At common law, the responsibility for the maintenance of watercourses rests with the adjoining owner(s). As a general rule, where a watercourse runs between land in two separate ownerships, each owner is deemed to own to the midpoint of the channel, unless proof of contrary ownership can be shown. As different owners have different priorities, needs and expectations as to the standard of drainage required or appropriate it is hardly surprising that problems occur especially when, for example, the level of maintenance varies along a particular watercourse depending on the adjacent owner, and where upstream owners suffer due to a downstream owner failing to adequately maintain their respective lengths. For this reason the Commissioners/Boards have permissive powers to “adopt” the most critical watercourses to ensure they are maintained adequately to provide an effective arterial drainage network, and to protect these Watercourses by Byelaws. The ‘adoption’ of a watercourse does not, however, remove the obligations of the respective adjoining owners but simply designates a watercourse as one in respect of which the legal powers of the Board should from time to time be exercised.
From time to time watercourses will be adopted and abandoned due to changes in circumstances. The criteria detailed below have therefore been drawn up to support the decision as to which watercourses should be adopted and which abandoned. These criteria are intended to be used to provide guidance to the decision making process when in future a land owner asks for a watercourse to be adopted or abandoned. Every case will however have to be judged on its own merits, as the complexities and peculiarities of individual cases cannot be encompassed within standard guidelines.