The issue of riparian rights is a complex and, at times, confusing area of law that is becoming increasingly important for developers and landowners alike. It is also an area in which there is likely to be possible future reform.
With the changing seasons landowners face uncertain and sometimes difficult issues with respect to such rights, from increased flow in winter months to reduced flow in summer months.
What are riparian rights?
Riparian rights are the rights held by the owners of land over which a river flows. They are very old rights, dating back to the law of ancient Rome.
Ancient though their origin may be, these rights are as relevant in modern Scotland today as they were in Roman times. With 85% of the UK’s hydroelectric energy resource in Scotland and smaller hydro power schemes becoming more cost effective to run, riparian rights have become a renewed focus of attention for both developers and landowners.
Who owns riparian rights?
Running water is as ownerless as sunlight and air. But the riparian owner is able to make use of the running water as it passes through the land in their ownership. As such, who owns the riparian rights depends on who owns the land over which the river runs.
If the river runs solely through a person’s land, that person will own the rights. If the river then runs through another’s land and on through yet another’s, each owner will have riparian rights in respect of their successive part of the river up to the boundary in their title. There is a legal presumption that where the boundary between two parcels of land is a river, the owner of each parcel will own the alveus (riverbed) up to the mid-point of the river. This presumption is, however, rebuttable, and it may well be that the legal title provides that the whole of the riverbed is within the title.
In nature, the course of the river may alter. The scouring effect of water might erode one side of a riverbank and lead to deposits of silt on other parts of the river. Where a title is bound by a river this can lead to changes in the boundary of the title. In turn, this may affect ownership of the riparian rights. There can therefore be a variety of owners of riparian rights in one river and a variety of interests that may be affected by interference, such as abstraction of water.
What are the basic riparian rights?
The primary concept is that a riparian owner has a right of common interest in the river. This means that the lower or downstream owner is entitled to receive the natural flow of the river.
Case law talks about the riparian owner being entitled to the natural flow of water “undiminished in quantity, unpolluted in quality, and unaffected in force and natural direction and current, except in so far as the primary uses of it may legitimately operate upon it within the lands of the upper heritor”. Primary use has been held to be that generally used for a domestic purpose but includes use for animals, including cattle.
Opposite proprietors have the right to oppose any use of the water other than for “domestic” use. There are competing cases on whether a riparian owner can remove water for secondary purposes like agriculture or industry.
Some cases suggest a very extreme position that no consumption for secondary purposes is permitted at all, while other cases suggest that a riparian owner can only object to water being used for secondary purposes if the use causes a material disturbance. It is considered that the requirement for a material disturbance reflects the current law in Scotland. What is material is always going to be a question of fact and degree depending on the volume of water in the river and how much water is being removed.
Hydro schemes and riparian rights
It is clear from the case law that at common law the abstraction of water on the scale required for a hydro scheme would likely breach the rights of downstream and opposite proprietors. The rights could also be breached if the flow of the stream or river was affected.
The proprietor of a hydro scheme has a common interest obligation not to interfere with the natural flow of the river. It has been held that abstraction for use for power is permissible only if the water is returned to the stream prior to reaching the downstream proprietor.
The appropriate remedy for a breach of riparian rights will most likely be interdict (otherwise known as injunction). That may have serious consequences for the operator. Not only will planning permission and licences from the Scottish Environment Protection Agency be required for hydro schemes, but consent of riparian owners may also be needed.
Possible reform
A number of jurisdictions, such as South Africa and Norway, have reformed their rules on private water rights over recent years. There have also been some significant court cases in Australia and the United States regarding private rights over water supply.
In Scotland in 2014, the Land Reform Review Group identified private water rights as an area which should be considered for possible legal reform. Any process of reform in this area will require discussion with landowners and other stakeholders, but with the focus on a green recovery and the advent of not only small hydro schemes but “micro” and “pico” schemes, this is very much a “watch this space” situation at present.
Water, water everywhere?
This is Scotland… we have too much water, don’t we?
Water is ultimately a finite resource. While most of us might joke about the Scottish summer being a “blink and you miss it” one day (if you are lucky) event, the months of June to August generally tend to be warmer and drier than other times of year.
As of June 2025, the UK Centre for Ecology and Hydrology is predicting warm weather for the summer months. However, with good weather comes increased pressure on our natural water resources. While it has been 30 years since the last full hosepipe ban in Scotland, Scottish Water have been at pains to point out that the start of 2025 has been the driest since the 1960s and to be mindful of water use.
In the realm of Riparian Rights, drier spells can cause disputes to arise between landowners. How then does the law tackle such issues?
The industrial revolution brought a change in water usage and, consequently, introduced pressure on this finite resource. Inevitably, this led to disputes between owners, especially where water-intensive industry was concerned. The majority of the riparian rights Scottish case law that we rely on today dates back to the 19th century, building on Roman law concepts and principles.
Scots law implies a right of common interest in the river to riparian owners, which creates reciprocal rights and duties. There is common interest in maintaining the natural flow of the river. Scots law does also appreciate that water by its very nature will be consumed, with a distinction drawn between primary purposes and secondary purposes.
Where water is consumed for primary purposes, the upstream owner has the full use of the water for primary use and there is no limit as to how much water may be consumed for primary purposes even if that results in less water or indeed no water for the other landowners downstream. There is no obligation on the landowner to restrict their use to ensure supply downstream. Similarly, the owner downstream cannot complain if there is increased use for primary purposes because there are more cattle or more individuals living in a property.
The right to use water for primary purposes is, however, not without restriction:
- surplus water must be returned to the river; and
- water must be consumed on the river or on land immediately adjacent and cannot be removed for other land further away, unless there are other legal rights to do so.
The legal onus (or burden of proof) is on the party removing the water to show that they have returned any surplus water that was not consumed.
Use for secondary purposes is more complicated and might constitute a breach of common interest in the river if the use is material. This may result in a landowner seeking an interdict (injunction) to prevent such use.
While our existing case law dates back to the 19th century, the dual pressures of climate change and increased demand may well see new developing case law in this area.
For more information, please contact our rural disputes team.