Ditch responsibilities explained

Where a watercourse runs adjacent to or through your land you are a 'riparian landowner'. Watercourse is the collective term for both ordinary watercourses and main rivers. An ordinary watercourse is a river, stream, brook, ditch, drainage channel, culvert, or any other channel through which water may flow which is not designated as a main river. For more information about general riparian responsibilities please visit our 'responsibilities: ditches and riparian owners' page.

This note has been produced to provide clarity on the status of ownership and responsibilities associated with ditches. West Berkshire Council acknowledges that the burden of responsibility for maintaining a ditch can be challenging for landowners, but it is a necessary duty to protect adjacent land, properties, highways and other critical infrastructure from flooding and/or pollution.

A ditch is a man-made feature which has been created to drain an area of land. Ditches are not always shown on OS mapping. Historically these were normally dug by a landowner at the edge of their field and the spoil deposited on their land, on which hedges grew over time. As a result, the common law 'hedge and ditch' rule says the landowner responsible for maintaining the ditch is normally the landowner on the hedge's side of the ditch. This has become a principal by which many local authorities determine who is responsible for maintaining a ditch.

We have divided ditches into two categories "highway ditches" and "land drainage ditches" which would be the responsibility of the highway's authority, or landowner respectively.

Highway ditches

Many local highway authorities (including West Berkshire Council) have taken the approach that even if a ditch runs adjacent to a highway, that does not necessarily make it a highway ditch. This applies even if highway surface water drains into the ditch. The common law 'hedge and ditch' rule has relevance in relation to ditches running alongside a highway which are often assumed the responsibility of the adjacent landowner despite their location and highway draining function.

The principle in law is that where there is a ditch the highway boundary is the roadside edge of the ditch, this applies if the ditch has been piped or infilled (by natural erosion or otherwise). This is a rebuttable principle and there are exceptions where a ditch may fall within the public highway:

1. the Land was purchased by the Highway Authority for a scheme, highway was created, and the ditch falls within the area of land purchased
2. the ditch was excavated by the Highway Authority for highway drainage purposes
3. if the ditch has been piped by the Highway Authority and compensation was paid to the adjacent landowner

If any of the above exceptions apply to a particular ditch, West Berkshire District Council may have additional records pertaining to that ditch.

In addition, West Berkshire Council may use engineering judgement, or common sense when determining whether the highways authority or a landowner is responsible for a ditch or not. A ditch may be a highways ditch:

• if the highway and ditch is located at a higher elevation than the adjacent land
• if the extent of highway draining to a ditch is observably/measurably greater than the extent of land that drains towards the ditch
• if the adjacent land has recorded or observable land drainage features at the boundary (such as another ditch, SuDS, filter drains, etc.)

In the example above the ditch would be considered a highways ditch as it serves the highway and is unlikely the ditch was ever used to drain the adjacent land which slopes away from the ditch.
 

In the example above the ditch would be considered a land drainage ditch despite serving the highway, as the adjacent land falls towards it and sheds and surface water runoff in that direction.

If a landowner wishes to contest the allocation of a ditch as a land drainage ditch they will need to provide evidence as to why this is the case. West Berkshire Council will always seek to work with landowners where possible.

West Berkshire District Council is responsible for highway drainage maintenance as the local highway's authority. West Berkshire Councils policies and procedures regarding highway drainage maintenance are subject to change. For information regarding highway drainage, please visit our highway drainage page.

Land drainage ditches

As noted above, in most instances across West Berkshire, ditches will be assumed to be land drainage ditches due to common law, or riparian ownership:

• if your land boundary is next to a watercourse it is assumed you own the land up to the centre of the watercourse, unless it is owned entirely by someone else
• if you own land with a watercourse running through or underneath it, it is assumed you own the stretch of watercourse that runs through your land

This applies even if the highway sheds surface water into the ditch.

For more information regarding riparian rights and responsibilities, maintaining ditches, working near watercourses or changing watercourses please visit our land drainage and ordinary watercourses page.

Disclaimer: West Berkshire District Council hopes that this document is useful. However, it is not intended to be a definitive statement of the law on all instances, and you should seek your own legal advice.