage upon the applicant’s own property.
The Environment Agency recognises that the majority of landowners do maintain their land and watercourses responsibly. They are however keen to encourage landowners to undertake additional voluntary measures to assist with the alleviation of flooding over the wider geographical area. They have therefore recently published guidance about some ‘soft measures’ that landowners can adopt to try to reduce the run-off rate of rainwater from land, thereby mitigating the impact of future episodes of heavy rainfall. These include:-
- Avoiding cultivations up to the margins of the field next to watercourses in order to reduce direct runoff;
- Creating beetle banks or grassy buffer strips alongside streams and watercourses in order to divert and/or slow down runoff; and
- loosening the soil and creating a rough soil surface after harvest, and leaving it for as long as possible to allow water to soak in rather than run off.
(see ‘Best Farming Practices’ published by the Environment Agency for details of these and other suggested voluntary measures)
The highly visible and wide ranging impact of recent episodes of severe flooding in the mean that it is increasingly possible that landowners or occupiers may be contacted by the authorities, or even neighbours, with requests to carry out works of maintenance upon their watercourses.
For further information about public or private enforcement of riparian duties, please contact Paul Rice.
