The battle for England’s waterways

Nick Hayes on the fight for riparian rights, with anglers and kayakers as its focal point

October 22, 2019 · 8 min read

The rivers of England are a tetchy battleground, a pronounced expression of England’s unequal, unfair property system, which has been more than a millennium in the making. Of the 42,700 miles of inland waterways in England, the public has a right of access to 1,400 miles, just 3 per cent. In England, if you’re by a river, on a river or in a river, there’s a 97 per cent chance that you’re not allowed to be there.

Just as the idea of a ‘trespass’ can reframe a walk in the countryside as an attack on the rights of property owners, so it is with public access to kayak or swim along rivers

Rivers and their banks are subject to a category of legislation called riparian rights. While the Crown is said to own the water that flows through a river, the landowner holds the rights to the riverbank, which extends across its bed towards an imaginary line drawn halfway across the river. To kayak or swim along a stretch of river, technically you should have permission from each and every one of the property owners on the banks, meaning the long stretch of open water is legally divided up into an invisible grid of lines, each under the control of the owner of that section of land.

The ownership of the river has been divided into various components, so they can be rented and sold as separate entities. When the Liberty Stadium, home to both the football and rugby clubs, was built in Swansea, a 70-foot bridge was erected over the river Tawe so people could actually get to it. For the privilege of building this city amenity, the council had to pay the Duke of Beaufort, who lives 90 miles away in Badminton House, £280,000 for an easement (a right of way over private property) because for the past 400 years, his family has owned the riverbed.

Fierce enmity

But it is the rented fishing rights, usually but not always conjoined with the ownership of the bank and the bed, that have created a fierce, ongoing enmity between fishers and other users of the rivers. Principal among these are the kayakers. The battles that flare between them and the fishers are a modern expression of the old poacher/gamekeeper dynamic.

Kayakers can’t help but undermine the dominion of modern riparian rights. Fishing on rivers is by and large a fixed pastime, rooted to one spot, and property is comfortable with that notion: if you want this spot, it belongs to me, but you can have it for a price. But kayakers and swimmers slide through boundaries like water and are too slippery for property rights to get a grip on. Without a toll-booth on every boundary line, property has not yet found a way of profiting from kayakers, and so they are categorically banned from all rivers and lakes that lack a specific act of parliament to give them access.

A spokesperson for the Angling Trust said in 2012: ‘The Angling Trust has been challenging the claims being made by militant canoeists that they should have a right to paddle up every river, stream or brook in Britain irrespective of ownership or the impact this has on wildlife or other people’s enjoyment. The rights of navigation are clear in law and there are thousands of miles of navigable rivers and waterways to which canoeists have legal access.’

Everything about this statement is disingenuous, even down to the ‘s’ at the end of ‘thousand’. The high-octane rhetoric of ‘militant’ is typical of the fishing lobby groups and is incongruous to the point of surrealism. The reference to wildlife is also sly, and in spite of being repeatedly proven otherwise, it remains a dominant tactic of the fisher-kings.

In 2000, the Environment Agency produced a report that stated conclusively: ‘There is no empirical evidence linking canoeing with damage to fish spawning grounds or damage to fish stocks.’ It added: ‘There is unlikely to be any significant impact on or lasting disturbance to wildlife from the passage of canoes.’ But still, kayakers report stones and lead weights thrown at them, threats hurled, and some are still paying off thousands of pounds of court costs for cases they have lost against fishermen. Suddenly, the peaceful river is an incongruous world of binary opposition, imposed by the idea that one right supersedes all others because it has been purchased.

Magna Carta

In 2004, Revd Dr Doug Caffyn wrote a master’s thesis entitled ‘The right of navigation on non-tidal rivers and the common law’. This claimed that there was a right of public access to all rivers between 1189 and 1600, a right confirmed by Clause 33 of the Magna Carta, and again in the 1472 Act for Wears and Fishgarths. The dissertation was hotly disputed by the fisher-kings.

Speaking to the BBC in 2013, the CEO of the Angling Trust, Mark Lloyd, said: ‘The law of the land is absolutely clear – there is no universal right for people to canoe on non-tidal waters.’ He had commissioned his own report by QC David Hart, who claimed that the crux of a claim for a public right of navigation boils down to two points: first, whether the river is navigable and second, whether it has been used as such for ‘time immemorial’ (a romantic phrase that has different interpretations across national borders). Both aspects need to be proved ‘before navigation rights can be acquired against riparian owners’. The last four words show how the cards are stacked against the public.

In these other countries, the right of access to rivers is a common right, and the right to fish, or deplete the resources of a common wealth, must be bought

Just as the idea of ‘trespass’ can reframe a walk in the countryside as an attack on the rights of property owners, so too public rights along rivers are described as being ‘acquired’ and ‘against’ the private rights of owners. Yet the only thing kayaking takes from fishing is its exclusivity.

In 2013, Nigel Saul, a professor of medieval history at the University of London, delivered a lecture to parliament on the history of the constitution at which he said: ‘Clause 33 was to be of enormous significance in the history of navigation in this country because it established the principle of free passage along England’s rivers, so laying the foundations for transport development in the industrial revolution.’

Professor Saul’s position starts from the opposite of the Angling Trust, with the view that rivers were always open access until they were privatised – in other words, in line with the entire history of land enclosure, private rights were acquired against those of the public.

However, Clause 33 is actually very vague. It demands that all fish-weirs should be removed across the inland waterways of England, essentially providing that there should be no blockages, or tolls, to impede free passage on the waters. It leans on an implicit understanding that waterways are free and therefore should not be blocked, and the fact that not one toll receipt has been found in the history of river navigation does seem to support this. But, as David Hart argues, nowhere is this explicitly stated in law.

Fisher-kings

The Angling Trust has written to the canoeing governing bodies, offering the possibility of limited voluntary access, with various demands whose paternalism is rank even on their own website. They ‘demand’, among other points, that the canoe organisations: ‘Recognise and accept the law as it is (rather than as they would prefer it to be); stop (wrongfully) asserting that the law is unclear; stop discouraging paddlers from considering or entering into voluntary access agreements or arrangements; stop encouraging paddlers to ignore the legal rights of others, commit trespass, and obstruct water bailiffs, anglers, fishery owners and riparian owners.’

This hardly sounds like compromise. And it’s not just kayaking: any sort of walker, wild swimmer and general hot-day toe-dangler is banned from our rivers.

Australia, which has the same common law as England, interprets it differently: ‘While there is no public right to fish in non-tidal rivers, there is a public right to navigate a navigable river for all that can navigate it.’ Norway, Finland, Sweden, Bulgaria, France, Hungary and Belgium all allow public access to their rivers and in Scotland (following the Land Reform Act of 2003) people have a general right of recreational access to all inland waterways. In these countries, the right of access to rivers is a common right, and the right to fish, or deplete the resources of a common wealth, must be bought.

The demands of the likes of the Angling Trust come from an interpretation of common law that assumes priority by right of property. If England’s system assumed the opposite – that low impact access to rivers is a right to all – then there would be no cause for enmity.

Nick Hayes is an illustrator and writer who can be found on instagram at nickhayesillustration. Hist forthcoming book about trespass is to be published by Bloomsbury in August 2020.


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