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Land Drainage

The Flood and Water Management Act:2010 has changed the way land drainage and flood risk are managed. Under the Act Essex County Council has become the Lead Local Flood Authority with increased responsibilities.

For more information about the current arrangements:

Essex County Council - Drainage and Flooding

What is Land Drainage ?

Land drainage is the disposal of rainwater, achieved by a network of watercourses of various types. The law on land drainage is not very clear and many people are unaware of its existence.

Main river or ordinary watercourse?

Major watercourses and rivers such as the River Cam north of Henham or the Pincey Brook at Takeley are designated "main rivers". These are under the control of the Environment Agency and the Agency is the relevant Operating Authority. All enquiries relating to the operation of main rivers should be referred to the Agency, click here to see the contacts list."Main rivers" are shown on maps held by the Environment Agency.

Almost all other watercourses, including streams, ditches (whether dry or not), ponds, culverts, drains, pipes and any other passage through which water may flow, are defined as "ordinary watercourses." In the case of ordinary watercourses, the Essex County Council is the Operating Authority. Exceptions are:

1) "Public surface water sewers" which are the responsibility of the sewerage undertaker, Thames Water or Anglian Water. These sewers are shown on the public sewer plans held in the District Council's Building Surveyors Section and available for inspection at the Saffron Walden offices between 8.30am and 5.00pm (Monday to Thursday) or 8.30am and 4.30pm (Friday).

2) "Highway drains" which drain public highways only and are maintained by Essex County Council or the Highways Agency, the highway authority. The County Council is responsible for the drainage of all public highways in Uttlesford with the exception of the M11 and A120. The Area Highways Manager can be contacted on 0845 6037621 or email highways.westarea@essex.gov.uk. The M11 and A120 are the responsibility of the Highways Agency.

Who owns the watercourse ?

The owner of land or property adjacent to a watercourse is known in legal terms as the "riparian owner" of the watercourse. Often the watercourse will form the boundary between two properties and the deeds may indicate a single owner. If not both adjacent owners have equal responsibilities as riparian owners. The special case of roadside ditches is dealt later.

What are the responsibilities of a Riparian Owner?

The Land Drainage Act 1991 requires that a watercourse be maintained by its owner in such a condition that the free flow of water is not impeded. The riparian owner must accept the natural flow from upstream but need not carry out work to cater for increased flows resulting from some types of works carried out upstream, for example a new housing development.

How is the operation of the land drainage network maintained?

There are a number of pieces of legislation designed to ensure that the land drainage network operates satisfactorily.

1) If a riparian owner fails to carry out his responsibilities under the Land Drainage Act, or if anyone else causes a watercourse to become blocked or obstructed, Essex County Council has powers of enforcement by serving a notice under section 25 of the Act. If this is ignored, the County Council may carry out the necessary work itself and then recharge the person responsible for the full cost incurred. The person responsible may also be prosecuted for nuisance under the Public Health Act 1936.

2) Anyone wishing to carry out work in, over or adjacent to an ordinary watercourse must apply for consent from the County Council, under Section 23 of the Act, so that the proposals can be assessed for their effect on the drainage network and the environment.

What consents are required for such work? 

If you wish to place or construct anything, such as a dam, weir, headwall or culvert, which may affect the flow in a watercourse, you must obtain the written consent of Essex County Council.

This consent is in addition to any planning or building regulation approvals you may need.

Current policy is to resist the piping of ditches and, indeed to remove pipes to restore open watercourses wherever possible. The consideration of an application will also take into account the fact that, while a pipe may allow the flow of water, it is not able to provide the storage capacity of an open ditch in times of heavy rain and may be more difficult to maintain. Watercourses also provide valuable wildlife habitats.

What other legislation applies to ordinary watercourses ?

1) Discharge - Certain discharges to watercourses require the consent of the Agency, which will be able to advise you on this subject. These discharges include outfalls from septic tanks and private sewerage treatment plants.

2) Pollution - If you feel a watercourse may be polluted you should contact the Agency or the District Council's Environmental Services Section

3) Planning - If you propose to discharge surface water from a new building or development into an existing watercourse you may be required to make improvements downstream (to enable the watercourse to deal with any increased flow) or to provide storage to control the rate of flow from the site.

4) Environment Agency By-laws - The Agency may have additional by-laws that affect ordinary watercourses. The appropriate office will advise you.

Roadside Ditches

The riparian owner of any ditches alongside roads is normally the adjoining landowner, as the highway boundary invariably lies along the top of the bank closest to the road. Thus, although the road may drain into the ditch, the landowner is responsible for maintaining it. When the condition of a ditch is such that it is causing flooding on a highway, Essex County Council, the Highway Authority, is likely to take action against the riparian owner.

However, if the County Council, the highway authority, have piped the ditch under their highway powers, they become responsible for its maintenance. Likewise, any pipe beneath the highway is the responsibility of the County Council. When the condition of a ditch is causing flooding on a highway it will be the County Council that takes action under the Land Drainage Act.