Riparian ownership

In most circumstances, trees, hedges and ditches that adjoin a highway, fall under the ownership of the adjacent landowner.  Examples of hedge and ditch ownership and responsibility are:

• A ditch within a field which is on the inside of a hedge acting as land and highway drainage. This is the responsibility of the riparian landowner.
• A ditch which is on the outside of a hedge and adjoins a highway taking land and highway drainage. This is the responsibility of the riparian landowner.
• A ditch that was constructed by the highway authority, for the sole provision of highway drainage. This is the responsibility of the highway authority.
• Grip cuts in the verge are the responsibility of the highway authority.

Figure 1: Responsibilities for roadside ditches, hedges and trees

Riparian land ownership is a legal term given to a householder, business owner or other landowner who owns land adjacent to a watercourse (river, stream, highway ditch etc.) Riparian landowners are responsible for the maintenance of watercourses, including highway ditches, to ensure the normal flow of water. Lead Local Flood Authorities (LLFAs) and the Environment Agency have permissive powers to require riparian landowners to carry out maintenance work where flood risk is a concern.

Riparian landowners have a right to protect their property from flooding and erosion, however you should always discuss proposals with the Lead Local Flood Authority (LLFA), the Environment Agency or the Internal Drainage Board (IDB) as certain types of work require prior consent. Further information can be found in the Environment Agency’s document ‘Living on the Edge’.

Common Law – Responsibilities for highway ditches, hedges and trees

In most instances it is recognised that hedges and ditches adjacent to highway roads are likely to have been in existence for many years. Under common law, the general rule is that when the highway ditch was originally created, the spoil from the ditch would have been used to create the hedge line. The boundary line would therefore lie on the outside edge of the ditch, where it meets the highway verge. There may be certain situations in which this may not apply, depending on varying factors such as the age of the ditch, or evidence such as historic legal agreements or land registry documents. If you are unsure of your ownership of a highway ditch and potential maintenance responsibilities, you should contact Shropshire Council in the first instance and we will be able to check our records.

There are two types of drainage ditch, those being:

• Ditches created for the sole purpose of draining the public highway and maintained by the highway authority
• Ditches that serve as land drainage, for instance agricultural land, privately owned and maintained

The Highway Authority has permissive powers to drain the highway into roadside ditches and watercourses and can cleanse and restore the profile of these ditches as appropriate and recharge the landowner where necessary. Common Law imposes a duty on the owner of land adjoining a highway to maintain these ditches that provide natural drainage for both the land and highway. In view of this in the majority of cases the responsibility for ditch maintenance rests with the adjacent landowner and this includes sections of ditches which have been culverted (piped) such as for access purposes to your property.

Drainage grips are sometimes dug into the highway verge to carry excess flow from the highway into adjacent ditches. These are often found in rural areas where there is no other effect method of drainage such as road gullies or drains. Where these have been installed by the highway authority, they will generally hold responsibility for them.

Maintenance to highway ditches, hedges and trees

Carrying out any maintenance work to ditches, hedges and trees under your ownership must always be done with consideration for biodiversity. Many species of plants and animals are protected under the Wildlife & Countryside Act 1981, such as the protection of nesting birds. It is therefore advised that any maintenance you carry out is planned at the most sensitive time of year, which is often deemed to be September to early March, in the case of nesting birds.

Typical maintenance activities might include:

• Removal of blockages and obstructions
• Managing vegetation, hedge cutting or tree works
• Removal of silt and sediment
• Maintaining any structures, including culverts, pipes or outfalls from your land

Consideration should also be given if you suspect there to be non-native species within a ditch or hedge under your ownership. Common types on invasive non-native species include Japanese Knotweed and Himalayan Balsam, with both being listed within the Wildlife & Countryside Act 1981, schedule 9, Part 2. If you suspect the presence of an invasive non-native species on your land then further guidance can be found on the GOV.UK website.