Adoption & Abandonment of Watercourses.
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.
2. Watercourse Adoptions
Watercourses which fulfil the following criteria should be considered for adoption:
- A watercourse which serves an arterial function within the catchment and on which it is proper that public money should be spent. These will generally be watercourses with more than one adjoining owner/occupier, or which cater for more than one owner/occupier within its catchment and which have the propensity to cause persistent drainage problems, or could do if a perceived change in circumstances was to take place, where effective maintenance and from time to time appropriate improvements would prevent these problems from occurring. If an improvement scheme is required to be undertaken, then the benefit of this must outweigh the cost. It is likely that any watercourse considered for adoption would have to be put in a suitable condition for such adoption at the expense of the relevant landowner(s)/developers.
- Consideration will also be given, when deciding whether or not to adopt a watercourse, to whether access is available alongside the channel and to the implications of retrospectively applying the Byelaws to the adjacent owners/occupiers, particularly the Byelaw which prohibits, without consent, development within 9m of the watercourse. In the case of the Middle Level Commissioners, this width is 20m.
3. Watercourse Abandonments
Watercourses which fulfil the following criteria should be considered for abandonment:
- A watercourse which does not or has ceased to serve an arterial function within the catchment or on which it would be inappropriate for public money to be spent. These are generally watercourses, which either have only one affected owner/occupier, where there are multiple riparian owner/occupiers or multiple owners within the catchment and the drainage needs of the area are better otherwise served, or where the watercourse has become redundant for its original purpose, and in each case the abandonment would not cause a drainage problem.
- Upon abandonment, the maintenance responsibility for the watercourse will pass to the relevant owner.